In Walker v. CSL Plasma, Inc., No. 6:22-CV-6413-CJS-CDH, 2026 WL 1596200 (W.D.N.Y. June 4, 2026), the court granted defendants’ motion for summary judgment on plaintiff’s claim of retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law.
This case is instructive as to what constitutes “protected activity” in the context of such a claim. From the decision:
[I]t is clear that complaints that merely reference unprofessional conduct and/or unfair treatment without reference to a protected characteristic are not protected activity.
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In opposition to Defendant’s motion, Plaintiff submits an affidavit in which he merely states on this point, “I complained about Thixton’s racism to Harp, his superior.” ECF No. 55-9 at ¶ 30 (emphasis added).83 However, as discussed earlier, the party opposing summary judgment may not create a triable issue of fact “merely by submitting an affidavit that disputes his own prior sworn testimony,” Rule v. Brine, Inc., 85 F.3d at 1011, and, as set forth above, Plaintiff clearly testified at deposition that he never used the word “racism” during his conversation with Harp. See, Pl. Dep. at 150 (“I never used the word racism, either. I just kind of spoke to the behaviors and the experiences that I had experienced.”). Consequently, Plaintiff’s bald, conclusory, and contradictory assertion on this point does not create a triable issue of fact as to whether he engaged in protected activity.
Turning, then, to Plaintiff’s deposition testimony, he at several points characterizes both Kerr’s complaint to Harp and his own conversation with Harp as having involved “racism.”84 However, Plaintiff’s testimony about how Harp actually described Kerr’s complaint, and about what Kerr actually told him about his complaint to Harp, does not contradict Harp’s sworn testimony that Kerr’s complaint to her did not involve an accusation of racism[.]
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Rather, Plaintiff’s full testimony is consistent with Harp’s contention that Kerr’s complaint was “that John Thixton was rude and condescending.” Harp Dep. at 139. In particular, Plaintiff testified that Kerr’s complaint to Harp involved Kerr being “upset about just John’s tone…[H]e had a lot of issues with John’s delivery.” Pl. Dep. at 326 (emphasis added); see also, id. at 324-325 (“[Arthur] felt like John was—spoke to him, you know, in a way that was condescending. You know, from a place of superiority.”) (emphasis added); id. at 326 (“[Arthur] was upset about just John’s tone with me, his word choice[.]”) (emphasis added).
Similarly, Plaintiff’s testimony about what he actually told Harp during their conversation does not indicate he ever complained that he or anyone else was experiencing discrimination on the basis of race. Indeed, after Plaintiff suggested at deposition that the conversation had involved “racism,” opposing counsel carefully pinned him down about what was actually said, and Plaintiff admitted that he never used the words “racism” or “racist,”85 but rather, that he had complained about Thixton’s “open contempt,”86 which, as discussed earlier, Plaintiff defined as involving Thixton’s “condescending” and “dismissive” “tone.”87 Apart from that, Plaintiff testified only that he mentioned Thixton telling him to mop a floor; Thixton opening his office door; and Thixton giving jackets to three employees. Plaintiff did not testify to specifically referencing race at any point during the conversation.
The court concluded that “[e]ven viewed in the light most-favorable to Plaintiff, this was insufficient to put Harp on notice that Plaintiff was complaining about racial discrimination.”