In Bethea, Diamin v. Winfield Security Corporation, 23 Civ. 922 (AT), 2023 WL 8650004 (S.D.N.Y. Dec. 14, 2023), the court, inter alia, denied defendant’s motion for judgment on the pleadings (under Federal Rule of Civil Procedure 12(c)) on plaintiff’s retaliation claims asserted 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.
In sum, plaintiff alleges that defendant retaliated against her by taking her off the schedule for two days after she requested accommodations for her pregnancy. Initially, the court granted defendant’s motion as to plaintiff’s discrimination claims. It reached a different conclusion, however, as to plaintiff’s retaliation claims.
As to plaintiff’s federal and state law claims, the court explained:
To establish a prima facie case of retaliation, a plaintiff must allege: that “(1) she engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) a causal connection existed between the protected activity and the adverse action.” McCormick v. Donovan, 365 F. App’x 247, 249 (2d Cir. 2010).4 At the pleading stage, “the burden for establishing a prima facie case of retaliation is ‘de minimis.’ ” Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)).
First, Bethea has plausibly alleged that she participated in a protected activity. A pregnant employee’s request for a reasonable accommodation can constitute a protected activity. See Gratton v. Jetblue Airways, No. 04 Civ. 7561, 2005 WL 1251786, at *10 (S.D.N.Y. May 25, 2005). Bethea alleges that, as an accommodation for her pregnancy-related medical appointments, she “asked both her supervisor[ ] and the company dispatch” to schedule her days off consecutively. Compl. ¶¶ 17–18. The Court finds that this request is “plausibly [pleaded] to have been a request to accommodate conditions caused by her pregnancy.” Farmer, 473 F. Supp. 3d at 332. Further, Bethea’s allegation that she asked a Winfield supervisor and dispatcher for the accommodation sufficiently alleges “general corporate knowledge,” fulfilling the second prong. Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007); see Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 270 (S.D.N.Y. 2007) (complaints to supervisor “clearly satisfy” the knowledge requirement).
For the third prong, “in the context of a Title VII retaliation claim, an adverse employment action is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). This definition “covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII,” which only proscribes discriminatory actions that “affect the terms and conditions of employment.” Vega, 801 F.3d at 90 (citing Burlington, 548 U.S. at 64). “Although ‘petty slights or minor annoyances’ are not actionable, the Supreme Court has emphasized that ‘[c]ontext matters.’ ” Smith v. N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 341 (S.D.N.Y. 2020) (quoting Hicks, 593 F.3d at 165)). “[S]omething might be a ‘petty slight’ to one person but ‘matter enormously’ to another, such that it could ‘deter a reasonable employee from complaining about discrimination.’ ” Massaro v. Bd. of Educ. of City Sch. Dist. of N.Y., 774 F. App’x 18, 22 (2d Cir. 2019) (quoting Vega, 801 F.3d at 90).
Here, Bethea alleges that “within approximately 24–32 hours” of her accommodation request, the dispatcher deleted Bethea’s work schedule, causing her to lose “a day off and a workday as ‘off the schedule.’ ” Id. ¶ 21. Although Bethea’s account of the incident is “far from maximally pellucid,” Farmer, 473 F. Supp. 3d at 332, at this stage, the Court must construe the allegation in the light most favorable to her and infer that the dispatcher’s action caused Bethea to lose at least one day of pay. Courts in this Circuit have held that forcing a plaintiff to forego one day’s worth of wages constitutes an adverse action. See Satterfield v. United Parcel Serv., Inc., No. 00 Civ. 7190, 2003 WL 22251314, at *10, *12 (S.D.N.Y. Sept. 30, 2003); see also Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (suspension without pay for one week, even if plaintiff was later reimbursed, constitutes an adverse action); Moore v. Conn. Dep’t of Corr., No. 19 Civ. 1063, 2021 WL 4391244, at *6 (D. Conn. Sept. 24, 2021) (one-day suspension constitutes adverse action). The Court similarly finds that Bethea’s removal from the schedule rises above the level of a “petty slight[ ] or minor annoyance[ ].” Smith, 440 F. Supp. 3d at 341. And although Bethea admits that she was “restored to the schedule a day later,” Compl. ¶ 21, the Court cannot find that “the short duration” of the removal means that “no adverse employment action occurred.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).
On the fourth prong of causation, Bethea plausibly pleads a causal connection between her accommodation request and her removal from the schedule based on their close temporal proximity—within two days. Vega, 801 F.3d at 90; see, e.g., Feliciano v. City of New York, No. 14 Civ. 6751, 2015 WL 4393163, at *10 (S.D.N.Y. July 15, 2015) (collecting cases requiring adverse action to occur within approximately two months of plaintiff’s protected activity).
In all, Bethea plausibly pleads a claim for retaliation under Title VII and the NYSHRL, and Winfield’s motion for judgment on these claims is DENIED. “Discovery will test what the basis in fact was for” Bethea’s removal from the schedule.
Having determined that plaintiff plausibly pleaded claims under Title VII and the NYSHRL, the court held that she also pleaded a retaliation claim under the “more permissive” New York City Human Rights Law.