Retaliation Claim Dismissed Against NYC; Officer’s Request for Reasonable Accommodation Was Not “Protected Activity”

In Hyacinthe v. City of New York, No. 151812/2020, 2021 WL 619320, 2021 N.Y. Slip Op. 30443(U), (N.Y. Sup Ct, New York County Feb. 17, 2021), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s retaliation claim. (The court also denied defendant’s motion to dismiss plaintiff’s disability discrimination and failure-to-accommodate-disability claims; I discussed that aspect of the court’s decision here.)

As to plaintiff’s retaliation claim, the court explained:

Under the NYCHRL, it is unlawful to retaliate or discriminate against someone because he or she opposed discriminatory practices. “The retaliation . . . need not result in an ultimate action . . . or in a materially adverse change . . . [but] must be reasonably likely to deter a person from engaging in protected activity.” Administrative Code § 8-107 (7). For plaintiff to successfully plead a claim for retaliation under the NYCHRL, he must demonstrate that: “(1) [he] participated in a protected activity known to defendants; (2) defendants took an action that disadvantaged him; and (3) a causal connection exists between the protected activity and the adverse action.” Fletcher v Dakota, Inc., 99 AD3d 43, 51-52 [1st Dept 2012]. Protected activity under the NYCHRL refers to “opposing or complaining about unlawful discrimination.” Brook v Overseas Media, Inc., 69 AD3d 444, 445 [1st Dept 2010] (internal quotation marks and citations omitted).

If the plaintiff sets forth a prima facie case of discrimination, then the burden shifts to the defendants to rebut the presumption by demonstrating nondiscriminatory reasons for its employment actions. Delrio v City of New York, 91 AD3d 900, 901 [2d Dept 2012]. If the employer meets this burden, plaintiff has the obligation to show that the reasons proffered by the employer were pretextual. Id.


Plaintiff’s retaliation claim has two components. First, plaintiff claims that, after he requested an accommodation in February 2019 due to his disabilities, defendants retaliated against him by accusing him of lying about his injuries, by prohibiting him from using his cane, and by threatening him with suspensions, among other things. Even assuming, without deciding, **16 that these actions are adverse, plaintiff cannot adequately plead a claim because requesting an accommodation is not considered a protected activity for purposes of a NYCHRL retaliation claim. See e.g., D’Amico v City of New York, 159 AD3d 558, 558-559 [1st Dept 2018] (citation omitted) (“Neither plaintiff’s request for a reasonable accommodation nor his filing of an internal workers’ compensation claim constitutes protected activities for purposes of the State and City [Human Rights Laws]”).6

*8 Next, plaintiff alleges that he is a plaintiff in the Vulcan lawsuit, an alleged lawsuit against defendants. After he filed this lawsuit, defendants retaliated against him, in the manner as set forth above. Plaintiff does not state when the lawsuit was filed or whether it was brought to oppose defendants’ discriminatory practices. “Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss.” Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, LLC, 155 AD3d 1218, 1219 [3d Dept 2017], affd 31 NY3d 1090, 1091 [2018]. As a result, plaintiff cannot establish the first element in a prima facie case of retaliation under the NYCHRL because he did not allege that he engaged in a protected activity by protesting discriminatory conduct. Breitstein v Michael C. Fina, Co, 156 AD3d 536, 537 [1st Dept 2017] (“In support of his retaliation claim, plaintiff failed to demonstrate that he engaged in a protected activity”).

Accordingly, defendants are granted dismissal of the cause of action grounded in retaliation for failure to state a claim.

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