In Newton v. LVMH Moet Hennessy Louis Vuitton Inc. et al, No. 23-CV-10753 (LAP), 2024 WL 3925757 (S.D.N.Y. Aug. 23, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Focusing only on allegations that occurred after July 23, 2022, the Court finds that Plaintiff has failed to state a claim for retaliation because she has failed to allege sufficiently that she engaged in protected activities of which Defendants were aware. Under Title VII, a plaintiff engages in protected activity only if she opposes any unlawful employment practice or “participate[s] in any manner in an investigation, proceeding, or hearing” undertaken in the course of EEOC proceedings. See Littlejohn, 795 F.3d at 316. Similarly, under the NYSHRL and NYCHRL, protected activities “include ‘action[s] taken to protest or oppose statutorily prohibited discrimination.’ ” Buchanan v. City of New York, 556 F. Supp. 3d 346, 365 (S.D.N.Y. 2021) (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)). Under each of the three statutes, “opposition” includes filing formal complaints as well as informal protests, complaints to management, and expressing support for co-workers who filed formal charges. See id. at 366 (NYSHRL and NYCHRL); Summa v. Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013) (Title VII).
Plaintiff has not alleged that she has participated in any formal EEOC proceeding or that any of the retaliatory conduct that occurred after July 25, 2022, resulted from any such participation. Thus, her claims could only survive dismissal if supported by plausible allegations that she opposed Defendants’ unlawful employment practices.
The primary activity that Plaintiff asserts triggered Defendants’ timely retaliatory acts is her refusal to meet with Pratt about a potential settlement of her legal claims against LVMH. (See Compl. ¶¶ 284-86.) However, Plaintiff has provided no authority indicating that such refusal constitutes protected activity. In fact, cases from other courts in the Second Circuit indicate the opposite. In Bottge v. Suburban Propane, the court held that a plaintiff’s “[r]efusal to sign a waiver of rights” of her discrimination claims, which waiver the defendants had demanded in negotiations following the plaintiff’s assertion of such claims, “can only constitute protected activity if that refusal represents an intent to complain about discriminatory employment practices.” 77 F. Supp. 2d 310, 312-13 (N.D.N.Y. 1999); see also Pleener v. New York City Bd. of Educ., 2007 WL 2907343, at *16 (E.D.N.Y. Oct. 4, 2007) (finding plaintiff’s refusal to sign similar waiver was not a protected activity because plaintiff made no indication it was out of protest to discriminatory activity). Because Plaintiff has provided no indication that her refusal to speak with Pratt about settlement represented her intent to complain further about Defendants’ unlawful discriminatory practices, the Court likewise concludes that it was not a protected activity.
The court further explained that “[t]o the extent Plaintiff asserts that the multiple statements she made on panels, at conferences, and on social media platforms in October and November 2022 constituted the protected activities necessary to support her claims, she has failed to allege plausibly that Defendants were actually aware of those activities.”