Retaliation Claim Continues Against City of New York; Court Cites Changed Demeanor After Learning of Lawsuit

In Lues v. City of New York, 2018 NY Slip Op 32546(U), Index No. 161923/2013 (NY Sup. Ct. NY Cty. Oct. 5, 2018), the court held that plaintiff’s retaliation, but not gender and nationality-based discrimination, claims survived summary judgment.

With respect to her discrimination claims, the court noted, inter alia, the absence of “evidence demonstrating that [a male]’s promotion … was because he is a male or based on his national origin”, that a “key decision-maker in the promotion of [the male] is a woman”, and the fact that an African-American woman was promoted. As to plaintiff’s claim that she was compensated less than her male counterparts as a result of her gender, the court stated the plaintiff did not show that she “performed the same functions as her named counterparts.”

The court held for plaintiff, however, on her retaliation claim:

[T]he Court finds that plaintiff has … proffered evidence suggesting retaliatory measures on the part of defendant. To establish a successful  claim for unlawful retaliation, a plaintiff must show that 1) plaintiff engaged in a protected activity; 2) plaintiffs employer was aware that plaintiff participated in such activity; 3) plaintiff suffered an adverse employment action based upon plaintiffs activity; and 4) there was a causal connection between the protected activity and the adverse action. …

Here, plaintiff has proffered evidence that she was not selected for various positions she applied to or for which she was interviewed. Both plaintiff and Mr. James Cox provided in their respective affidavits that Ms. Lues was being groomed for promotions to fill higher positions. Yet, Ms. Lues never attained those positions. She argues that before Mr. Graham and Mr. Cox learned of her lawsuit, she was in great rapport with them. For example, Ms. Lues submitted Probationary Reports written by Mr. Cox and co-signed by Mr. Graham documenting her high qualities as a worker. However, Ms. Lues maintains, as evidenced by their affidavits, that their sentiments shifted once they learned of the suit.

Specifically, the court noted, statements in an affidavit submitted in connection with this lawsuit that were critical of plaintiff were “inconsistent with those made in plaintiff’ probationary report which was signed prior to this lawsuit.”

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