Retaliation Claims, Arising From Complaints of Age Discrimination, Sufficiently Allege Against NYC Dept. of Education

In  DeLaRosa v. New York City Department of Education et al, 21-CV-4051 (JPO), 2022 WL 2752589 (S.D.N.Y. July 14, 2022), the court, inter alia, held that plaintiff sufficiently alleged retaliation, arising from complaints of age discrimination, under the Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law, and the New York City Human Rights Law.

From the decision:

Plaintiff has stated a retaliation claim under the ADEA, the NYSHRL, and the NYCHRL based on some allegations contained in the amended complaint. The ADEA makes it “unlawful for an employer to discriminate against any of [its] employees … because such individual … has opposed any practice made unlawful by [section 623 of the ADEA.” 29 U.S.C. § 623(d). To survive a motion to dismiss, a plaintiff must plausibly plead “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 n.6 (2d Cir. 2021) (quoting Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 130 (2d Cir. 2012)). The anti-retaliation provisions in the ADEA and the NYSHRL are “analyzed under the same framework.” Shih v. JPMorgan Chase Bank, N.A., No. 10-CV-9020, 2013 WL 842716, at *5 (S.D.N.Y. Mar. 7, 2013). Plaintiff alleges three protected activities in the amended complaint: (i) filing a discrimination charge with the New York State Division of Human Rights (“NYSDHR”); (ii) filing a second discrimination charge with NYSDHR; and (iii) filing this federal action. (See, e.g., FAC ¶¶ 15, 40, 48.)

Defendants move to dismiss the retaliation claim on the ground that Plaintiff has not adequately pleaded a causal connection between a protected activity and any adverse employment action. (See Defs.’ Memo at 20-24.) For the reasons set forth in Defendants’ memorandum, most of Plaintiff’s allegations indeed do not raise an inference of causation. “To adequately plead causation, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018). This means that a plaintiff must plausibly plead that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions or actions of the employer.” Lively, 6 F.4th at 303 (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 357 (2013)). This causal connection may be alleged “by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity.” Id. at 307-08. But it must be alleged.

Plaintiff articulates a causal connection based on timing alone (see Opp’n Memo. at 29), and such temporal proximity must be “very close” in time. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam). “[C]ourts in this Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation.” Gonzalez v. City of New York, 442 F. Supp. 3d 665, 688 (S.D.N.Y. 2020); see Lively, 6 F.4th at 307-08 (five-month gap). Plaintiff does not allege an adverse employment action within three months of the date when she filed her first or second charges with the NYSDHR. She attempts to do so in her opposition to the motion to dismiss, but she identifies only a “sarcastic[ ] email” in response (Opp’n Memo. at 28), which is not an adverse employment action, see, e.g., Zoulas, 400 F. Supp. 3d at 55.

Plaintiff has, however, alleged two adverse employment actions within three months of the date when she filed her federal complaint on May 3, 2021. First, the amended complaint alleges that Principal Delarosa denied Plaintiff summer work — and assigned that summer work to two other younger assistant principals — on or around May 20, 2021. (See FAC ¶ 41.) Second, the amended complaint alleges that Principal Delarosa gave Plaintiff an end-of-year rating of “Unsatisfactory” on June 15, 2021. (See FAC ¶ 45.) Plaintiff’s opposition to Defendants’ motion to dismiss further states that the rating “resulted in her being barred from working and earning per session income.”2 (See Dkt. No. 24 (“Pl.’s Opp’n) at 21.) “[A] plaintiff’s inability to pursue per session work as a result of poor performance reviews rises to the level of an adverse employment action.” Zoulas, 400 F. Supp. 3d at 54 (collecting cases).

The court concluded that these allegations adequately plead a causal connection that supports a retaliation claim.

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