Retaliation Claim Dismissed; “Generalized Complaints” Did Not Constitute “Protected Activity”

In Green v. Mount Sinai Health System, Inc. et al, 2020 WL 6165969 (2d Cir. Oct. 22, 2020) (Summary Order), the court affirmed the dismissal of plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.

Specifically, the court held that (1) plaintiff did not engage in “protected activity”, (2) plaintiff did not suffer an “adverse employment action”, (3) there was an insufficient causal nexus between the alleged protected activity and the alleged adverse action, and (4) plaintiff did not show that the employer’s proffered reasons were a pretext for unlawful retaliation.

As to “protected activity,” the court explained:

We agree with the district court that the only protected activities at issue were Green’s 2008 and 2017 filings with EEOC. We have repeatedly held that generalized grievances about an unpleasant or even harsh work environment, without more, do not reasonably alert an employer of discriminatory conduct and therefore fail to rise to the level of protected activity. See, e.g., Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011) (affirming dismissal where the “competent evidence in the record showed that any complaints [the plaintiff] made were generalized”). Although a plaintiff “may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful,” the plaintiff’s “belief must be reasonable and characterized by objective good faith.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 16 (2d Cir. 2013) (emphasis added) (citation omitted). Other than the EEOC charges, Green’s other complaints fall into the category of generalized employment complaints and are not allegations about unlawful discrimination.

Next, the court held that “[m]ost of Green’s complained-of employment actions, such as informal criticism of his work or denial of a vacation request, without more, do not constitute materially adverse employment actions.”

It also found that there was insufficient evidence of causation as between protected activity and adverse action, noting that “of the three possible materially adverse actions, two of them—a March 2018 comment that Green did not belong in the department and unspecified assignments to mandatory shifts—are too attenuated or not temporally specific enough to create an inference of causation based on temporal proximity.”

Moreover, the court found that “the district court properly concluded that Green failed to rebut Appellees’ evidence that the reprimand Green received in March 2017 was due to his unexplained absences and other misconduct” and that plaintiff did not meet his burden of showing that the employer’s reasons were “in fact pretext for unlawful retaliation.”

While the above analysis applied specifically to plaintiff’s claims under federal and state law, the court also held that plaintiff’s claims under the (comparatively broader) New York City Human Rights Law for essentially the same reasons.

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