Retaliation Claim, Based on Sexual Harassment Complaint, Sufficiently Alleged Under the NYC Human Rights Law

In Donnelly v. The New York City and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America et al, 152197/2019, 2021 WL 4494816 (N.Y. Sup Ct, New York County Oct. 01, 2021), the court held that plaintiff sufficiently alleged retaliation under the New York City Human Rights Law.

In sum, plaintiff alleges that he was fired in retaliation for complaining and voicing objections about alleged sexual harassment of female employees.

Here, it was undisputed that plaintiff suffered an adverse action (termination); at issue is whether plaintiff sufficiently pleads that he engaged in protected activity and that his protected activity caused his termination.

In determining that he had, the court explained:

Protected activity under NYCHRL are actions taken to oppose or complain about unlawful discrimination. (Forrest, 3 NY3d at 313; Brook v Overseas Media, Inc., 69 AD3d 444, 445 [1st Dept 2010]). Such action need not be explicit (Albunio, 16 NY3d at 479 [jury could determine that plaintiff opposed discrimination although “she did not say in so many words that (candidate) was a discrimination victim”]) or satisfy any formality (Spiegler v Israel Discount Bank of New York, 2003 WL 21488040 [S D N Y 2003]; see Fletcher v Dakota, Inc., 99 AD3d 43, 52 [plaintiff’s comment to board member complaining that discussion about applicants’ ethnicity and religion inappropriate was protected activity]). Generalized, ambiguous or isolated complaints which do not identify discrimination properly do not constitute protected activity. (Breitstein v Michael C. Fina Co., 156 AD3d 536, 537 [1st Dept 2017] [isolated complaint about defendant’s general conduct not protected activity]; Gonzalez v EVG, Inc. 123 AD3d 486, 487 [1st Dept 2014] [complaint about general harassment not protected activity absent mention that she was discriminated against based on sex]).

In light of the liberal pleading standards of the NYCHRL, plaintiff’s allegations that he raised McInnis’s alleged sexual harassment with his supervisor and continued to discuss the matter with union members are sufficient to allege that he was engaging in protected activity.

While a causal connection between a protected activity and a negative employment outcome may be reasonably inferred from the passing of a short period of time between the activity and the negative outcome, the absence of temporal proximity is not fatal to a retaliation claim where other facts support causation. (Harrington v City of New York, 157 AD3d 582, 586 [1st Dept 2018]; Fletcher, 99 AD3d at 53). And, although there is no bright line rule, absent additional facts, a gap of five months or greater has been held to be too long to establish causation on the ground of temporal proximity alone. (Matter of Parris v New York City Dept. of Educ., 111 AD3d 528 [1st Dept 2013], lv denied 23 NY3d 903 [2014]). The relevant period is measured not from when the protected activity occurred, but from when the employer became aware of it. (Dotson v J.C. Penney Co., Inc., 159 AD3d 1512, 1514 [4th Dept 2018]; Matter of Parris, 111 AD3d at 529).

Here, while the first instance of protected activity occurred eight months before plaintiff was fired, subsequent activities, including the April meeting, occurred within a month of his termination. Although it is unknown when movants first became aware of his activities, in light of the liberal pleading standards of the NYCHRL, it is reasonable to afford plaintiff the favorable inference of temporal proximity.

While plaintiff successfully states a cause of action for retaliation under NYCHRL against District Council and the alleged harasser, McInnis, it held that plaintiff failed to state a cause of action for “aiding and abetting” retaliation claim (under N.Y.C. Admin. Code § 8-107(6)) against individual defendant Geiger, who – while he approved plaintiff’s termination – is not alleged to have been aware of plaintiff’s protected activities.

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