In Heron v. Medrite Testing, LLC, No. 21 Civ 09471 (CM), 2022 WL 1214179 (S.D.N.Y. April 25, 2022), the court dismissed plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.
In sum, the essence of a retaliation claim is that the employer (1) took an “adverse action” against the plaintiff (2) because (3) the plaintiff engaged in “protected activity.”
From the decision:
To state a claim for retaliation under Title VII, Plaintiff must first allege that she engaged in a protected activity. In this context, engagement in a protected activity refers to any action taken to protest or oppose statutorily prohibited discrimination. Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 682 (S.D.N.Y. 2012); Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a). Opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection. Davis-Bell, 851 F. Supp. 2d at 682. “The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including complaints to management.” La Grande v. DeCrescente Dist. Co., Inc., 370 Fed. Appx. 206, 212 (2d Cir.2010).
However, a claim for retaliation cannot be maintained where the plaintiff merely thought about opposing a discriminatory practice, and that is all that Plaintiff alleges. The Amended Complaint alleges that Plaintiff (1) asked a supervisor (Manager David) whether complaining about a coworker would result in that coworker’s termination, and (2) “continued to contemplate” how and to whom she would report Rodriguez’ inappropriate behavior.
But on the facts as alleged by her, Plaintiff did not report Rodriguez’ behavior to anyone until after she was fired. Plaintiff’s statement to Manager David does not qualify as protected activity, since by her own admission, she identified neither any particular employee nor any specific inappropriate workplace conduct about which she was complaining. As for the statement she made after being told that she was being fired because of Rodriguez’ complaint about her – she “exclaimed” to the human resources representative that Rodriguez “was touching her face,” and that she “asked if they would fire him” FAC ¶¶ 29-31 – on the facts pleaded it is perfectly apparent that she was not fired because she made that statement. Rather, she made the statement after she had already been told that she was losing her job.
Even viewing the facts most favorably to Plaintiff, the decision to end her employment was made before she uttered a word of complaint about Rodriguez or about his comments and/his. It is well settled that an adverse employment action set in motion before a plaintiff engaged in protected activity “cannot serve as the basis for a retaliation claim.”
The court concluded by citing Second Circuit case law stating that “post-termination insight cannot bear upon whether she engaged in a protected activity before being terminated,” and that here, likewise, “Plaintiff does not allege that she complained to the human resources representative about any purported sexual harassment or sex discrimination that she experienced while working at Medrite until after she was fired.”