Retaliation Claims, Arising From Termination Following Complaints About Sexual Orientation Discrimination, Survive Summary Judgment

In Sanderson v. Leg Apparel LLC et al, No. 1:19-cv-8423-GHW, 2023 WL 2753200 (S.D.N.Y. March 31, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claims of retaliation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. Specifically, the court held that plaintiff provided sufficient evidence to support a jury finding that defendants’ “explanations for his termination may have been pretext for retaliation against Sanderson after he complained about discrimination based on his perceived sexual orientation.”

After summarizing the “black letter” law governing these claims (and confirming, based on plaintiff’s allegations, that he was claiming retaliation based on his complaints about discrimination based on sex/sexual orientation, and not race) the court applied it to the facts:

Sanderson, however, has provided sufficient evidence for his retaliation claims based on perceived sexual orientation to survive summary judgment. First, he has satisfied his prima facie case under all three relevant statutes. See Baines, 593 F.3d at 164 (for a plaintiff to meet his prima facie burden under Title VII and the NYSHRL, he must show: “(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”); Bilitch, 148 N.Y.S. 3d at 246 (noting that the prima facie requirements are more lenient under the NYCHRL). His September 11, 2017 email complaining about Romanino’s “boyfriend” comments constitutes protected activity. See Sanderson Email; Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (noting that an employee’s complaint qualifies as a protected activity “so long as the employee has a good faith, reasonable belief that the underlying challenged actions of the employer violated the law” (quoting Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001)). There is no question that Defendants knew of the protected activity. See, e.g., Aff. of Melissa Romanino ¶ 19 (Romanino noting that she shared Sanderson’s complaint with other Defendants and was interviewed about it). He suffered an adverse employment action in the form of his termination. See Vega, 801 F.3d at 85. And the two days between his protected activity and his termination are sufficiently close in time to suggest a causal connection between the protected activity and the adverse employment action. See Aff. of Melissa Romanino ¶ 23 (Sanderson was terminated on September 13, 2017); Zann Kwan, 737 F.3d at 845 (finding that a three-week period from a protected activity to termination was, standing alone, sufficient to satisfy the fourth element of a plaintiff’s prima facie retaliation claim).

Next, Defendants have satisfied their burden—at the second step of McDonnell Douglas—to “articulate some legitimate, non-retaliatory reason for the employment action.” Zann Kwan, 737 F.3d at 845. Specifically, Defendants allege that Sanderson was terminated not as retaliation for his complaint, but because he “was rude and disrespectful to his co-workers and violated [Leg Apparel’s] well-established workplace rules.” Defs’ Mem. at 13. There is evidence in the record sufficient to support this rationale for Sanderson’s finding. See, e.g., Aff. of Stuart Diamond ¶ 16 (attesting that Sanderson was fired because “there was overwhelming evidence that Sanderson violated [Leg Apparel’s] rules and policies by speaking to his co-workers in a demeaning and disrespectful way”); see also Reeves, 530 U.S. at 142 (noting that the employer’s burden at the second step of McDonnell Douglas is merely “one of production, not persuasion” that “involve[s] no credibility assessment” (internal citation omitted)). As a result, the burden is returned to Sanderson to “establish that the [Defendants’] reason is in fact pretext for unlawful discrimination.” Abrams, 764 F.3d at 251.

Sanderson has presented just enough evidence “to warrant a reasonable jury finding by a preponderance of the evidence that ‘the legitimate reasons offered by the defendant[s] were not [their] true reasons, but were a pretext for [retaliation].’ ” Fleming, 371 F. App’x at 117 (quoting Richardson, 532 F.3d at 125 n.11). First, the extremely short, two-day timeframe between Sanderson’s protected activity and his termination is probative evidence of pretext. Zann Kwan, 737 F.3d at 847 (noting that while “[t]emporal proximity alone is insufficient to defeat summary judgment at the pretext stage,” a plaintiff “may rely on evidence comprising [his] prima facie case,” including evidence of temporal proximity, “together with other evidence … to defeat summary judgment” (emphasis added)).

Second, Sanderson has pointed to an important weakness in Defendants’ purported non-discriminatory reason for discharge. See id. (“A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.” (emphasis added)). Specifically, it is undisputed that Borrelli deviated from Leg Apparel’s typical practices when conducting the investigation that led to Sanderson’s termination. In that investigation, Sanderson himself was never interviewed about the allegations against him (as opposed to about the allegations he made). See Aff. of Jennifer Borrelli ¶¶ 8–16. In other words, Sanderson was never given an opportunity to deny or otherwise explain the conduct he was accused of, including inappropriate comments to other team members, that ultimately led to his termination. Significantly, this was a deviation from his employer’s typical practice when a complaint is made, which is for management to “interview employee(s) named in [a] complaint” about that complaint. Id. ¶ 8. A jury could find support for Plaintiff’s claim in that unexplained deviation from Leg Apparel’s practices—namely, that they did not want to provide him the opportunity to explain himself, because they were intent on his termination.

Finally, Romanino reports that she had previously complained to human resources about comments that Sanderson had made, but that no action was taken at that time. See Aff. of Melissa Romanino ¶¶ 11–12, 15. To be sure, Leg Apparel has offered an explanation as to why Sanderson was terminated in September 2017 but not before: it says that it was only during the September 2017 investigation that the information about Sanderson’s misbehavior reached upper management, who then made the decision to fire him. Aff. of Stuart Diamond ¶ 16. But it is for a jury to evaluate both the credibility of this explanation and the other factual disagreements presented by the parties.

[Cleaned up.]

The court summarized by concluding that “a jury could reasonably view (a) the extremely short temporal gap between Sanderson’s protected activity and termination, together with (b) Leg Apparel’s decision not to interview Sanderson about the allegations against him, and (c) the fact that Sanderson had not been fired or disciplined for previous alleged problematic conduct, but was fired—after he complained about alleged discrimination—supposedly for similar conduct, as demonstrating that Leg Apparel’s rationale for terminating Sanderson was pretext, and that retaliation was the actual but-for cause of an adverse employment action,” warranting denial of defendants’ motion.

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