In Syeed et al v. Bloomberg L.P., 1:20-cv-7464-GHW, 2022 WL 3447987 (S.D.N.Y. Aug. 17, 2022), the court, inter alia, denied (in part) defendant’s motion to dismiss plaintiff’s claims of retaliation asserted under the New York State and City Human Rights Laws.The court dismissed plaintiff’s claims asserted under Title VII of the Civil Rights Act of 1964 because she filed her claims more than 90 days after receiving the “right to sue” letter from the U.S. Equal Employment Opportunity Commission.
In order to state a claim for retaliation under those statutes, the court explained, a plaintiff must plead that (1) s/he engaged in a protected activity, (2) the employer was aware that they participated in such activity, (3) the employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct.
As to “protected activity,” the court explained:
Ms. Ndugga sufficiently alleges protected activity. “To survive a motion to dismiss, a plaintiff claiming retaliation under the NYCHRL must allege that she engaged in protected activity.” Leroy v. Delta Air Lines, Inc., 36 F.4th 469, 474 (2d Cir. 2022). “A plaintiff engages in protected activity when she ‘oppose[s]’ discrimination.” Cardwell v. Davis Polk & Wardwell LLP, No. 1:19-CV-10256-GHW, 2021 WL 4434935, at *29 (S.D.N.Y. Sept. 23, 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 316 (2d Cir. 2015)). Thus, to plausibly plead an NYCHRL retaliation claim, “the plaintiff must [allege] that she took an action opposing her employer’s discrimination.” Mihalik, 715 F.3d at 112.
Opposing discrimination “can include situations where a person, before the retaliatory conduct occurred, merely ‘made clear her disapproval of the defendant’s discrimination by communicating to him, in substance, that she thought his treatment of the victim was wrong.’ ” Id. (quoting Albunio v. City of N.Y., 922 N.Y.S.2d 244, 947 (2011) (brackets omitted). “NYCHRL claims must be reviewed considering the totality of the circumstances, and the New York Court of Appeals has held that an employee can oppose his employer’s discrimination without expressly mentioning discrimination as the source of his discontent.” Benzinger, 447 F. Supp. 3d at 99, 129 (S.D.N.Y. 2020) (citing Mihalik, 715 F.3d at 113). Still, not all complaints about workplace conduct constitute charges regarding illegal discrimination. See Fattoruso v. Hilton Grand Vacations Co., LLC, 525 F. App’x 26, 28 (2d Cir. 2013) (dismissing the plaintiff’s NYCHRL retaliation claim because the plaintiff’s “belief that he was being treated ‘unfairly’ ” does not “transform his complaints to [the employer] into charges over unlawful discrimination”); Farzan v. Wells Fargo Bank, N.A., No. 12-cv-1217, 2013 WL 6231615, at *29 (S.D.N.Y. Dec. 2, 2013) (granting summary judgment on NYCHRL retaliation claim because the plaintiff did not “ma[ke] clear her disapproval of the defendant’s discrimination by communicating to [the employer], in substance,” the alleged illegal treatment) (quoting Mihalik, 715 F.3d at 112) (brackets omitted), aff’d sub nom Farzan v. Genesis 10, 619 F. App’x 15 (2d Cir. 2015); Mi-Kyung Cho v. Young Bin Café, 42 F. Supp. 3d 495, 507 (S.D.N.Y. 2013) (similar).
Plaintiff sufficiently alleges that she engaged in protected activity. She asserts that, in 2019, she “reported … disparities in treatment to Human Resources,” including that certain benefits were given to her male peers, but not to her, and that her male peers received a higher salary than she did. TAC ¶¶ 66–68. She also alleges that she raised concerns about disparate pay and “holding managers responsible for discriminatory acts” during a July 14, 2020 phone call with the Editorial Management Committee. Id. ¶ 78. “Protected activity may include both formal and informal complaints, including complaints to management.” See Farmer v. Shake Shack Enterprises, LLC, 473 F. Supp. 3d 309, 331 (S.D.N.Y. 2020). Here, Ms. Ndugga’s complaints to management are adequately pleaded to be protected activity. See id. at 331–32 (determining that informal complaints to a supervisor about pregnancy discrimination were protected); Ingrassia v. Health & Hosp. Corp., 130 F. Supp. 3d 709, 724 (E.D.N.Y. 2015) (finding that complaints of age and gender discrimination to a supervisor constituted protected activity).
However, the court held that other alleged conduct did not amount to “protected activity.”
For example, plaintiff’s complaint “that her team had chosen to use an image of a young white woman holding seemingly impoverished Black Ugandan children in a story about marathons around the world” did not qualify, since “a complaint about an editorial decision is not a complaint about an employment practice or a contract-related right” and, here, “the selection of a photo is not related to any of Defendant’s employment practices, and thus, it is not protected activity under the NYSHRL or NYCHRL.” [Cleaned up.]
In addition, the court held that plaintiff sufficiently alleged the remaining elements of the claim. She alleged, for example, that after she reported “disparities in treatment” to HR (in 2019), she was (in the fall of 2019) assigned to cover “scraps” (i.e., journalistic subjects that no one else wanted) while her colleagues were able to choose the topics they wanted to cover, and (in February 2020) denied a salary raise (which was provided to her colleagues) despite positive performance reviews. This conduct, held the court, “would deter an employee from complaining about retaliation.”
|↩1||The court dismissed plaintiff’s claims asserted under Title VII of the Civil Rights Act of 1964 because she filed her claims more than 90 days after receiving the “right to sue” letter from the U.S. Equal Employment Opportunity Commission.|