Retaliation Claims Dismissed Against the NYC Department of Education; “Adverse Action” Preceded “Protected Activity”

In Clarke v. New York City Department of Education et al, 2020 WL 6047426 (E.D.N.Y. Oct. 13, 2020), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s claim of retaliation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

The court summarized the “black letter” law of retaliation as follows:

Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees … 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 an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Claims for retaliation under Title VII, and under the corresponding provisions of the NYSHRL, are analyzed under the McDonnell Douglas framework. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (“The standards for evaluating … retaliation claims are identical under Title VII and the NYSHRL.”). Under the NYCHRL, a plaintiff “need only show the employer’s conduct was reasonably likely to deter a person from engaging in protected activity.” Husser v. N.Y.C. Dep’t of Educ., 137 F. Supp. 3d 253, 274 (E.D.N.Y. 2015).

To state a prima facie claim for retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action. Kelly, 716 F.3d at 14. A causal connection between protected activity and a retaliatory adverse action may be established either: “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.”

While the court held that plaintiff satisfied her minimal burden to state a prima facie case, her retaliation claims failed at the third step of the applicable burden-shifting framework.

In sum, the court pointed the crux of the court’s decision was that: (1) plaintiff was informed of the “adverse action” (here, a “U” rating) before plaintiff engaged in “protected activity” (plaintiff’s filing a discrimination complaint at the NYC Commission on Human Rights); and (2) there was “not sufficient evidence that Principal Christie’s behavior towards Ms. Clarke was meaningfully different after her complaint than it was before.”

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