Post-Termination Retaliation Claim Dismissal Affirmed

In Rivas v. New York State Lottery, 2018 WL 6656390 (2d Cir. Dec. 18, 2018) (Summary Order), the court (inter alia) affirmed the dismissal of plaintiff’s retaliation claim.

What makes this case arguably somewhat unique is that the alleged retaliation occurred after plaintiff left defendant’s employment.

From the Order:

The District Court did not err in dismissing Rivas’s only timely retaliation claim for failure to state a claim. For a Title VII retaliation claim to survive a motion to dismiss, the plaintiff must plausibly allege that the employer took an adverse employment action against her because she opposed any unlawful employment practice. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015). A plaintiff may state a claim for retaliation even if she is no longer employed by the defendant company “if, for example, the company ‘blacklists’ the former employee.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). Here, Rivas alleges that Kinsey continually harassed her after she left NYS Lottery by, inter alia, facilitating hostile work environments at her subsequent jobs and by “blacklisting” her. But Rivas does not allege that NYS Lottery—her former employer and the only defendant in this case—took any adverse employment actions against her at her subsequent jobs. Her complaint focuses only on Kinsey and his alleged retaliatory acts. Rivas does not allege that Kinsey was employed by the NYS Lottery, that his actions could somehow be imputed to the NYS Lottery, or that NYS Lottery could control his actions. The only alleged relationship between NYS Lottery and Kinsey is that Kinsey represented NYS Lottery in the 2000 Suit. Because Rivas does not allege that her employer, NYS Lottery, took any adverse action against her after her termination, the District Court did not err when it dismissed Rivas’s timely OTDA claim for failure to state a claim.

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