Retaliation Claim Against Archdiocese of NY Survives

In Asabor v. Archdiocese of NY, 2013 NY Slip Op 00275 (App. Div. 1st Dept. Jan. 22, 2013), a New York appellate court reversed summary judgment to defendants on plaintiff’s retaliatory discharge cause of action.

Plaintiff, a Nigerian-born black woman, sued her employer and various individuals after she was fired from her job as a mental health nurse.  Plaintiff claimed that she was fired after complaining to her supervisors about racist comments, such as being called an “African bitch” and being told she should “go back to the jungle”.  She repeatedly stated her intention to call a lawyer “because no one was listening to” her complaints of discrimination.  Defendant claimed that it fired plaintiff for her role in a fight with, among others, her alleged harasser.

Under the NYS Human Rights Law, a plaintiff seeking to recover for unlawful retaliation must show:  (1) plaintiff was engaged in protected activity, (2) the employer was aware that she participated in such activity, (3) plaintiff suffered an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse action.  The court held that plaintiff established elements 1 and 2, and raised issues of fact regarding elements 3 and 4:

Regarding protected activity, plaintiff made numerous complaints that Beacon was infested by unlawful discrimination, of which she was a frequent target, and she indicated both orally, and in writing, her intent to call an attorney if those in supervisory positions at Beacon did not act to remedy the rampant and blatant racist conduct of Quattracchi and others that she was required to endure in order to bring home a paycheck. The hostility at Beacon imploded on the afternoon of August 9, 2005, and as plaintiff was suspended for her role in the altercation, she reiterated her intention to call a lawyer.

With respect to her employers’ awareness of the protected activity, it is plain that all of plaintiff’s supervisors knew she was unhappy with the way she was treated. She indicated as early as the meeting in the fall of 2004 that she intended to seek an attorney if the racist behavior did not end. Jasper, one of plaintiff’s supervisors, actually suggested she keep a log of unlawful acts and statements.

Defendants proffered a legitimate nondiscriminatory basis for terminating plaintiff — the prohibition against workplace altercations. However, the fight was the direct result of 13 months of escalating hostility of which defendants were aware, and which the record reflects stemmed from racial animus. It is arguable that by firing all three participants in the fight … defendants were acting in a race neutral manner.  An equally plausible inference, given the nature and degree of unaddressed racial animus at Beacon, is that defendants were motivated by a justified fear of liability stemming from an insufficient response to plaintiff’s complaints[.]

As the Court of Appeals has recognized, discrimination is “[usually] accomplished . . . by devious and subtle means]”[.] … Given that competing inferences are reasonably drawn from this record, summary judgment is not warranted. It is the province of a jury to weigh the evidence, assess credibility, and ultimately determine whether defendants’ actions were retaliatory.  (Emphasis added.)

The record also showed that the individual defendants (named Tomasso, Jasper, Scimone and Morgan) were plaintiff’s “employers” under the NYS Human Rights Law.

Specifically, they “all had the authority to make and effectuate high-level managerial decisions [and] did more than carry out personnel decisions made by others[.]”  For example:

Jasper attested that she and Scimone interviewed plaintiff for her position. She also testified that after conferring with Tomasso, she and Tomasso made the decision to hire plaintiff. Jasper encouraged plaintiff to keep track of racial incidents, and advised plaintiff to come to her with any problems. Morgan similarly advised plaintiff to come to him so that he could handle any problems she was having with Quattracchi. After plaintiff wrote to Jasper and Scimone, they, and Tomasso, held a meeting at the Archdiocese headquarters, and promised to stem the hostile work environment at Beacon. Plaintiff testified that she brought problems with Quattracchi to Scimone’s attention, but he repeatedly shrugged them off.

The court also held that “issues of fact exist as to whether defendants condoned racially discriminatory conduct, by approving or acquiescing to the actions of” the alleged harassers.  The court cited the Court of Appeals’ 1985 decision in Matter of State Div. of Human Rights v. St. Elizabeth’s Hosp. for this proposition and the Third Department’s 1994 decision in Goering v. NYNEX Info. Resources Co. for the proposition that “calculated inaction to employee’s harassing conduct may readily indicate condonation”.

Finally, the court held that plaintiff “failed to identify any evidence that any of the individual defendants ‘actually participate[d]’ in the alleged discriminatory acts so as to support her alternative theory of individual liability on the grounds of aiding and abetting the alleged acts[.]”

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