Title VII Retaliation Claim Survives Dismissal [Duplan v. City of New York]

In Duplan v. City of New York, 2018 WL 1996613 (2d Cir. April 30, 2018), the U.S. Court of Appeals held, inter alia, that plaintiff – a gay black Haitian man – sufficiently alleged retaliation under Title VII of the Civil Rights Act of 1964.

The court initially held that plaintiff, a New York City employee, could not pursue his discrimination claim under 42 U.S.C. § 1981, and that “42 U.S.C. § 1983 provides the sole cause of action available against state actors alleged to have violated § 1981.”

As for his Title VII claims, the court held that his retaliation claims, based on acts of retaliation that were not timely presented to the EEOC after he failed to file a timely lawsuit (within  90 days of receiving a right-to-sue letter) based on that charge, were time barred.

The court reached the opposite conclusion, however, with respect to his retaliation claim based on alleged retaliatory acts committed within 300 days of his second (2014) complaint.

Causation with respect to that claim, held the court, was sufficiently alleged:

[A]n inference of causation is more easily drawn when one considers the facts as a whole. … [P]roof of causal connection can be established indirectly by showing that protected activity is followed by discriminatory treatment. … Duplan alleges that each of the adverse actions alleged above occurred against a backdrop of continuing antagonism and frustration of his professional ambitions. Following his 2011 complaints, his supervisors collectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn. Because the burden for establishing a prima facie case of retaliation is “de minimis[]” …, we conclude that Duplan’s allegations are sufficient to survive at this stage.

The court also held that plaintiff sufficiently alleged retaliation based on his 2014 complaints:

An adverse employment action in a retaliation case includes conduct that is harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination. … We have previously recognized “significantly diminished material responsibilities” as the sort of employment action “sufficiently disadvantageous to constitute an adverse employment action” in a Title VII case. … Duplan alleges that his responsibilities were so diminished shortly after he filed his 2014 complaint, when the City assigned him duties well below his civil service and functional titles and took away his access to the personnel management program, thereby rendering him unable to perform the sole task he had retained from his pre-2011 responsibilities.12 Accordingly, we conclude that Duplan’s allegations that he suffered an adverse employment action in retaliation for filing his 2014 EEOC complaint are sufficient to avoid dismissal of his 2014 retaliation claim at the pleading stage.

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