Retaliation Claim Not Stated; “General Complaints” Were Not “Protected Activity” Under the NYS Human Rights Law

In Brunache v. MV Transp., Inc., 2017 NY Slip Op 05196 (App. Div. 2d Dept. June 28, 2017), the court held (inter alia) that plaintiff – a paratransit van driver who sued after not being reinstated following his dismissal following an investigation into a sexual harassment complaint against him by a passenger – did not state a claim for retaliation under the New York State Human Rights Law.

The court explained:

Contrary to the Supreme Court’s determination, the complaint does not state a cause of action to recover damages for retaliation in violation of Executive Law § 296(1)(e). “Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices” (Adeniran v State of New York, 106 AD3d 844, 844). To make a prima facie showing of retaliation under Executive Law § 296, a plaintiff must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon that activity, and (4) there is a causal connection between the protected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313; Thide v New York State Dept. of Transp., 27 AD3d 452, 454). An employee engages in a “protected activity” by “opposing or complaining about unlawful discrimination” (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; see Executive Law § 296[1][e]; [7]). Here, the plaintiff failed to allege that he complained about statutorily prohibited discrimination, as opposed to general complaints about MVT’s treatment of [*3]its employees.

The court also held that plaintiff failed to serve defendants with a proper notice of claim (finding that a letter did not constitute a valid notice of claim since it did “not substantially comply with the statutory requirements of General Municipal Law § 50-e[2]”), and that plaintiff failed to state a claim for intentional infliction of emotional distress (finding that the “alleged conduct was not so outrageous or extreme as to support an intentional infliction of emotional distress cause of action”).

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