Retaliation and Sexual Orientation Discrimination Claims Continue Against UBS

In a recent decision, the Southern District of New York recently denied defendant UBS Financial Services’ motion for summary judgment on plaintiff’s claims that she was terminated in retaliation for complaining about a co-worker’s sexist comment, and because of her revelation that she is gay.

Shortly before plaintiff’s termination, plaintiff told the company that she had an “unprovoked incident with a male colleague” and that she was “verbally bashed for being an unmarried woman”. She clarified that the offensive comment was that “because I’m not married, I’m either a dyke or a slut.”

As to whether plaintiff engaged in “protected activity”, the court held that “[a] plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.”

It rejected defendant’s argument that the single remark at issue was insufficient to support a retaliation claim, noting that “the issue in a retaliation claim is not whether the complained-of conduct actually violated the law, but whether the complainant reasonably believed that it did.”


It is for a jury to decide whether [plaintiff] reasonably believed that the comment was unlawful. To the extent that multiple incidents are required to sustain a reasonable belief in unlawful conduct … [plaintiff] had made two prior complaints to HR about inappropriate treatment in 2004 and 2008. Although [plaintiff] does not claim that she was terminated in retaliation for reporting those prior incidents, they provide some context for the reasonableness of her belief that the offensive remarks at issue were unlawful. Indeed, she was transferred to the 1285 Branch after claiming that a prior supervisor had “created a hostile work environment.” Accordingly, a jury is the appropriate arbiter of whether [plaintiff]’s belief was reasonable in this case.

It further held that “a jury could reasonably interpret [plaintiff]’s conduct as opposition to the offensive comments”, noting that “[w]hile she did not lodge a formal complaint, she made clear that she disapproved of the comments and felt she had been ‘verbally bashed.’” The court applied the principle that a plaintiff alleging retaliation may show that s/he “opposed” discrimination by “taking no action at all to advance a position beyond disclosing it”; that is, s/he need not “exhibit active, consistent behavior in order to ‘oppose’ discriminatory conduct.”

Plaintiff also presented sufficient evidence of pretext, i.e., that her complaint was a “but-for” cause of her termination. In reaching this conclusion the court pointed to “inconsistencies and contradictions in both UBS’s stated reasons for her termination and in its account of the timing of the decision.” While it was possible to interpret defendant’s EEOC statement consistently with its litigation theory, “a jury could reasonably view such a significant omission from UBS’s EEOC submission as evidence that it subsequently altered its position as a pretext to justify the termination decision.”


For purposes of [plaintiff]’s retaliation claims, the issue is not whether these reasons are themselves impermissible, but whether they represent inconsistencies in UBS’s account of the reasons for [plaintiff]’s termination. Here, UBS’s shifting story about the timing and rationale for the termination decision constitutes sufficient evidence from which a reasonable jury could conclude that UBS’s stated reasons might be pretextual. …

The applicable standard of “but-for” causation does not preclude a finding of pretext. Here, on the basis of UBS’s own EEOC submission, a reasonable jury could conclude that the termination decision was not made until after [plaintiff]’s November 12 email. Furthermore, a jury could conclude that the November 12 email amounted to the “final straw” that convinced [plaintiff]’s supervisors to terminate her. Indeed, [plaintiff] alleges that Thurston said “we don’t want this hanging over our head.” Thus, a reasonable jury could conclude that had [plaintiff] not complained about the offensive comment, her supervisors would not have ultimately decided to terminate her.

Finally, the court held that issues of fact – namely, as to what plaintiff said and whether her supervisor understood them to mean that plaintiff is gay – preclude summary judgment on plaintiff’s sexual orientation discrimination claim under the New York State and City Human Rights Laws.

It “swiftly rejected” defendant’s argument that the fact that plaintiff never referred to herself as “gay” or “lesbian” conclusively established that her supervisor did not know she is gay, pointing to plaintiff’s testimony that, during the week of the investigation, she made several statements to her supervisor to the effect that she “leads an alternate lifestyle” and “doesn’t date men.”

Plaintiff also demonstrated an inference of discrimination and pretext:

First, as described above, there is a genuine dispute about whether UBS’s termination decision came only days after [plaintiff]’s alleged disclosure of her sexual orientation. … Second, after this alleged disclosure, Brady drafted an email in which she characterized as “concerning” [plaintiff]’s “publically proclaiming her fondness of me at office outings” and “follow[ing] me around at office events wanting to get all my attention.” Taking these facts together, a reasonable jury might conclude that after Brady learned that [plaintiff] was gay, Brady felt uncomfortable with [plaintiff]’s past proclamations of “fondness,” which at least partially motivated Brady to terminate [plaintiff]’s employment. 

With respect to pretext, [plaintiff] has met her burden for the same reasons discussed above: UBS’s timeline and rationale for her termination reflect significant inconsistencies. … Accordingly, there is a triable issue of pretext for [plaintiff]’s sexual orientation discrimination claims.

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