In Chin v. New York City Department of Corrections and The City of New York, 23-CV-5268 (AMD) (JAM), 2024 WL 2258033 (E.D.N.Y. May 17, 2024), the court denied defendants’ motion to dismiss plaintiff’s retaliation claims, asserted under Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law, against the City of New York.
Defendants did not dispute that the plaintiff plausibly alleged that he participated in a protected activity and that they knew about it. Rather, they argue that some of the alleged employment actions are insufficiently adverse, and that there is no evidence of causation.
As to the adverse action element, the court explained:
The incidents about which the plaintiff complains, considered separately, are not actionable. Warden Lemon’s “attempt[ ] to remove” the plaintiff “from his secret service detail” is not an adverse employment action because the plaintiff does not allege that the Warden actually removed him from the detail. (ECF No. 1 ¶ 37.) See, e.g., Taylor v. N.Y.C. Dep’t of Educ., No. 11-CV-3582, 2012 U.S. Dist. LEXIS 170917, at *33 (E.D.N.Y. Nov. 30, 2012) (courts in the Second Circuit “have generally declined to find that threats to demote [a] plaintiff or take disciplinary action constitute … adverse employment action[s]” for purposes of a retaliation claim). Requiring the plaintiff to write “a report detailing who had authorized him to approve” a coworker’s vacation days “even though this was the typical process in the office” (ECF No. 1 ¶ 30) is a “mere inconvenience,” Anand v. N.Y. State Dep’t of Taxation & Fin., No. 10-CV-5142, 2013 U.S. Dist. LEXIS 104424, at *14 (E.D.N.Y. May 28, 2013) (“[E]xcessive scrutiny do[es] not constitute adverse action[ ] in a Title VII retaliation context.” (citations omitted)); Deshpande v. Medisys Health Network, No. 07-CV-375, 2010 U.S. Dist. LEXIS 37891, at *14 (E.D.N.Y. Apr. 16, 2010) (“[C]lose monitoring, without more, is insufficient to constitute a materially adverse action [for a retaliation claim] under Title VII.”). Finally, recategorizing the plaintiff’s vacation days as “time due” or “emergency personal days” is not sufficiently adverse or reasonably likely to deter him from engaging in protected activity, particularly because he was still allowed to take those days off from work.
However, considering this conduct in the aggregate along with the overtime restrictions — which the defendants do not challenge as insufficiently adverse — the plaintiff has plausibly alleged materially adverse employment actions sufficient to state Title VII and NYCHRL retaliation claims. See, e.g., Timothy v. Our Lady of Mercy Med. Ctr., No. 03-CV-3556, 2004 U.S. Dist. LEXIS 3970, at *19 (S.D.N.Y. Mar. 12, 2004) (“Even if none of the actions that a plaintiff alleges could individually be characterized as adverse, a series of actions taken against a plaintiff may, in the aggregate, constitute such conduct.”); Muniz v. City of New York, No. 20-CV-9223, 2023 U.S. Dist. LEXIS 172413, at *26 (S.D.N.Y. Sept. 23, 2023) (acknowledging that “[t]he Second Circuit has allowed this sort of aggregation in the retaliation context” (citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002))). In evaluating whether these actions are material, “ ‘[c]ontext matters,’ as some actions may take on more or less significance depending on the context.” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 225 (E.D.N.Y. 2014) (quoting Tepperwien v. Entergy Nuclear Ops., Inc., 663 F.3d 556, 568 (2d Cir. 2011)); see also, e.g., Milien v. City of New York – Dep’t of Educ., No. 20-CV-480, 2023 U.S. Dist. LEXIS 164771, at *54–55 (E.D.N.Y. Sept. 15, 2023).
Here, the alleged incidents are not isolated or one-off occurrences. Moreover, the defendants took the challenged actions within a month or two of the actions that they admit were adverse — restricting the plaintiff’s overtime hours. This proximity suggests that the additional challenged actions were “part of a larger course of conduct,” occurring over the course of six months. Tepperwien, 663 F.3d at 568; see also Fowler v. N.Y.C. Transit Auth., No. 96-CV-6796, 2001 U.S. Dist. LEXIS 762, at *21 (S.D.N.Y. Jan. 31, 2001) (“The accumulation of small reprisals may be aggregated so as to permit consideration of their impact in their totality.” (citation omitted)). Accordingly, even though some of the defendants’ actions, considered individually, “might reasonably be tolerated” by a reasonable employee in the plaintiff’s position, “the allegation of their combination, alleged to have been imposed only on [him]” and within a short time period, “suffices to survive a motion to dismiss.” Massaro v. Dep’t of Educ., 774 F. App’x 18, 22 (2d Cir. 2019) (summary order); see also Freckleton v. Ambulnz NY LLC, No. 21-CV-4615, 2022 U.S. Dist. LEXIS 180014, at *19 (E.D.N.Y. Sept. 30, 2002) (“[I]t is appropriate to take a ‘generous view of retaliatory acts at the motion to dismiss stage.’ ” (quoting Ingrassia, 130 F. Supp. 3d at 723–24)).
As to the element of causation, the court held that “[t]he sequence of events alleged in the complaint provide a sufficient basis to infer causation at this stage of the proceedings.” Specifically, plaintiff alleged that the defendants retaliated against plaintiff approximately two months after the EEOC found that plaintiff’s complaint had merit – particularly where defendants already restricted plaintiff’s overtime twice, within a month after filed his “official charge of discrimination and retaliation.”