In Clermont v. OTG Concessions Management LLC, 24-cv-6590 (BMC), 2025 WL 2664022 (E.D.N.Y. Sept. 17, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of retaliation asserted under 42 U.S.C. § 1981.
From the decision:
To state a claim for retaliation under Section 1981, a plaintiff must plead: “(i) she engaged in protected activity; (ii) the defendant was aware of that activity; (iii) plaintiff suffered an adverse employment action; and (iv) there was a causal connection between the protected activity and that adverse action.” Moy v. Napoli Shkolnik, PLLC, No. 23-cv-3788, 2024 WL 3498131, at *11 (S.D.N.Y. July 22, 2024) (cleaned up). Just as with a discrimination claim, the causal connection required for a retaliation claim is that “the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Banks, 81 F.4th at 275 (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)). And, here too, “there can be more than one ‘but-for’ cause of an adverse employment action.” Id. (citing Bostock, 590 U.S. at 656). But-for causation “may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity[, except that] temporal proximity between a protected activity and an adverse employment action is insufficient to survive a motion to dismiss where the alleged causal connection between the two events is ‘highly speculative.’ ” Moy, 2024 WL 3498131, at *12 (internal quotation marks and quotations omitted).
Plaintiff alleges that she complained to two supervisors about Keshana’s discriminatory remarks, which is a protected activity. See Moore v. Hadestown Broadway LLC, 722 F. Supp. 3d 229, 246 (S.D.N.Y. 2024) (“Complaining to a supervisor, instituting litigation, or filing a formal complaint about the defendant’s discriminatory conduct are each considered protected activities.” (citation omitted)). Moreover, plaintiff’s complaints “about Keshana’s racist and insulting comments” put defendant “on notice that plaintiff’s complaints were about discrimination, not just general unsatisfactory or unfair conduct,” satisfying the second requirement to state a claim for retaliation. Id. (cleaned up). Nor do the parties dispute that the third requirement is met, of an adverse employment action: plaintiff was terminated.
Considering whether plaintiff has plausibly alleged the last requirement, that but for the retaliation, plaintiff would not have been fired, plaintiff alleges that, less than one month from when plaintiff first complained about Keshana’s racist comments to supervisors, and four days after the last time she complained about Keshana’s racist comments, she was terminated. “Plaintiff’s allegation that her termination occurred within days after her complaints of discrimination is sufficient to plausibly support an indirect inference of causation.” Id. at 256 (quoting Littlejohn v. City of N.Y., 795 F.3d 297, 319-20 (2d Cir. 2015)) (cleaned up). “Such a short period of time between protected activity and adverse employment action is comfortably within the range of time sufficient to support an indirect causal nexus.” Id. (citing Vega, 801 F.3d at 90-92; Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)).
The court concluded that there was nothing speculative about the causal connection between plaintiff’s complaints to her supervisors and her termination, and that “accepting plaintiff’s factual, nonconclusory allegations as true, plaintiff complained about Keshana’s discrimination, the supervisors told plaintiff to calm down and brushed her off, and then they fired her when she continued to complain.”
For these reasons, the court held that plaintiff adequately pled a claim for retaliation under Section 1981.