In Franchitti v. Cognizant Technology Solutions Corp., 21-CV-2174 (JMF), 2022 WL 2657171 (S.D.N.Y. July 8, 2022), the court, inter alia, dismissed plaintiff’s retaliation claims asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law.
From the decision:
As noted, Franchitti brings a second set of retaliation claims under Section 1981, Title VII, and the NYSHRL based on the theory that Cognizant’s failure to settle his discrimination claims was itself a retaliatory act. See Compl. ¶¶ 62-63, 67-68, 79-80. Specifically, Franchitti alleges that “[h]e had settlement of this discrimination action revoked for challenging Cognizant’s discriminatory visa practices, thereby causing him to pay attorney fees, costs, and endure the additional trauma of reliving his Cognizant employment.” Compl. ¶¶ 62, 67, 79; see also Pl.’s Opp’n 7. Significantly, however, it is Franchitti’s well-pleaded factual allegations, not his characterizations of those allegations, let alone his legal conclusions, that control. See Iqbal, 556 U.S. at 678; accord Hamilton v. Westchester Cty., 3 F.4th 86, 90-91 (2d Cir. 2021). And given the allegations in the Complaint, it is simply inaccurate to assert, as Franchitti does, that Cognizant “revoked” a settlement. Instead, the allegations in the Complaint make plain that the parties never actually reached a settlement because they failed to agree on a material term — due to Franchitti’s refusal (or inability, as the case may be) to certify that he had no other pending claims against Cognizant given the qui tam case that he had filed. Compl. ¶¶ 22-24, 45-47; cf. Ciaramella v. Reader’s Dig. Ass’n, Inc., 131 F.3d 320, 323 (2d Cir. 1997) (discussing the factors to be considered by a court in deciding whether parties intended to be bound by an oral settlement agreement in the absence of a document executed by both sides, including “whether all of the terms of the alleged contract have been agreed upon”).
In any event, assuming for the sake of argument that Cognizant withdrew its settlement offer, that does not constitute an adverse employment action that could support a retaliation claim under Section 1981, Title VII, or the NYSHRL. It is true, as Franchitti notes, that “[t]he scope of the antiretaliation provision [in Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 67. Moreover, “in certain instances,” the anti-retaliation statutes “protect against post-employment retaliation.” Mira v. Kingston, 218 F. Supp. 3d 229, 235-36 (S.D.N.Y. 2016), aff’d, 715 F. App’x 28 (2d Cir. 2017) (summary order). But see Jian Zhong Li v. Oliver King Enters, Inc., No. 14-CV-9293 (VEC), 2015 WL 4643145, at *3-4 (S.D.N.Y. Aug. 4, 2015) (“Plaintiff has not cited a single post-employment retaliation case from this Circuit or elsewhere that did not involve either employment-related harm or a threatened legal claim against the plaintiff, and the Court has found none.”). But, as Franchitti himself concedes, see Pl.’s Opp’n 7-8, to qualify as adverse, an employment action must be “material” in that it would “dissuade[ ]” a reasonable worker from making or supporting a charge of discrimination, Cunningham v. N.Y. State Dep’t of Lab., 326 F. App’x 617, 619, 621 (2d Cir. 2009) (summary order).
Cognizant’s withdrawal of its settlement offer, such as it was, does not rise to that level. Franchitti was not entitled to settlement of his claims. And while he was well within his rights to reject Cognizant’s proposed settlement terms, it cannot be, as a matter of law, that Cognizant’s failure to acquiesce to terms preferable to Franchitti constitutes post-employment retaliation. See, e.g., Sicher v. Merrill Lynch, No. 09-CV-1825 (JBG), 2011 WL 892746, at *3 (N.D. Ill. Mar. 9, 2011) (“[Defendant’s] withdrawal of a settlement offer does not constitute an adverse employment action.”); Barriera v. Bankers Tr., No. 98-CV-3641 (MBM), 2003 WL 22387099, at *8 (S.D.N.Y. Oct. 20, 2003) (finding that the plaintiff had not alleged an adverse employment action where she “admit[ted] that she did not accept the severance package that [the defendant] offered”); see also, e.g., E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 502 (6th Cir. 2006) (“[Defendant’s] refusal to pay [the plaintiff] severance pay that she was otherwise not due or promised when she did not sign the Separation Agreement left her in the same position that she had been in before the offer …. As such, [she] was not adversely affected, and on these facts the denial of severance pay was not an adverse action for the purposes of the retaliation analysis.”); cf. Bernstein v. St. Paul Cos., Inc., 134 F. Supp. 2d 730, 733-34, 741 (D. Md. 2001) (holding that a jury could find retaliation where an employee had been unconditionally promised a certain amount of severance pay but was then told he could only receive the pay if he withdrew his EEOC charge and released the employer from other claims, which he refused to do).
Based on this, the court held that plaintiff’s settlement-based retaliation claims fail as a matter of law.