Title VII Retaliation Claim Dismissed; “Gender Plus Parental Status” Complaint Did Not Constitute “Protected Activity”

In Meagher v. State University Construction Fund et al, 2020 WL 5504011 (N.D.N.Y. Sept. 11, 2020), the court, inter alia, dismissed plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.

The court summarized the “black letter” law applicable to plaintiff’s Title VII retaliation claim:

Title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment … to discriminate against any individual … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show the following four things: “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Russell v. Aid to Developmentally Disabled, Inc., 753 F. App’x 9, 14 (2d Cir. 2018) (quoting Summa v. Hofstra Univ., 708 F.3d 115, 125 [2d Cir. 2013]). “Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action.” Summa, 708 F.3d at 125. “If the employer demonstrates such a reason, the burden shifts back to the plaintiff to adduce evidence from which a rational finder of fact could infer ‘that the desire to retaliate was the but-for cause of the challenged employment action.’ ”

Here, plaintiff lodged a complaint under the company’s “anti-bullying policy” about conduct that she had been subjected to in the workplace. Specifically, plaintiff testified that, inter alia, she complained that she was “asked to make a choice between being a mother spending time with her child and having a job at the Fund” and that “she felt that [one individual defendant] had become hostile towards her after she made her request to spend time with her daughter.”

Initially, the court held that plaintiff did not engage in “protected activity”:

It is well established that parental status is not a protected characteristic for the purposes of Title VII. Rotondo v. Best Buy Stores LLC, 17-CV-0522, 2019 WL 4805374, at *8 n.8 (N.D.N.Y. Oct. 1, 2019) (Hurd, J.). As noted above, the evidence (including Plaintiff’s own notes about the situation) indicates that she was reporting discrimination and/or harassment based on her status as a “mother.” However, even if Plaintiff believed that she was being discriminated against or harassed because she is a mother, she has not adduced any admissible evidence from which a reasonable factfinder could conclude either that (a) she believed that the treatment was based specifically on her status as a mother (as opposed to a father) and thus on her status as a woman, or (b) any belief that she was targeted as a mother/woman specifically was an objectively reasonable belief.

Plaintiff argues that she has sufficiently shown that she reasonably believed that her conduct was covered by a “gender-plus” theory (with the “plus” being her parental status), whether or not she can sustain a claim on that basis. (Dkt. No. 67, at 21-22 [Pl.’s Opp’n Mem. of Law].) However, Plaintiff’s argument ignores the fact that, even in a “gender-plus” case, she must still show that her gender played some role. As already discussed, although Plaintiff frames it as her feeling that she was required to choose between being a mother and her job, there is no admissible evidence to establish that she believed that it was the fact that she was a mother specifically (and thus a woman) as opposed to that she was a parent that caused Defendants to act in the ways that they did. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004) (“The relevant issue is not whether a claim is characterized as ‘sex plus’ or ‘gender plus,’ but rather, whether the plaintiff provides evidence of purposefully sex-discriminatory acts.”) (emphasis added). In particular, none of the evidence (including the statements by [the individual] Defendants []) reasonably indicate that their treatment of Plaintiff was based on the fact that Plaintiff was a woman or on any kind of stereotype about working mothers, or that they would have treated a male father in a different manner. The fact that Plaintiff subjectively felt that the long hours she was being asked to work were interfering with her ability to spend more time with her children (and thus to be a parent) does not turn Defendants’ treatment of her into gender-based discrimination, nor does it show that she reasonably believed that Defendants’ conduct was motivated by the fact that she is a woman specifically.

Based on this, the Court “reject[ed] Plaintiff’s argument that she has sufficiently shown that she reasonably believed she was reporting ‘gender-plus’ discrimination or harassment.”

The Court went on to explain that even if plaintiff’s complaint constituted “protected activity,” it concluded (alternatively) that plaintiff failed to demonstrate causation (in that many of the alleged “adverse actions” began before plaintiff made her complaint) or that the alleged actions rose to the level of “adverse employment actions” (but were rather better characterized as “petty slights or minor annoyances”). While in this post I have focused on the element of “protected activity,” the court’s detailed analysis of the “causation” and “adverse employment action” elements is likewise instructive.

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