In Gershenson v. Local 52, No. 151180/2021, 2022 WL 3010192 (N.Y. Sup Ct, New York County July 28, 2022), the court held, inter alia, that plaintiff sufficiently alleged claims of retaliation under the New York State and City Human Rights Laws. (I wrote about the court’s denial of defendants’ motion to dismiss plaintiff’s claims of discrimination here.)
The court summarized the “black letter” law governing this claim as follows:
Pursuant to Administrative Code § 8-107(7), as pertinent here, “[i]t shall be an unlawful discriminatory practice to retaliate or discriminate in any manner against any person because such person has opposed any practice forbidden under this chapter.” Executive Law § 296(7) contains a similarly worded provision. To state a claim of retaliation under the NYCHRL and NYSHRL, plaintiff must allege that she was engaged in a protected activity, that her employer was aware of such activity, that she suffered an adverse employment action, and that there exists a causal connection between the protective activity and the adverse action.
Protected activities under NYCHRL are actions taken in opposition or as a complaint about unlawful discrimination. The action need not be explicit (Albunio [v. City of New York], 16 NY3d [472,] 479 [jury could determine that plaintiff opposed discrimination although “she did not say in so many words that (candidate) was a discrimination victim”]) nor need it satisfy any formality (Spiegler v Israel Discount Bank of New York, 2003 WL 21488040 [S D N Y 2003]; see Fletcher v Dakota, Inc., 99 AD3d 43, 52 [plaintiff’s comment to board member complaining that discussion about applicants’ ethnicity and religion inappropriate as protected activity]). Generalized, ambiguous or isolated complaints which do not clearly identify discrimination do not constitute protected activity. …
A causal connection between a protected activity and a negative employment outcome may be reasonably inferred from the passing of a brief period of time between the two. And, although there is no bright line rule, absent additional facts, a gap of five months or greater has been held to be too long to establish causation based on temporal proximity alone. The relevant period is measured from when the employer became aware of it, not from when the protected activity occurred.
[Cleaned up.]
Applying the law to the facts, the court explained that plaintiff alleges that she filed a discrimination against defendants Roper and Fellegara shortly after her election to the executive board, and that her duties and responsibilities were stripped “immediately after” her election to the board.
While it was unclear whether she filed the discrimination complaint before or after her duties were stripped, it was pertinent that plaintiff “attested that she ran for the executive board on an ‘anti-discrimination’ plank, which constitutes protected activity, under the liberal pleading standards of the NYCHRL.”
Accordingly, held the court, plaintiff stated a cause of action for retaliation.