In Ilana Gamza-Machado de Souza v. Planned Parenthood Federation of America, Inc. et al, 21 Civ. 5553 (LGS), 2022 WL 2047580 (S.D.N.Y. June 7, 2022), the court held that plaintiff, a Jewish woman, plausibly alleged retaliation claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
The court summarized the facts as follows:
Plaintiff, who is a Jewish woman, was an employee of Planned Parenthood. While at Planned Parenthood, she had been told by her supervisor that she “does not want an old Jewish woman running a multicultural department” and by another director-level employee that “there were too many white Jewish Chief Executive Officers in positions of power, and it [was] time to get them out.” Around June 22, 2020, Plaintiff asked Planned Parenthood’s Employee Resource Group (“ERG”) Coordinator if there was a Jewish ERG and if she could pursue creating one. Three days later, the ERG Coordinator emailed Plaintiff that she was “good to go,” and Plaintiff solicited more than twenty employees for the ERG. After Plaintiff found out that the ERG Coordinator had left the company, Plaintiff emailed Defendant Walker — the Vice President of Diversity, Equity, and Inclusion at Planned Parenthood — to discuss next steps. Walker is an employee with supervisory authority to hire and fire Defendant. Around July 31, 2020, Walker emailed Plaintiff that the ERG had not been approved and that he needed to make sure that “the identity markers [were] critical to the business.”
On August 11, 2020, Plaintiff and Walker had a video conference, during which Walker expressed concerns about having a Jewish ERG because he did not want a religious ERG and that a Jewish ERG was not correlated closely enough with Planned Parenthood’s organizational goals. Plaintiff followed up with Walker after this meeting, emphasizing that Jewish people are a race/ethnic group and not just a religious group, and submitted an updated charter for the ERG. Walker still expressed concerns. Around September 3, 2020, Plaintiff responded that the other ERG’s mission statements were similar to the proposed charter for the Jewish ERG, and that they did not seem to align with Planned Parenthood’s organizational goals.
*2 Around September 8, 2020, Squires — who was working with Plaintiff for the creation of the ERG — spoke to Walker. During the conversation, Walker told Squires that Orthodox Jewish women were “birthing factories” and that the role of a Jewish ERG should be about educating Orthodox Jewish women about birth control.
Around October 20, 2020, Plaintiff emailed Walker an updated proposed charter in addition to expressing her concerns about “antisemitism/micro-ag[g]ressions towards Jewish folks at PPFA.” Walker responded the next day explaining he needed to make sure a Jewish ERG “meets with the business case.”
Around October 28, 2020, Plaintiff reiterated her concerns about “microaggressions towards the Jewish folks at Planned Parenthood.” Walker responded that he wanted “to make sure the charter is set up air tight.” Walker advised that part of the reason the Jewish ERG was not getting approved was because Plaintiff had not picked out an advisory board, even though Walker previously had told her not to worry about that step. On November 30, 2020, Plaintiff was terminated.
As to the “black letter” procedural and substantive law, the court explained:
Federal law forbids discrimination against an employee for having “opposed any practice made an unlawful employment practice by [42 U.S.C. § 2000e]” or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [42 U.S.C. § 2000e].” 42 U.S.C. § 2000e-3(a). Similar claims for retaliation can be brought under the NYSHRL1 and NYCHRL.
To survive a motion to dismiss a Title VII or NYSHRL retaliation claim, “the plaintiff must plausibly allege that: (1) defendants discriminated — or took an adverse employment action — against [her], (2) because [s]he has opposed any unlawful employment practice.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018); accord Corradino v. Liquidnet Holdings Inc., No. 19 Civ. 10434, 2021 WL 2853362, at *6 (S.D.N.Y. July 8, 2021). The requirements for pleading a retaliation claim are sometimes stated as four elements: (1) plaintiff’s participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015); Buchanan v. City of New York, 556 F. Supp. 3d 346, 365 (S.D.N.Y. Aug. 23, 2021). These elements are analyzed the same under Title VII and the NYSHRL. See Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843-44 (2d Cir. 2013); Buchanan, 556 F. Supp. 3d at 365.
