Title VII Retaliation Claim Dismissal Affirmed; Defendant Unaware of “Protected Activity”

In Stewart v. City of New York, 2023 WL 6970127 (2d Cir. Oct. 23, 2023), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the defendant’s motion for summary judgment on plaintiff’s claim of retaliation under Title VII of the Civil Rights Act of 1964.

Among other things, this decision underscores the importance of communicating the reasons for perceived discriminatory treatment.

From the decision:

To make out a prima facie case of unlawful retaliation under Title VII, a plaintiff must show: “(1) participation in a protected activity; (2) that [the employer] knew of [plaintiff’s] participation in that protected activity; (3) that [plaintiff] suffered an adverse employment action; and (4) that there exists a causal relationship between the protected activity and the adverse employment action.” Hicks, 593 F.3d at 166. To succeed on a retaliation claim after a defendant has established a legitimate, non-discriminatory reason for the adverse action, the plaintiff must present evidence that retaliation was the “but-for” cause of the action.

Stewart did not establish a prima facie case of retaliation because he did not offer evidence that the NYCTA was aware that he had participated in protected activity. Stewart’s email to his supervisors of August 4, 2017, which he claims caused them to reassign him to supervising cleaners and to transfer him to Livonia in retaliation, did not mention any category protected by Title VII (race, color, national origin, religion, or sex), much less complain of discrimination based on any of these categories. (The email did, however, contain an oblique reference to age discrimination, which is not covered by Title VII.) While informal complaints, such as an email to management, can constitute protected activity, see Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990), a plaintiff must show that his employer “understood, or could reasonably have understood, that the plaintiff’s complaint was directed at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011) (alteration omitted) (quoting Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)). The NYCTA and its agents would not have reasonably understood this complaint, which included general allegations that Mathai was incompetent and dishonest, was directed at conduct prohibited by Title VII.

Accordingly, the court concluded that “[b]ecause the August 4 email did not contain language that would have put NYCTA on notice that Stewart had participated in protected activity, Stewart did not establish a prima facie case of retaliation” and, therefore, the district court properly granted summary judgment to the defendant on this claim.

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