NYPD Employee’s Retaliation Claims Dismissed; No “Protected Activity” Where Underlying Complaint Did Not Sufficiently Identify Harassment Based on Age

In Lent v. The City of New York, No. 150403/2020, 2021 WL 2165646,  2021 N.Y. Slip Op. 31805(U), 6 (N.Y. Sup Ct, New York County May 19, 2021), the court, inter alia, dismissed plaintiff’s retaliation claims asserted under the New York State and City Human Rights Laws.

Generally, in order to make out a retaliation claim, a plaintiff must allege and prove that (1) they engaged in protected activity, (2) which caused (3) an adverse employment action.

In this case, the court’s assessment of plaintiff’s retaliation claims focused on the first element:

Here, the complaint only alleges vague and generalized allegations about complaints that he made to his supervisors regarding the treatment he was receiving. Plaintiff fails to identify the dates on which he complained, to whom he complained or the substance of the “numerous” complaints about “his treatment.” Such vague allegations do not establish that the plaintiff was engaged in protected activity subject to a retaliation claim under the NYSHRL or NYCHRL. Nowhere in the complaint does the plaintiff ever allege that he made a complaint regarding harassment or treatment he received due to his age. For example, plaintiff alleges that on an unspecified date, he complained to his union delegate, Lieutenant Evan Minoghue, about the “constant harassment and the treatment he was receiving from the NYPD, his employer”. Plaintiff alleges his union delegate spoke with MacDonald who then opened another investigation into plaintiff alleging that he made threatening remarks to her through the union delegate. Plaintiff then alleges he complained directly to MacDonald about the “treatment he was receiving” and complained to “other supervisory personnel throughout the NYPD” and about “the treatment he was receiving from [] MacDonald” and that “she was trying to force him to retire”. He complains that MacDonald was “trying to force him to retire,” but does not allege she made any comments about his age or that he was too old to perform the duties of a police officer. Plaintiff’s alleged complaints about the treatment he was receiving do not indicate that he ever complained to the defendants that he was being discriminated against because of his age. [Citations omitted.]

Based on this, the court concluded that “absent any allegation that the receivers of the plaintiffs complaints would have reasonably understood him to have been complaining about unlawful discrimination or engaged in any protected activity, the plaintiff’s claims for retaliation must fail.”

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