Title VII Retaliation Claims Survive Summary Judgement; Adverse Actions, Following Complaints of Discrimination, Included Failure to Investigate OEO Complaints

In Arkorful v. New York City Department of Education, 18-cv-3455 (NG) (ST), 2024 WL 298999 (E.D.N.Y. Jan. 24, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of retaliation under Title VII of the Civil Rights Act of 1964.

The court summarized the black-letter as follows:

On a motion for summary judgment, retaliation claims under each statute are evaluated under the McDonnell-Douglas burden-shifting framework. To make out a prima facie case of retaliation under either requires plaintiff to demonstrate (1) that he engaged in protected activity under the relevant statute; (2) that DOE as employer was aware of the activity; (3) that he suffered a materially adverse action; and (4) that there is a causal connection between the protected activity and the alleged adverse action. See, e.g., Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (Title VII); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA). To meet the third prong, he must show that “a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). With respect to the fourth prong, although retaliation must be a “but-for” cause of the employer’s adverse action, Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015), it need not be the only but-for cause. Bostock v. Clayton County, Georgia, 590 U.S. —, 140 S. Ct. 1731, 1739 (2020) (“When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the [protected characteristic] was one but-for cause of that decision, that is enough to trigger the law.”). “[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.”

Plaintiff based their claim on an internal complaint to management and two formal complaints.

As to plaintiff’s initial complaint to the CTO, the court explained:

Mr. Arkorful has adduced evidence that he engaged in protected activity when he met on March 17, 2016, with Mr. Kambouras about being stripped of his Team Lead position. For Title VII retaliation claims, protected activity can include “informal protests of discriminatory employment practices, including making complaints to management” provided that they are “sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII.” Risco v. McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012). Mr. Arkorful complained that, because he was Black and from Ghana, he was being treated differently from coworkers. Such allegations are “[p]lainly” challenging employment practices that, if proven, were unlawful under Title VII. Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 210 (2d Cir. 2006). As such, a reasonable jury could conclude this was protected activity. Mr. Kambouras was part of the meeting, so knew it was taking place.

According to Mr. Arkorful, five days after this meeting, Ms. Anaya directed his supervisor, Mr. Davis, to begin marking him late in a manner different from how his attendance had previously been tracked. (Prior to this direction, he had been entitled to have lateness resulting from transit delays deducted from annual leave, which was not a mark against his performance.) Mr. Arkorful was instructed that, following this direction, such lateness would result in him being marked as late in DOE’s attendance system, which could contribute to a negative record. Mr. Arkorful contends that this change was different from how others were treated. See Davis Dep. at 25:22–24 (Mr. Davis testified that Mr. Arkorful was not the only one who took annual leave against lateness). This change could be found sufficient to dissuade a reasonable worker from making a charge of discrimination. Moreover, the new directive came only five days after his discrimination complaint, demonstrating a close temporal relationship between the protected activity and adverse action.

DOE contends that the new direction was made pursuant to DOE policy. However, if credited by a jury, Mr. Davis’s testimony that he was specifically told to monitor Mr. Arkorful’s attendance but refused to do so because he thought it was a “tactic” to create a negative record that “could probably be used to either get him fired or prevent him from being promoted” supports the conclusion that any legitimate basis offered by DOE is pretextual. Davis Dep. at 26:2–18. Summary judgment is denied on this claim.

As to plaintiff’s subsequent OEO complaint, the court explained:

Mr. Arkorful met with an OEO investigator following his filing of an OEO Complaint, which was dated June 24, 2016. According to Mr. Arkorful’s testimony, the investigator met with him for five minutes or less, did not help at all, and threatened to tell Mr. Arkorful’s manager that he was saying the manager was a racist. See Arkorful Dep. at 163:1-25–164:1-12. There is no dispute that filing an OEO Complaint is a protected activity, nor that the employer was aware of the activity. A threat to inform someone’s manager that his employee is saying negative things about him, could easily “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Finally, this statement was made less than five minutes into an OEO meeting about Mr. Arkorful’s discrimination complaint, so there is temporal proximity and no reasonable dispute as to the cause of the threat. Mr. Arkorful has therefore established a prima facie case, and DOE has offered no legitimate, non-discriminatory reason for the adverse action. Summary judgment is denied on this claim.

Finally, the court held that plaintiff’s retaliation claim, based on defendant’s failure to investigate his 2019 OEO complaints following his December 2016 EEOC complaint and the filing of this lawsuit, survived dismissal:

Failure to investigate a complaint can constitute an adverse employment action for purposes of a retaliation claim if the complaint is distinct from another separate, protected activity. See Delisi v. Nat’l Ass’n. of Professional Women, Inc., 48 F. Supp. 3d 492, 497 (E.D.N.Y. 2014). That is the case here.

Mr. Arkorful has proffered evidence that, in response to his January 2019 OEO complaint, OEO informed him that “[t]here is a case against DOE that you filed with EEOC and therefore we cannot pursue an internal investigation at the OEO. Unfortunately the Office of Equal Opportunity is not able to investigate any complaints that are filed at external agencies.” OEO closed his March 2019 Complaint because it “closed [his] prior complaints (which match this one) because similar acts of retaliation were alleged in the lawsuit and OEO will close the instant case as a duplicate,” even though the 2019 OEO Complaints contained allegations of subsequent discriminatory conduct that took place after the filing of the EEOC complaint and the filing of this lawsuit.

DOE does not offer a legitimate, non-discriminatory reason for the decision not to investigate the complaints or explain the purported OEO policy cited in the email. It argues only that Mr. Arkorful did not provide evidence that retaliation was the but-for cause of this act. However, the correspondence from OEO itself directly connects its decision to close and not pursue these complaints to the existence of an EEOC complaint. In sum, a reasonable jury could find that the failure to investigate the 2019 OEO complaints was in retaliation for his filing of the EEOC complaint and this lawsuit.

Accordingly, the court denied defendant’s motion on plaintiff’s Title VII retaliation claims.

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