In Goldberg v. Bespoke Real Estate LLC, et al, 23-CV-5614 (JPO), 2024 WL 1256006 (S.D.N.Y. March 25, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of retaliation asserted under 42 U.S.C. § 1981.
From the decision:
The Goldberg Plaintiffs also assert a claim of unlawful retaliation under Section 1981 based on Goldberg’s opposition to the Bespoke Entities’ treatment of Willis and the subsequent termination of Goldberg. “To establish a prima facie case of retaliation under § 1981, a plaintiff must show that (1) he was engaged in a protected activity, (2) the employer was aware of his participation in the protected activity, (3) the employer took an adverse action against him, and (4) a causal connection existed between the protected activity and the adverse action.” Cook v. CBS, Inc., 47 F. App’x 594, 596 (2d Cir. 2002) (summary order).
The Court rejects Defendants’ argument that the Goldberg Plaintiffs have not stated a claim for retaliation because they do not allege that Goldberg directly informed the Bespoke Entities about his protected activity. While the Goldberg Plaintiffs need to plead that Goldberg was engaged in a protected activity and that the employer was aware of that activity, nothing in the statute or the case law imposes an additional requirement that the employer be made aware of that activity directly by the employee himself. “[A]n individual who has opposed discrimination prohibited by the statute” has engaged in protected activity, Johnson v. J Walter Thompson U.S.A., LLC, 224 F. Supp. 3d 296, 313 (S.D.N.Y. 2016) (internal quotation marks and citation omitted), and such protected activity can include not only “making complaints to management” but also activities like “writing critical letters to customers” or “expressing support of co-workers who have filed formal charges,” Littlejohn, 795 F.3d at 317. Thus, activity such as “having [one’s] lawyer send Defendants a letter alleging discrimination and filing [a] lawsuit” constitutes protected activity, even if the plaintiff does not personally inform Defendants about the unlawful nature of their conduct. Johnson, 224 F. Supp. 3d at 313.
The Goldberg Plaintiffs sufficiently allege protected activity. They allege that in August 2022, Goldberg told his counsel that the Bespoke Entities had unlawfully discriminated against Willis on the basis of his race, and that Goldberg’s counsel in turn informed Defendants, through their counsel, about that accusation. (SAC ¶¶ 269-70.) That conduct represents actions taken by the Goldberg Plaintiffs in opposition to practices by the Bespoke Entities that they understood to constitute unlawful discrimination. Moreover, even if that particular instance somehow does not constitute protected activity, Plaintiffs allege that Goldberg informed management that Hasson’s attempt to steal Willis’s clients constituted discrimination. (Id. ¶ 255). Goldberg’s actions appear to have been “sufficient to put the Defendants on notice that [he] felt the conduct was discriminatory.” Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 227 (E.D.N.Y. 2018). As a result, “[a]t this early stage, the Court cannot conclude that these were generalized complaints that the Defendants ‘could not reasonably have understood that [he] was complaining of conduct prohibited by [§ 1981].’ ” Id. (quoting Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)).
Defendants briefly contend that because Goldberg supervised Willis, Goldberg himself is also responsible for any allegedly discriminatory treatment of Willis. (ECF No. 15 at 34.) Even if that were the case (despite Plaintiffs’ allegations that Goldberg protested Willis’s treatment), Defendants fail to explain why that requires dismissal of Goldberg’s retaliation claim, as it does not preclude the possibility that Defendants also unlawfully retaliated against Goldberg. Defendants’ remaining argument—that Goldberg could not possibly have believed that unlawful discrimination was occurring against Willis—again improperly relies on extrinsic evidence.
On this basis, the court denied defendants’ motion to dismiss the Section 1981 retaliation claim.