In Perez v. The City of New York, No. 111768/2011, 2023 WL 8035671 (N.Y. Sup Ct, New York County Nov. 20, 2023), the court, inter alia, denied defendant City of New York’s motion for summary judgment as to plaintiff’s retaliation claims asserted under the New York State and City Human Rights Laws.
From the decision:
There is no dispute that plaintiff engaged in protected activity by commencing this action on October 17, 2011. Rather, the City argues that plaintiff has failed to meet her prima facie burden insofar as there is no evidence that there was any adverse action against her after she commenced this lawsuit. The Court disagrees. While plaintiff’s testimony that she was yelled at and subjected to excessive and unwarranted scrutiny does not establish an adverse employment action under the NYSHRL (See Chin v New York City Hous. Auth., 106 AD3d 443, 444 [1st Dept 2013]), her testimony as to the two command disciplines she received and her resulting loss of vacation days, is sufficient to establish an adverse act2 (See Bayley v City of New York, 2010 NY Slip Op 30472[U] [Sup Ct, New York County 2010]).
The City fails to establish that there was no causal connection between her protected activity and these command disciplines. Although the three months between plaintiff’s commencement of this action and the command discipline in December 2011 is too attenuated to establish a causal connection in and of itself, “[t]he absence of temporal proximity will not defeat the claim, where, as here, there are other facts supporting causation” (Harrington v City of New York, 157 AD3d 582, 586 [1st Dept 2018]). Specifically, plaintiff’s testimony as to Lieutenant Fremont’s statements “F her, F her, F her, I’m changing her post, F her, she’s not getting relieved … You know, she got this going on with the lawsuit. Screw her. She’s not getting meals. She’s not getting relief,” considered in conjunction with the command disciplines, raises an issue of fact as to whether they were motivated by retaliatory animus (See Collins v Indart-Etienne, 59 Misc 3d 1026, 1054 [Sup Ct, Kings County 2018] [schoolteacher plaintiff’s allegations that school principal publicly stated that she wanted plaintiff “out” and four months later placed plaintiff in absent teacher reserve sufficiently stated claim for retaliation]).
To the extent the City also argues that the 2012 command discipline submitted by plaintiff in opposition to the instant motion establishes that a legitimate, nonretaliatory reasons for the challenged actions, plaintiff’s testimony as to Fremont’s express statement of retaliatory animus raises an issue of fact as to whether this discipline was pretextual. Finally, the City’s assertion that plaintiff admitted, at her deposition, to the conduct that formed the basis for the command disciplines is not supported by a review of the transcript. Accordingly, that branch of defendant’s motion to dismiss plaintiff’s retaliation claim under the NYSHRL must be denied. As the NYSHRL represents “a floor below which the City’s Human Rights law cannot fall” (Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009]) the City’s motion is also denied as to plaintiff’s NYCHRL claim.
The court did, however, grant defendant’s motion for summary judgment dismissing her gender discrimination claims.