2nd Circuit Vacates Dismissal of Black FIT Employee’s Retaliatory Hostile Work Environment Claims

In Phillips v. Fashion Institute of Technology et al, No. 23-375-cv, 2024 WL 1005500 (2d Cir. March 8, 2024), the U.S. Court of Appeals for the Second Circuit, inter alia, vacated a lower court’s summary judgment on her retaliatory hostile work environment claims against an individual defendant who, according to plaintiff, threatened to “kill” her.

From the decision:

We conclude that the District Court erred in dismissing Phillips’s retaliatory hostile work environment claims against Barton arising from the May 2019 incident. To support a prima facie retaliatory hostile work environment claim against a coworker under Section 1981 and the NYSHRL, Phillips must show that “(1) she engaged in protected activity, (2) [Barton] was aware of that activity, (3) [Phillips] was subjected to a retaliatory action, or a series of retaliatory actions, that were materially adverse, and (4) there was a causal connection between the protected activity and the materially adverse action or actions.” Carr v. N.Y.C. Transit Auth., 76 F.4th 172, 180 (2d Cir. 2023); see Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 25 n.8 (2d Cir. 2014) (noting that federal and NYSHRL retaliation claims share the same standard); Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“[I]ndividuals may be held liable under §[ ] 1981 … for certain types of discriminatory acts, including those giving rise to a hostile work environment.”).

First, Phillips’s Affirmative Action complaint is protected activity because she had a “good faith, reasonable belief” that the racially insensitive comments about which she complained amounted to an unlawful employment practice, namely, a discriminatory hostile work environment. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 n.8 (2d Cir. 2010). Second, it is undisputed that Barton was aware that Phillips filed the Affirmative Action complaint. Third, the parties dispute whether Barton’s threats were “materially adverse,” that is, whether they “ ‘well might have dissuaded a reasonable worker from’ ” engaging in protected activity. Carr, 76 F.4th at 179–80 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).3 A single incident may constitute a hostile work environment, and thus a materially adverse action, if it is “extraordinarily severe.” Williams, 61 F.4th at 69; see also Banks v. Gen. Motors, LLC, 81 F.4th 242, 263–64 (2d Cir. 2023). Here, Phillips testified that Barton threatened to kill her, cursed repeatedly at her, and physically intimidated her. Indeed, Barton testified at her deposition that she repeatedly threatened “to kill” Phillips because saying it once “evidently … didn’t scare [Phillips] enough; because she kept talking and so [Barton] said it again.” App’x 491. A reasonable juror could find that this type of threatening behavior by a coworker with whom Phillips shared an office might well dissuade a reasonable employee from filing a complaint. Fourth, Phillips provided admissible evidence that Barton’s threats were motivated by retaliatory animus. During her interview with Human Resources, Barton acknowledged that Phillips’s disapproval was the “last straw” after Phillips had “complained about [Barton], it went up to Affirmative Action and there is still no resolution.” App’x 64. This is some evidence that Barton’s threats were motivated at least in part by her desire to retaliate against Phillips for filing the initial discrimination complaint. See Banks, 81 F.4th at 277.

As Phillips has established a prima facie claim for retaliatory hostile work environment, the burden shifts to Barton to provide a legitimate, non-retaliatory reason for her threatening Phillips. See Carr, 76 F.4th at 178. Barton provides no legitimate explanation for her behavior, but even if she had, Phillips has satisfied her burden at this stage to provide some evidence that “the desire to retaliate was the but-for cause of the challenged employment action.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (quotation marks omitted); see Banks, 81 F.4th at 275 (noting that there can be more than one “but-for cause” of an adverse employment action).

Under the NYCHRL, Phillips need only show that Barton’s threats against Phillips were “reasonably likely to deter” her from opposing discrimination in the workplace. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013). As she has met the standard for her federal and NYSHRL claims, she necessarily meets the standard for her claim under the NYCHRL. Accordingly, the District Court erred in granting Barton’s motion for summary judgment on Phillips’s retaliatory hostile work environment claims under federal, state, and local law.

The court further held, however, that the lower court properly dismissed plaintiff’s retaliatory hostile work environment claims against defendant Fashion Institute of Technology, since there was no evidence in the record that FIT knew, but did nothing, about Barton’s alleged harassment.

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