Retaliation Claim Survives Summary Judgment Against Barton Chevrolet

In Domingues v. Barton Chevrolet Cadillac et al, 18-CV-07772, 2021 WL 637016 (S.D.N.Y. Feb. 17, 2021), the court, inter alia, denied defendant Barton Chevrolet’s motion for summary judgment on plaintiff’s retaliation claim (arising from her complaints of sexual harassment) asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

From the decision:

To establish a prima facie case for retaliation under Title VII “an employee must show that (1) she was 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.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)). Here, Defendants argue only that Plaintiff cannot establish the third or fourth elements of a retaliation claim. …

The Court finds that a reasonable jury could conclude that Plaintiff’s transfer from the Sales Building to the Service building—and the accompanying change in her job duties and inability to receive comparable compensation—could constitute a materially adverse employment action. When working in the Sales Building, Plaintiff’s duties consisted of clerical tasks and did not include any physical labor. (56.1 Stmt. ¶ 6 (citing Domingues Dep. at 26:20-27:2); 56.1 Opp’n ¶ 37 (citing Milkovich Dep. at 26:18-31:21)). When Plaintiff was transferred to the Service Building, she continued to do some of the same clerical work, but she testified that she was also “doing manual, physical work, lifting parts that were heavier than [her].” (56.1 Op’n ¶ 37 (citing Domingues Dep. at 64:12-17)). Milkovich corroborated Plaintiff’s testimony stating that after Plaintiff was transferred to the Service Building her job duties involved manual labor, including “lift[ing] boxes and car parts.” (Id. (citing Milkovich Dep. at 72:19-21)). Additionally, according to Plaintiff, the Service Building was “filthy,” and whereas in the Sales Building Plaintiff’s role was customer-facing, “customers [were] not allowed” in the Service Building. (Domingues Dep. at 64:2-66:17). Finally, while Plaintiff’s hourly rate and benefits did not change after her transfer (56.1 Stmt. ¶ 36), Plaintiff testified that she received less money when working in the Service Building as she would be sent home early because “[t]here was nothing for [her] to do” (56.1 Opp’n ¶ 36 (citing Domingues Dep. at 64:20-21, 84:15-18)), and she could no longer work on Saturdays and receive overtime pay (id. (citing Domingues Dep. at 29:12-15, 66:22-25, 84:15-20)). Taken together, the change in job duties paired with the reduction in hours and elimination of opportunity to receive overtime pay creates a triable issue of fact as to whether Plaintiff was subject to a materially adverse employment action.

As to the fourth element of a retaliation claim, whether there was a causal connection between the protected activity (Plaintiff’s complaint about sexual harassment) and the adverse employment action, Defendants argue that Plaintiff was transferred to prevent additional interactions between Plaintiff and DiCrese, not because she had complained about sexual harassment. (Defs. Br. at 20-22). It is for a jury to decide whether Plaintiff would not have been transferred to the Service Building but for her complaint to supervisors and Barton that she had been sexually harassed. Plaintiff first complained to Barton directly about the May 12 Incident on August 9, 2017; and then did not come to work for approximately three weeks. Upon her return, Plaintiff was transferred from the Sales Building to the Service Building. (56.1 Stmt. ¶ 34 (citing Domingues Dep. 59:15-60:16; Ex. N at 13); id. ¶ 35 (citing Milkovich Dep. at 71:14-20)). A straight line is easily drawn between these two events, and thus a jury could find that a causal connection has been established. See Chamberlin v. Principi, 247 F. App’x 251, 254 (2d Cir. 2007) (finding that the “causal connection needed for a prima facie case can … be ‘established … by showing that the protected activity was closely followed in time by the adverse action.’ ” (quoting Lovejoy-Wilson v. NOCO Motor Fuel Inc., 263 F.3d 208, 224 (2d Cir. 2001))).

Based on this, the court denied defendants’ motion for summary judgment on plaintiff’s Title VII retaliation claim against Barton Chevrolet,

For the same reason, the court likewise held that issues of fact precluded summary judgment against Barton Chevrolet under the New York State Human Rights Law.

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