City HRL Retaliation Claim Stated; Court Cites Threat to “Make the Situation Worse” For Plaintiff if She Continued to Complain

In O’Rourke v. National Foreign Trade Council, No. 10104, 156502/16, 2019 N.Y. Slip Op. 07489, 2019 WL 5232866 (N.Y.A.D. 1 Dept., Oct. 17, 2019), the court unanimously affirmed the lower court’s decision (by Supreme Court judge Alan Marin) to deny defendant’s motion to dismiss for gender discrimination and retaliation under the New York City Human Rights Law.

After concluding that plaintiff stated a claim for gender discrimination, the court turned to plaintiff’s retaliation claim:

The complaint also states a claim for retaliation under the HRL (see Administrative Code ยง 8-107[7]; Williams, 61 AD3d at 70-71) by alleging that, after plaintiff engaged in protected activities, her supervisor took away her responsibility for hiring support staff and ability to use such staff as a resource; excluded her from projects and ignored and hid information from her; publicly undermined her; and took away her planning responsibilities with respect to two annual conferences. The supervisor’s alleged gender-discriminatory statements [including, e.g., referring to women as “sensitive flowers” and stating that plaintiff’s supervisor “only supports humble and meek women”] are sufficient to raise an inference of retaliatory animus – especially when viewed in conjunction with his alleged threat to “make the situation worse” for plaintiff if she continued to complain. Although defendant is correct that some of the alleged protected activities occurred after the alleged retaliatory conduct, and thus could not have been causally related thereto, most of the protected activities occurred before the alleged retaliation.

While the court acknowledged that defendant was “correct that the employer’s conduct after the employee engaged in protected activity does not constitute retaliation where it is a continuation of the course of the employer’s conduct before the employee engaged in the protected activity”, here, “while some of plaintiff’s supervisor’s alleged retaliatory conduct mirrored conduct that occurred before the protected activities, the complaint alleges at least some ‘new’ or escalated conduct after the protected activities took place” and “[w]hether the motivation for this conduct was retaliation or continued discrimination [*2]cannot be determined at this stage of the litigation.”