In Espinoza v. CGJC Holdings LLC d/b/a Joe and Pat’s Pizzeria and Restaurant et al, 23cv9133 (DLC), 2024 WL 3520662 (S.D.N.Y. July 23, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s retaliation claims asserted under Title VII of the Civil Rights Act of 1964, and the New York State and City Human Rights Laws.
From the decision:
In her retaliation claims, Espinoza principally alleges that that the defendants terminated her employment in retaliation for her complaints to Piscopo and Casey in her October 22 text that she was sexually harassed by the bartender, in violation of Title VII, the NYSHRL, and the NYCHRL.7 Defendants argue Espinoza has not sufficiently alleged that she engaged in a protected activity or that there was a causal connection between any protected activity and the termination of her employment. They are incorrect.
Retaliation claims brought under the NYSHRL are subject to the same standards as retaliation claims under Title VII, which “prohibits an employer from discriminating against an employee because the employee has engaged in protected activity.” Banks v. General Motors, LLC, 81 F.4th 242, 275 (2d Cir. 2023).8 To establish a prima facie claim for retaliation, a plaintiff must show that (1) she engaged in protected activity, (2) the defendant was aware of that activity, (3) she 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. New York City Transit Authority, 76 F.4th 172, 180 (2d Cir. 2023).Protected activity includes “opposing an unlawful employment practice” or otherwise “making a charge” in any manner “in an investigation, proceeding, or hearing.” Banks, 81 F.4th at 275 (citing Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). “[A]ny activity designed to resist or antagonize; to contend against; to confront; resist; or withstand discrimination” constitutes a “protected oppositional activity.” Littlejohn, 795 F.3d at 317 (citing Crawford v. Metropolitan Gov’t, 555 U.S. 271, 276 (2009)). “[W]hen an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to that activity.” Id. (citation omitted). Under the NYCHRL, “opposing any practice” can “include situations where a person, before the retaliatory conduct occurred, merely made clear her disapproval of the defendant’s discrimination by communicating to him, in substance, that she thought his treatment of the victim was wrong.” Mihalik, 715 F.3d at 112 (citation omitted).
To show a causal connection, a plaintiff must plead facts supporting an inference that the protected activity was a but-for cause of the adverse action. See Banks, 81 F.4th at 275. There can be more than one “but-for” cause of an adverse action; the but-for test is a “sweeping standard” and “[o]ften, events have multiple but-for causes.” Bostock, 590 U.S. at 656. Causation may be shown “either through direct evidence of retaliatory animus or indirectly, by showing that the protected activity was followed closely by discriminatory treatment.” Sharikov, 103 F.4th at 170 (citation omitted).
The FAC adequately pleads that Espinoza engaged in protected activity when she complained in her text to two of the owners that the bartender had sexually harassed her. It has also adequately pleaded a sufficient causal connection between that complaint and the termination of her employment. She was fired shortly after she made her complaint.
Defendants argue that the FAC instead shows that Espinoza’s employment was terminated because of her Instagram post. As the Supreme Court noted in Bostock, however, a defendant “cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s [protected activity] was one but-for cause of that decision, that is enough to trigger the law.” 590 U.S. at 656 (citation omitted).
Having said all this, the court concluded that “[d]etermining whether Espinoza was terminated at least in part due to her complaints to Casey and Piscopo is a fact-bound question inappropriate for resolution on a motion to dismiss”, and therefore denied defendants’ motion as to plaintiff’s retaliation claims, insofar as they are based on gender-based protected activity.