Retaliation Claim Dismissed; “Passing Reference” to “Discrimination” Did Not Qualify as “Protected Activity”

In Leslie v. New York University, No. 156583/2018, 2020 WL 5819730, 2020 N.Y. Slip Op. 33203(U) (N.Y. Sup Ct, New York County Sep. 29, 2020), the court, inter alia, dismissed plaintiff’s retaliation claim asserted under the New York State and City Human Rights Laws.

The court summarized the law as follows:

To make a prima facie showing of retaliation, Plaintiff must plead facts that show (1) participation in a protected activity known to Defendant, (2) an adverse employment action, and (3) a causal connection between the protected activity and the adverse employment action (id. at 327). … Under the New York State and City Human Rights Laws . . . retaliation is actionable only when it is done because the employee has, for example, filed a complaint, testified, or assisted in any proceeding, or opposed any practices forbidden ‘under this article’ (Executive Law § 296[7]) or ‘under this chapter’ ” (Administrative Code of City of N.Y. § 8-107[7]) (Forrest, 3NY3d 295, n 11 [2004]). Generalized grievances regarding mistreatment are not “protected activity” for the purposes of either statute.

Applying the law to the facts, the court concluded that plaintiff’s retaliation cause of action failed as a matter of law because plaintiff did not allege that he participated in a “protected activity.”

It elaborated:

To satisfy the first element of the claim, Plaintiff relies on his allegation that, after NYU denied his request to be considered for a promotion in May 2013, he “filed a complaint of **14 discrimination against Day on May 19, 2013” (complaint ¶ 21). Nevertheless, it is revealed in the motion submissions that the purported “complaint of discrimination” refers not to a complaint actually filed with NYU, but to Plaintiff’s email to Day, dated May 19, 2013 (mem in opp at 14; Volpe aff, exhibit 2).3 Plaintiff argues that sending the May 19, 2013, email to Day was a “protected activity” because the email makes a passing reference to “discrimination.” However, the email plainly states that Plaintiff is neither accusing Day of discrimination, nor making a complaint of discrimination (Volpe aff, exhibit B [“I think I would be hard pressed to accuse you . . . of such unethical behavior, and I would prefer to never burn a bridge between us by making such a complaint.”]). Plaintiff’s passing reference to “discrimination” without reference to his marital status or alleging that he was being discriminated against because of his marital status is insufficient to constitute a “protected activity”.

The court cited various cases where the court held that similar claims failed, because the respective plaintiffs did not specifically refer to a protected characteristic in their underlying complaint.

It also rejected plaintiff’s further assertion that email references to other interactions warranted discovery, since plaintiff “neither pled nor identified any additional interactions that he alleges constitute protected activity, despite his participation in the referenced interactions.”

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