Retaliation Claim Survives, In Part, Against NY Dept. of Education

In Richards v. The Department of Education of the City of New York et al, 21-cv-338, 2022 WL 329226 (S.D.N.Y. Feb. 2, 2022), the court, inter alia, held that plaintiff plausibly alleged retaliation.

The court did, however, dismiss several of plaintiff’s other claims, such as for race- and religion-based hostile work environment. Accordingly, this case teaches that a retaliation claim may survive, even though the underlying allegations of discrimination are themselves insufficient to make out a separate, standalone claim.

As to plaintiff’s claims under federal and state law (i.e., Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law), the court explained:

However, the remaining allegations—that, on or about June 20, 2019, the day after Plaintiff’s internal complaint, Farnham scheduled a disciplinary meeting alleging baseless claims and then issued a lengthy disciplinary letter-to-file and that, on or about August 19, 2019, about a month after Plaintiff’s external complaint, Plaintiff was disciplined for a litany of items including starting an outside complaint—occurred “closely in time” to protected activity. See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Though [the Second Circuit] has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, we have previously held that five months is not too long to find the causal relationship.”). That Plaintiff was allegedly disciplined for starting an outside complaint also speaks to direct evidence of retaliatory motive. Thus, these allegations raise an inference of causation sufficient at the pleading stage.

The June 20, 2019 disciplinary meeting and letter and the August 19, 2019 discipline also rise to the level of an adverse employment action in the retaliation context. In the context of a retaliation claim, “an adverse employment action is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega, 801 F.3d at 90 (quoting White, 548 U.S. at 57). “This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination ….” Id. As alleged here, the discipline and the disciplinary meeting and letter alleging baseless charges could deter a reasonable worker from complaining about discrimination. See id. at 92 (“[O]f course, a poor performance evaluation could very well deter a reasonable worker from complaining.”); Ahmad, 2021 WL 1225875, at *26 (“A slew of falsified disciplinary charges could certainly plausibly deter [an individual] from reporting discrimination.”); Krinsky v. Abrams, 2007 WL 1541369, at *11 (E.D.N.Y. May 25, 2007) (noting, on summary judgment that “a negative evaluation, or threat of a negative evaluation, while not an adverse employment action that affects terms and conditions of employment, might dissuade a reasonable worker from making or supporting a charge of discrimination” (internal quotation marks omitted and alteration adopted)), aff’d, 305 F. App’x 784 (2d Cir. 2009). Moreover, “[b]ecause the burden for establishing a prima facie case of retaliation is ‘de minimis,’ ” the Court concludes that Plaintiff’s allegations are sufficient to survive a motion to dismiss.

And, since plaintiff’s claims (based on the subset of facts, namely, the June 20, 2019 disciplinary meeting and August 19, 2019 discipline) survived under federal and state law, they necessarily survived under the comparatively broader New York City Human Rights Law.

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