The NYCHRL is intended to be more lenient than its federal and state counterparts. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). To satisfy the “protected activity” element under the NYCHRL, “the plaintiff must show that she took an action opposing her employer’s discrimination.” Id. at 112; accord Brown v. Montefiore Med. Ctr., No. 19 Civ. 11474, 2021 WL 1163797, at *11 (S.D.N.Y. Mar. 25, 2021). To satisfy the “adverse employment action” element under the NYCHRL, a plaintiff need not allege a “materially adverse change in the terms and conditions of employment,” only a retaliatory act that is “likely to deter a person from engaging in protected activity.” N.Y.C. Admin. Code § 8-107(7); see also Mihalik, 715 F.3d at 112. To satisfy the causation element under the NYCHRL, a plaintiff must “plead facts giving rise to an inference of a causal connection between the plaintiff’s protected activity and an adverse employment action.” Brightman v. Physician Affiliate Grp. of N.Y., P.C., No. 20 Civ. 4290, 2021 WL 1999466, at *10 (S.D.N.Y. May 19, 2021); see also Hamburg v. N.Y. Univ. Sch. of Med., 155 62 N.Y.S.3d 26, 32 (1st Dep’t 2017) (explaining that NYCHRL must be analyzed under the “mixed motive” analysis); Sanderson-Burgess v. City of New York, 102 N.Y.S.3d 678, 678 (2d Dep’t 2019) (stating the same about NYCHRL analysis).
Because the NYCHRL is less demanding of a claimant, it “requires an independent analysis.” Mihalik, 715 F.3d at 109. Here, where the Complaint is sufficient to state a retaliation claim under federal and state law, it necessarily also states a claim under the NYCHRL. See, e.g., Deveaux v. Skechers USA, Inc., No. 19 Civ. 9734, 2020 WL 1812741, at *7 (S.D.N.Y. Apr. 9, 2020) (holding that because plaintiff’s retaliation claims met the Title VII standard and therefore also satisfied the NYCHRL standard).
Applying the law to the facts, the court held – after delving a bit deeper into what constitutes “protected activity” – that plaintiff sufficiently alleged this element:
The Complaint plausibly alleges at least two instances of protected activity: the two emails to Walker, the Vice President of Diversity, Equity, and Inclusion, on October 20, 2020, and on October 28, 2020, reporting microaggressions towards Jewish people at Planned Parenthood. The Complaint alleges that Walker held supervisory authority over Plaintiff. These emails raising her concerns of “antisemitism/micro-ag[g]ressions towards Jewish folks at PPFA” and “microaggressions toward the Jewish folks at Planned Parenthood” constituted Plaintiff’s “informal protest” as well as advocacy for the creation of a Jewish ERG to address that discrimination.
Defendants’ arguments that Plaintiff did not engage in protected activity are unpersuasive. That her complaints about “microaggressions” toward Jewish people were made in the context of advocating for a Jewish ERG is not disqualifying. She apparently advocated for the ERG to remedy what she believed to be discriminatory conduct toward Jewish people at Planned Parenthood. The law does not require that the complaint be “independent” of advocacy to help address the discrimination, nor that the complaint be “filed” as Defendant implies. Similarly, and contrary to Defendants’ suggestions, the law does not require that the conduct that is the subject of the complaint have been directed toward the plaintiff or have been actually unlawful. All that is required is Plaintiff’s “good faith, reasonable” belief that the employer was engaged in an unlawful and discriminatory employment practice. See Manoharan, 842 F.2d at 593-94. Construing the Complaint in favor of Plaintiff as required, it alleges sufficient facts to allege that she participated in a protected activity.
It also held that plaintiff sufficiently alleged that she was subject to an “adverse action” (termination).
Plaintiff also sufficiently alleged “but for” causation:
The Complaint plausibly alleges facts showing “but-for” causation. There is a close temporal connection of approximately one month between Plaintiff’s protected activity and the adverse employment action. Plaintiff sent emails complaining of microaggressions against Jewish people to Walker on October 20 and 28, 2020. Her employment was terminated on November 30, 2020.
Defendants’ argument that this temporal proximity should be calculated from Plaintiff’s initial discussions about creating the ERG is unpersuasive. Rather, the reverse is true both as a matter of precedent and common sense; even if a plaintiff’s first complaint may not have prompted retaliation, the last complaint or cumulative effect of multiple complaints may well have. See, e.g., Ulrich v. Soft Drink, Brewery Workers & Delivery Emps., Indus. Emps., Warehousemen, Helpers & Miscellaneous Workers, Greater N.Y. & Vicinity, Loc. Union No. 812, 425 F. Supp. 3d 234, 241 (S.D.N.Y. 2019) (utilizing the “latest possible moment in which [plaintiff] engaged in protected activity” to calculate causal connection for a retaliation claim); Schaper v. Bronx Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 392-93 (S.D.N.Y. Sept. 30, 2019) (calculating temporal proximity based on the employee’s “last informal complaint and the commencement of the disciplinary proceedings”). The Complaint sufficiently and plausibly pleads the causation element of a retaliation claim under Title VII, the NYSHRL and the NYCHRL.
Finally, the court denied (without prejudice to renewal after development of the factual record) defendants’ motion to strike plaintiff’s demand for punitive damages, noting that “punitive damages are not a separate cause of action and, thus, courts generally find motions to strike punitive damages at the motion to dismiss stage to be premature.”