Father’s Third-Party Retaliation Claim Arising From Daughter’s Sex Discrimination Charge Survives Summary Judgment

In Vormittag v Unity Elec. Co., Inc., 12 CV 4116 RJD RLM, 2014 WL 4273303 [EDNY Aug. 28, 2014], the Eastern District of New York granted defendant’s motion for summary judgment on plaintiff’s age discrimination claim, but denied it with respect to plaintiff’s retaliation claim.

Plaintiff sued after being furloughed and fired due to a large-scale reduction in force, alleging unlawful age discrimination and retaliation. As to plaintiff’s age discrimination claim under the Age Discrimination in Employment Act, the court held that plaintiff failed to show that defendant’s required reduction in force was a pretext for age discrimination.

Plaintiff’s retaliation claim, however, arises from an interesting factual scenario. In the “typical” retaliation fact pattern, the plaintiff alleges that they were subjected to a “materially adverse action” for engaging in “protected activity.” However, in this case, the plaintiff alleged that he was fired because his daughter (another company employee) filed a complaint of sex discrimination.

Citing the Supreme Court’s 2011 decision in Thompson v. North American Stainless, the court held that plaintiff had standing to assert a third-party retaliation claim against defendant:

Mr. Vormittag’s daughter, Ms. Arciuolo, worked at Unity for approximately ten years and was laid off in October 2009, shortly after returning from maternity leave. She filed a charge of sex discrimination against the company with the New York State Division of Human Rights on November 2, 2009, which was still pending at the time Mr. Vormittag was placed on furlough. Ms. Arciuolo clearly engaged in protected activity by filing a sex discrimination charge against Unity after she was fired. Moreover, Unity’s firing her father is the type of adverse employment action that “almost always” deters a reasonable employee from engaging in protected activity; and if Unity did so to retaliate against Ms. Arciuolo, he was aggrieved within the meaning of Title VII.

Turning to the merits, the court held that there was a sufficient factual dispute to warrant denial of summary judgment to defendant:

[E]ven during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons, and Mr. DeMaio’s shift in explanations for firing Mr. Vormittag calls his true reasoning into question. Coupled with Mr. Vormittag’s testimony that Mr. DeMaio “herded [him] into the private office” and urged him to get his daughter to drop her charge against Unity, a reasonable juror could conclude that Mr. DeMaio used the reduction in force as a pretext for retaliation. Mr. Vormittag testified that Mr. DeMaio “looked down at floor like he was in disgust with [him]” when he refused and stated that Unity had “never [been] sued before.” Moreover, Mr. Vormittag tendered an affidavit stating that Mr. DeMaio told him “that people close to [Mr. Vormittag’s] daughter could lose their jobs.” It is for the jury to decide whether this private conversation took place, and, if so, which version they find more plausible. But construing all the evidence in Mr. Vormittag’s favor, there is clearly a genuine issue of material fact as to whether Mr. DeMaio fired Mr. Vormittag in retaliation for his daughter’s sex discrimination charge.

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