In Thompson v. Shutterstock, Inc. et al, 23-CV-4155 (JGLC), 2024 WL 2943813 (S.D.N.Y. June 10, 2024), the court, inter alia, denied defendant Shutterstock’s motion to dismiss plaintiff’s claim of retaliation asserted under 42 USC § 1981.
Here, plaintiff based his retaliation claim on comments alleged to have been made by Shutterstock’s chief HR officer (Garfield) regarding a presentation (“A Seat at the Table” (ASAT)) organized by plaintiff and others discussing the “racial climate” at Shutterstock. Those comments were defendant’s alleged reference to the panel as “angry,” “unproductive,” and an attempt to “embarrass” Shutterstock.
The court outlined and applied the applicable law as follows:
Retaliation claims under Title VII and Section 1981 are both analyzed pursuant to Title VII principles and the McDonnell Douglas burden–shifting framework. At the motion to dismiss stage, a plaintiff bringing a claim for retaliation must demonstrate “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.
With respect to the first prong, to demonstrate that he engaged in protected activity, Plaintiff need only allege that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated the law. With respect to the third prong, the concept of an adverse employment action is broader in the context of a retaliation claim than it is in the context of a discrimination claim. … In order to show an adverse employment action in the retaliation context, Plaintiff need only show that he suffered an employment action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Nonetheless, to establish an adverse employment action under Section 1981, Plaintiff must still demonstrate that he suffered more than “petty slights or trivial harms” and instead suffered an actual “injury or harm.”
With respect to the fourth prong, Plaintiff can demonstrate a connection between his protected activity and any adverse employment actions he suffered either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against [him] by [Shutterstock]. For the reasons discussed below, Plaintiff adequately pleads a retaliation claim based upon his participation in ASAT and Defendant Garfield’s response to ASAT.
Plaintiff alleges that Defendant Garfield’s response to ASAT was an act of retaliation. Plaintiff easily satisfies the first prong (protected activity) of a retaliation claim here. Plaintiff’s participation in ASAT was a protected activity because Plaintiff and his colleagues complained about racial discrimination during the presentation. …
Plaintiff also satisfies the second prong (defendant’s knowledge of protected activity). According to the Complaint, Shutterstock knew about the protected activity because senior leadership at the company discussed ASAT following the presentation.
Plaintiff satisfies the third prong (adverse action) as well. [D]iscriminatory harassment from a supervisor may alone suffice to establish an adverse employment action for the purposes of a retaliation claim. … Harassment that does not rise to the level of a hostile work environment in a Section 1981 discrimination claim – because it does not “alter the conditions of [a plaintiff’s] employment,” – may still qualify as an adverse action for the purposes of a Section 1981 retaliation claim so long as the harassment “could well dissuade a reasonable worker from making or supporting a charge of discrimination.
Here, for the reasons noted in the hostile work environment section, it is plausible that Defendant Garfield’s statement was not a neutral assessment of ShADEs members, but was instead a discriminatory assessment that invoked racist tropes that Black workers are angry and unproductive. And, while Plaintiff himself continued to engage in protected activity shortly after Defendant Garfield’s comments, many Black employees quit ShADEs in response to Defendant Garfield’s comments. FAC ¶¶ 63, 65. Given the racially coded nature of Defendant Garfield’s remarks, Defendant Garfield’s position of power within Shutterstock, and the impact Defendant Garfield’s remarks had upon ShADEs membership, it is plausible that Defendant Garfield’s comments, as part of Shutterstock’s negative response to ASAT, could (and, in fact, did) dissuade a reasonable employee from engaging in protected activity. This conclusion is further supported by Plaintiff’s allegations that members of “senior HR” stated that Plaintiff would have been fired if he had mentioned any members of Shutterstock leadership by name during ASAT. Id. ¶ 64.
Finally, Plaintiff satisfies the fourth prong (causal connection between the protected activity and the adverse employment action). Defendant Garfield’s comments, calling ShADEs members angry and unproductive, were specifically directed at Black employees’ engagement in protected activity (complaints of racial discrimination). Therefore, there is a causal connection between Defendant Garfield’s comments and Plaintiff’s protected activity.
[Citations and internal quotation marks omitted; cleaned up.]
It concluded that since plaintiff satisfies all four prongs of a retaliation claim based on ASAT and defendant’s ensuing comments, plaintiff’s retaliation claim against Shutterstock may proceed.