In a recent case, Stevenson v. New York State Department of Corrections and Community Supervision et al, 2022 WL 179768 (W.D.N.Y. Jan. 20, 2022), the court, inter alia, held that plaintiff sufficiently alleged a retaliatory hostile work environment claim.
From the decision:
Defendants Sticht, Balcer, and Yehl assert that the Complaint lacks any plausible allegations that they took “adverse employment action” against Plaintiffs. (Doc. 34 at 5.) They assert that “adverse employment action” means an action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). A discrete act that has such an effect is indeed the conventional definition of “adverse employment action.” See, e.g., Duplan v. City of N.Y., 888 F.3d 612, 626–27 (2d Cir. 2018) (quoting Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007)) (recognizing that “significantly diminished material responsibilities” can constitute adverse employment action).
But alleging a retaliatory hostile environment is an alternative way to establish that element of a retaliation claim. See Shultz v. Congregation Shearith Israel of City of N.Y., 867 F.3d 298, 309 (2d Cir. 2017) (quoting Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010)) (“In the context of retaliation, ‘adverse employment action’ is broader than it is in the context of discrimination.”); Tromblee v. New York, No. 1:19-CV-0638 (LEK/CFH), 2021 WL 981847, at *10 (N.D.N.Y. Mar. 16, 2021) (citing Dapson, 2019 WL 591692, at *12) (“[A] retaliatory hostile work environment constitutes an adverse action, for purposes of a retaliation claim. Alternatively, and more conventionally, Plaintiff can establish a retaliation claim based on a discrete act by her employer that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” (internal citations and quotations omitted)).9 Here, Plaintiffs have alleged multiple acts by Sticht, Balcer, and Yehl that, when considered together, plausibly indicate a retaliatory hostile environment that constitutes “adverse employment action.”
Continuing, the court held that while the “alleged false accusations would not qualify as the kind of discrete act that constitutes an ‘adverse employment action,'”, this was not controlling, since the court was considering the defendant’s “conduct as a whole to evaluate whether it plausibly amounts to a retaliatory hostile environment.”
Noting the importance of context, the court concluded:
It is true that, standing alone, such conduct would not likely rise to the level of a discrete act that could dissuade a reasonable person from pursuing statutory rights. See Bundschuh v. Inn on the Lake Hudson Hotels, LLC, 914 F. Supp. 2d 395, 406 (W.D.N.Y. 2012). But Baker’s alleged conduct in this case was in the context of a correctional facility with rules about how counseling should be performed, presumably to maintain order and cohesion in a hierarchical system. Balcer’s alleged deviation from those rules was arguably more than just personally offensive; it undermined David’s authority. Indeed, David alleges that his colleagues took notice and “warned” him that Balcer was “targeting” him. (Doc. 36-5 ¶ 181.) Moreover, all of Balcer’s alleged conduct must be considered as a whole.
Based on this, the court held that plaintiff’s allegations of a retaliatory hostile environment created by Balcer are sufficient to survive defendants’ Rule 12(b)(6) motion to dismiss.