Retaliation Claims, Arising From “Heightened Scrutiny” Following Complaints of Race Discrimination, Survive Summary Judgment

In Stanley v. Mount Sinai Health System, Inc. et al, 2023 WL 8355393 (S.D.N.Y. Dec. 1, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s retaliation claims arising from her complaints about race-based comments allegedly made by plaintiff’s supervisor. (The court granted defendants’ motion for summary judgment as to her hostile work environment claims.)

From the decision:

The only basis for concluding that Defendant retaliated against Plaintiff is her claim that, “after Plaintiff’s complaints,” [plaintiff’s supervisor] Guareno began to shadow Plaintiff on “virtually every shift,” even though Guareno’s standard practice was to shadow employees under her supervision once or twice a quarter. Heightened scrutiny by an employer can qualify as an adverse employment action. See Drees v. Cnty. of Suffolk, No. 06-CV-3298, 2009 WL 875530, at *8 (E.D.N.Y. Mar. 30, 2009) (finding “excess scrutiny of [Plaintiff’s] work,” along with the denials of Plaintiff’s requests to be retrained sufficient to survive summary judgment).

Although Plaintiff’s evidence is vague regarding when the alleged “overbearing oversight” began, she testified that the incident in which Guareno accused her of pushing a medication too quickly—an incident that occurred while being shadowed by Guareno—occurred in “early 2021 or maybe late 2020.” A causal connection “may be established through evidence of retaliatory animus directed against a plaintiff by the defendant, or by showing that the protected activity was closely followed in time by the adverse action.” Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010) (internal quotation marks and citations omitted). There is no “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a [protected activity] and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). Instead, the Court must “exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (noting that the passage of “only six months” was sufficient to support a causal connection); Summa, 708 F.3d at 128 (finding a seven-month gap between plaintiff’s filing of a lawsuit and the decision to terminate her employment not to be “prohibitively remote” and “within the temporal range that we have found sufficient to raise an inference of causation”); Kopchik v. Town of East Fishkill, 759 F. App’x 31, 35 (2d Cir. 2018) (finding a nine month gap between the defendant learning of plaintiff’s EEOC charge and its efforts to terminate him was not too long to support a causal inference). Although Plaintiff notes only that Guareno’s excessive oversight began “[a]fter Plaintiff’s complaints,” her lack of specificity does not necessarily doom her retaliation claim. 56.1 Counter ¶ 132. A plaintiff bears the “de minimis” burden of establishing a prima facie case of retaliation. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013).

Plaintiff lodged her second complaint against Guareno in May 2020, 56.1 Stmt. ¶ 22, and Guareno discussed the substance of that complaint with Labor Relations on June 22, 2020. Plaintiff testified that the incident in which Guareno accused Plaintiff of pushing a medication too quickly occurred in “early 2021 or maybe late 2020.” Pl. Tr. at 136–38. Construing the evidence in the light most favorable to Plaintiff, this incident could have occurred as early as November 2020; that would have been just five months after Guareno learned of Plaintiff’s complaint from Labor Relations, well within the time frame that could support a finding of a causal connection. A reasonable jury could find that Guareno’s alleged heightened scrutiny of Plaintiff’s work is the type of behavior that “might dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Fincher, 604 F.3d at 721 (citation omitted).

Because Plaintiff has met her initial burden of showing a protected activity that was followed by an action that was materially adverse and that the timing of the materially adverse action raises the inference that it was caused by the protected activity, Plaintiff has satisfied her prima facie case. The burden then shifts to Defendants to offer “a legitimate, non-discriminatory reason for the adverse employment action.” Defendants dispute that Guareno engaged in excessive supervision; Guareno testified that she shadowed Plaintiff once or twice each quarter, the same as for any other staff member.

Because the extent of supervision by Guareno is disputed and the Court must construe all facts in favor of the non-moving party, the Court cannot conclude on summary judgment that Defendants have rebutted Plaintiff’s prima facie case of retaliation. Consequently, Defendants motion for summary judgment on Plaintiff’s retaliation claims under Title VII, Section 1981, and the NYSHRL is denied.

[Cleaned up.]

The court further held that since plaintiff raised triable issues of fact as to her retaliation claims under federal law, she necessarily did so under the New York City Human Rights Law, which imposes a more lenient standard.

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