In Brunt-Piehler v. Absolute Software, Inc. et al, 6:16-CV-06313 EAW, 2024 WL 3765523 (W.D.N.Y. August 13, 2024), the court, inter alia, vacated a jury verdict in plaintiff’s favor on her retaliation claim under the New York State Human Rights Law.
This decision is instructive as to the “protected activity” element of a retaliation claim.
The court summarized the law as follows:
To establish a prima facie case of retaliation, Plaintiff must show: “(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citation omitted). Retaliation claims are subject to a but-for causation test. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).13
“An employee engages in a protected activity when she complains of an employment practice that she reasonably believes violates the law.” Mayers v. Emigrant Bancorp, Inc., 796 F. Supp. 2d 434, 448 (S.D.N.Y. 2011). “Mere complaints of unfair treatment … are not protected speech in the employment retaliation context, and the onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally.” Benzinger v. Lukoil Pan Ams., LLC, 447 F. Supp. 3d 99, 124 (S.D.N.Y. 2020) (citation and quotations omitted)). “Although particular words such as ‘discrimination’ are not required to put an employer on notice of a protected complaint,” see Guzman v. Crothall Healthcare, Inc., No. 17-CV-4306-CBA(PK), 2021 WL 5048993, at *16 (E.D.N.Y. Sept. 29, 2021), the employer must have understood or could have reasonably understood that a plaintiff was complaining about discrimination based on the protected characteristic—in this case, gender discrimination. See Kelly, 716 F.3d at 15 (“As to the second element [of the prima facie case], implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by Title VII.” (quoting Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)); see also Rodas v. Town of Farmington, 918 F. Supp. 2d 183, 189 (W.D.N.Y. 2013) (“Although a plaintiff need not explicitly allege a violation of Title VII in making a complaint about working conditions to be considered protected activity, the plaintiff must complain of discrimination in sufficiently specific terms to put the employer on notice that the plaintiff believes he or she is being discriminated against on the basis of race, gender, national origin, or any other characteristic….” (internal citation omitted))
In this case, the court held that there was no evidence that (1) plaintiff complained of treatment based on her gender, or (2) defendants understood or could have reasonably understood that Plaintiff complained about gender discrimination.
It noted, among other things, that plaintiff did not identify gender discrimination as the basis for why she believed she was being treated unfairly, and that while plaintiff comlained about her treatment, “general complaints—in other words, those motivated by nonprotected characteristics—cannot sustain a claim for retaliation.”