In Qorrolli v. Metropolitan Dental Associates, 2024 WL 5194887 (2d Cir. Dec. 23, 2024), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the lower court’s award of summary judgment to defendant on plaintiff’s claims of retaliation, on the ground that plaintiff did not engage in “protected activity.”
From the decision:
Finally, Qorrolli asserts that her verbal and non-verbal rejections of Orantes constitute protected activity. We agree with the district court’s conclusion that they do not. At her deposition, Qorrolli testified that she told Orantes “I really need you to get off my back. I need this to stop. I’m starting to feel very uncomfortable,” App’x 88, and to “back off and leave me alone because I can’t take this anymore,” id. at 94. She did not assert that her statements to Orantes were made directly following an attempt to sexually harass her. Qorrolli further testified that she rebuffed Orantes’ advances by using avoidance and silence, in one instance responding to a purported advance by “st[anding] there frozen” and not looking up when Orantes allegedly kissed Qorrolli on her cheek. Id. at 87. On another occasion, when Orantes purportedly inappropriately touched Qorrolli, she “looked at him and … just walked away.” Id. at 89.
Although this court has not yet ruled on whether rejecting a workplace harasser’s sexual advances can qualify as a protected activity under Title VII and the NYSHRL, an issue over which district courts have disagreed,3 we have ruled that such a rejection can constitute “an action opposing [plaintiff’s] employer’s discrimination” under the NYCHRL. See Mihalik, 715 F.3d at 112, 115, 116 n.12. However, since we find that Qorrolli’s purported rejections of Orantes’ advances were not sufficiently clear to communicate an opposition to sexual harassment, and therefore do not constitute protected activity, we need not address the broader questions of whether the verbal rejection of a sexual advance could constitute protected activity under Title VII or the NYSHRL, or whether a purely non-verbal rejection of a sexual advance could constitute protected activity under any of the three laws at issue here.
Qorrolli’s verbal complaints to Orantes were too generalized to constitute protected activity under the laws prohibiting employment discrimination. As Qorrolli herself admitted, she “never directly told [Orantes to] stop sexually harassing [her],” App’x 94, and her broad requests that Orantes “back off” could not reasonably have been understood as remonstrations regarding Orantes’ sexual advances as opposed to his abrasive but non-sexual workplace behavior, particularly given that Qorrolli does not allege that any such statements were made immediately after Orantes attempted to sexually harass her. And the silence, inaction, and avoidance described by Qorrolli when Orantes made sexual advances did not rise to a level of outwardly expressing opposition to her supervisor’s alleged discrimination or sexual harassment.
The court thus held that, “[i]n short, Qorrolli’s alleged verbal and non-verbal rejections of Orantes were insufficiently clear, as a matter of law, to constitute a protected activity.”