Retaliation Claims Dismissed Due to Absence of “Protected Activity”; Plaintiff’s Complaints Were Unrelated to a Legally Protected Characteristic

In Pouncy v. Advanced Focus LLC, 2017 WL 428094 (S.D.N.Y. Sept. 25, 2017), the court (inter alia) granted defendant’s motion for summary judgment on plaintiff’s retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1981, and the New York City Human Rights Law.[1]I wrote about the court’s dismissal of plaintiff’s hostile work environment claim here.

The court explained the basic legal requirements for a prima facie case of retaliation:

To make out a prima facie case of retaliation, a plaintiff must make four showings: that (1) [he] engaged in a protected activity; (2) [his] employer was aware of this activity; (3) the employer took adverse employment action against [him]; and (4) a causal connection exists between the alleged adverse action and the protected activity. (Emphasis added.)

The court explained what “protected activity” is, and how it is demonstrated:

To satisfy the first element of the prima facie test, a plaintiff “need not establish that the employer’s conduct being opposed was in fact prohibited discrimination.” Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217 (RJS) (JLC), 2013 WL 6231615, at *26 (S.D.N.Y. Dec. 2, 2013), aff’d sub nom. Farzan v. Genesis 10, 619 F. App’x 15 (2d Cir. 2015) (summary order). But he must prove that he possessed a good faith, objectively reasonable belief that the employment practice at issue was unlawful under the relevant statutes. Id.; accord Kelly v. Howard I. Shapiro & Associates Consulting Eng’rs, P.C., 716 F.3d 10, 14-15 (2d Cir. 2013); Orellana v. Reiss Wholesale Hardware Co., No. 14-CV-1913 (NGG) (LB), 2016 WL 4480720, at *8-9 (E.D.N.Y. June 8, 2016); see also Farzan, 2013 WL 6231615, at *29 (“The NYCHRL, even with its more liberal standard, still demands reasonableness to substantiate retaliation claims.”). Additionally, to ensure that the employer is put on notice of the allegedly unlawful conduct, “[t]he onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally.”Aspilaire v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 308-09 (S.D.N.Y. 2009) (emphasis added). In light of that rule, courts have repeatedly held that merely notifying an employer of discriminatory conduct, “without specificity,” does not qualify as protected activity. Dinice-Allen v. Yale-New Haven Hosp., No. 3:06-CV-675 (PCD), 2008 WL 160206, at *4 (D. Conn. Jan. 10, 2008); see, e.g., Paul v. Lenox Hill Hosp., No. 13-CV-1566 (CBA) (LB), 2016 WL 4775532, at *18 (E.D.N.Y. Jan. 15, 2016) (“[T]he words ‘bias’ or ‘discrimination’ alone do not convey any belief that Plaintiff was subjected to discrimination based on her membership in a protected class.”), report and recommendation adopted, 2016 WL 1271034 (E.D.N.Y. Mar. 29, 2016); Farzan, 2013 WL 6231615, at *28 (holding that “no reasonable juror could conclude” that the plaintiff’s complaints “constituted opposition to conduct prohibited by discrimination laws” where he merely told the defendant “that he would file a ‘discrimination complaint’ ”); Ramos v. City of N.Y., 96-CV-3787 (DLC), 1997 WL 410493 (S.D.N.Y. July 22, 1997) (“To be actionable, the unfair treatment must be due to one’s membership in a protected class and the complaint must make that point sufficiently clear.”). (Emphasis added.)

Applying the law, the court held that plaintiff “did not adequately frame [his] complaint as one challenging unlawful or, specifically, race-based discrimination to qualify it as protected activity.” (Emphasis added.) Specifically, there was “no evidence that Pouncy allude[d] once to race, gender, national origin, religion or any other protected characteristic as playing a role in Defendants’ conduct.”

1 I wrote about the court’s dismissal of plaintiff’s hostile work environment claim here.
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