Retaliation Claim Dismissed; Court Discusses What Constitutes “Protected Activity”

In Peddy v. L’Oreal USA, Inc., 18-cv-7499, 2020 WL 4003587 (S.D.N.Y. July 15, 2020), the court, inter alia, dismissed (on summary judgment) plaintiff’s claim of retaliation asserted under the Age Discrimination in Employment Act.

While the court ultimately based its decision on the fact that plaintiff failed to establish the element of “causation” as part of her prima facie case – i.e., that there was a causal connection between plaintiff’s engaging in “protected activity” and the “adverse employment action” she suffered – here I will discuss the court’s assessment of whether she engaged in “protected activity.”

This is an important point, since not all complaints submitted to an employer qualify as “protected activity” necessary to make out an actionable retaliation claim.

From the decision:

[M]aking an internal complaint of discrimination is ‘protected activity’ when the employee can show a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Murphy v. City of Newburgh, 785 F. App’x. 900, 902 (2d Cir. 2019) (quoting McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001)). “And not just any law—the plaintiff is ‘required to have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by [the ADEA].’ ” Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (quoting McMenemy, 241 F.3d at 285 (2d Cir.2001)). “A plaintiff’s belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form.” Kelly, 716 F.3d at 15. As the factual record does not support an inference that L’Oréal could have understood Peddy’s questionnaire responses as age discrimination complaints, the questionnaires do not constitute protected activity.

By contrast, Peddy’s June 1, 2016 email explicitly stated that she “fe[lt]” her “age and gender had something to do with this.” Savage Decl. Ex. N. In light of Peddy’s explicit reference to her age, a reasonable juror could conclude that Plaintiff’s June 1, 2016 email constituted protected activity.

Share This:
(212) 227-2100