Section 1981 Retaliation Claim Dismissed Against New Rochelle School District

In Butler v. City School District of New Rochelle et al, 2020 WL 6639121 (S.D.N.Y., 2020), the court denied plaintiff’s motion for reconsideration of its decision to dismiss plaintiff’s claim of retaliation asserted under 42 U.S.C. § 1981.

The court explained that such a motion is subject to a strict standard, which requires the movant to demonstrate “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”

As to the merits, the court explained that “[t]o plead a prima facie case of retaliation under 42 U.S.C. § 1981, a plaintiff must plausibly allege (1) that 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.”

After elaborating on each element, the court proceeded to apply the law to the facts.

First, plaintiff does not plausibly allege she engaged in a protected activity by opposing or protesting racial discrimination. See Cruz v. Coach Stores, Inc., 202 F.3d at 566. Plaintiff alleges she “summarized for Williams” an event during which Barnes goaded her, “as a black woman,” to confirm at a public meeting that “security making more of a presence on some buses, but not others, was ‘racist.’ ” (Doc. #1 (“Compl.”) ¶¶ 45–47). However, plaintiff’s statements to Williams do not plausibly allege she opposed or protested racial discrimination. Instead, plaintiff alleges she told Williams that she “gently pushed back and explained that the situation was not racist, and explained to the audience why she disagreed with Barnes, her boss.” (Id. ¶ 49) (emphasis added). Furthermore, even if plaintiff’s opposition to Barnes’s statement did oppose racial discrimination, her statements show opposition to discrimination towards non-employees, not opposition to a discriminatory employment practice. Cf., e.g., Wimmer v. Suffolk Cty. Police Dep’t, 176 F.3d at 134–35 (finding on summary judgment that reports of racial slurs by fellow police officers towards citizens could not support retaliation claim for opposing discriminatory employment practice). The complaint does not plausibly allege plaintiff engaged in protected activity opposing or protesting racial discrimination during her conversation with Williams, or at any other point. …

Further, even assuming plaintiff plausibly alleged she engaged in protected activity of which the District was aware, plaintiff does not plausibly allege her January 2019 conversation with Williams was the “but-for” cause of her May 2019 termination. Plaintiff alleges that, a month after her meeting with Williams, “Barnes began to express retaliatory animus by claiming plaintiff wanted his job,” “was actively seeking to undermine him,” and “thought that she was smarter than he was.” (Compl. ¶¶ 51–52) (alterations and quotations omitted). Plaintiff alleges that, thereafter, a “chain of events” took place that consisted of plaintiff being forced to conduct out-of-school suspensions, deal with irate parents, and oversee a “testing fiasco” for which she was unfairly blamed. (Doc. #36 at 11–12; Compl. ¶¶ 54–70). These events allegedly culminated in Williams administratively reassigning plaintiff in April 2019 pending an investigation into the “testing fiasco.” (Compl. ¶¶ 71–74). In May 2019, representatives of the District, including Williams, told plaintiff she would likely be terminated because of the “testing fiasco” and her “alleged inability to effectively communicate with parents.” (Id. ¶ 75).

The complaint does not plausibly allege plaintiff would not have been terminated but-for her complaints about or opposition to discrimination. Viewing the complaint as a whole, plaintiff’s alleged protected activity was too attenuated from her termination to plausibly have been the but-for cause of her termination. See Summa v. Hofstra Univ., 708 F.3d at 127. Plaintiff’s allegations that the District orchestrated the events following her conversation with Williams to establish pretext to terminate her employment are conclusory. (Compl. ¶¶ 53, 68, 74 76–78). The Court would need to accept these conclusory allegations as fact in order to infer that plaintiff plausibly alleged her January 2019 conversation with Williams was the but-for cause of her May 2019 termination. Other than plaintiff’s conclusory allegations that the District orchestrated an intervening chain of events between her conversation with Williams and her termination, the complaint contains no factual content from which the Court can reasonably infer that plaintiff’s opposition to or protest of racial discrimination was the but-for cause of her termination. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d at 90–91; Ashcroft v. Iqbal, 556 U.S. at 678.

Finally, while plaintiff does plausibly allege that Barnes’s expressions of “retaliatory animus,” including comments that plaintiff “wanted his job” or “thought she was smarter than him,” were causally related to her January 2019 conversation with Williams (Compl. ¶ 51–52), these allegations, at most, amount to “petty slights” that do not rise to an adverse employment action that would dissuade a reasonable worker from making or supporting a charge of employment discrimination.

The court concluded that plaintiff’s complaint fails to plausibly allege a claim fro retaliation for opposing racial discrimination under Section 1981, and the court did not err in dismissing the complaint.

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