In Russell-Webster v. Gina Raimondo, Secretary of the United States Department of Commerce, Case No. CIV-22-1074-D, 2023 WL 8358562 (W.D.Okla. Dec. 1, 2023), the court, inter alia, held that plaintiff adequately stated a plausible retaliation claim under Title VII of the Civil Rights Act of 1964.
The court explained:
To state a prima facie case of retaliation, [a plaintiff] must show that: (1) she engaged in a protected activity; (2) [the employer] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.” Carney v. City of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008) (quoting Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 (10th Cir. 2006)). The first element is satisfied by showing the plaintiff “engaged in protected opposition to discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000). Protected conduct encompasses opposition based on a reasonable, good faith belief that the underlying conduct constituted prohibited discrimination. See Crumpacker v. Kansas Dep’t of Human Serv., 338 F.3d 1163, 1171 (10th Cir. 2003). To qualify as protected conduct, “the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [Title VII or ADEA].” Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008); see Peterson v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002).
Upon consideration, the Court finds that Plaintiff has provided minimally sufficient facts to state a plausible claim of retaliatory termination. Defendant’s primary contention is that Plaintiff has not identified any protected activity that predated the alleged retaliatory termination of her employment. “To show she engaged in protected activity, [Plaintiff] doesn’t need to show that she reported an actual Title VII violation; rather, she must only show ‘a reasonable good-faith belief that’ she was opposing discrimination.” Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 890 (10th Cir. 2018) (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir. 2004)).
Plaintiff alleges that on the same day as the conflict with Mr. Fawehinmi (August 1, 2019), she called her supervisor (Mr. Partin) to report the incident and to complain about Mr. Fawehinmi’s discriminatory conduct. Mr. Partin promised to “take action based on Plaintiff’s complaint of discrimination and hostile work environment,” even though his resignation was effective the next day. See Am. Compl. ¶ 10. Plaintiff alleges that she went to the office of Mr. Fawehinmi’s supervisor, Ms. Schnorrenberg, on August 2, 2019, and made an oral discrimination complaint against him in the context of a discussion about her future with the Census Bureau. Id. ¶¶ 12-13. Defendant contends these oral communications were not formal discrimination complaints. However, they could nevertheless constitute protected activity if Plaintiff “honestly and reasonably believed that she was reporting discrimination.”
For this reason, and because the factual allegations of the First Amended Complaint are sufficient to satisfy the second and third elements of a retaliatory discharge claim, the Court finds that Plaintiff has adequately stated a plausible retaliation claim.
Notably, the court reached this conclusion, despite having also held that plaintiff did not state a hostile work environment claim based on the alleged harassment she endured.