In Thomas v. The City of New York, No. 150877/2021, 2022 WL 4552068 (N.Y. Sup Ct, New York County Sep. 29, 2022), the court dismissed plaintiff’s retaliation claim asserted under the New York City Human Rights Law.
Generally, in order to make out a retaliation claim, a plaintiff must sufficiently allege three elements: (1) “protected activity”; (2) and “adverse employment action”; and (3) a causal connection between (1) and (2), i.e., that the adverse action occurred “because of” the protected activity.
In this case, plaintiff’s claim fails; although they sufficiently alleged the first two elements, they failed to sufficiently allege the third:
As a threshold matter, plaintiff’s Amended Complaint has cured the deficiencies outlined in Judge Ramseur’s prior decision. Specifically, its allegations that plaintiff complained to Captain Mullaney and her union delegate about the Twitter post invoking racist stereotypes in its description of the members of Sector Charlie–both of whom were Black–are sufficient to allege that plaintiff engaged in protected activity (See La Porta v Alacra, Inc., 142 AD3d 851, 853 [1st Dept 2016] [plaintiff’s complaint about offensive Facebook message constituted protected activity]; see also Fletcher v Dakota, Inc., 99 AD3d 43, 52 [1st Dept 2012] [plaintiff’s objection to cooperative board member’s anti-Semitic statements constituted protected activity]).
In addition, the Amended Complaint’s allegations that Captain Mullaney subsequently met with Fagan and that plaintiff’s union delegate addressed the NCO team regarding the tweet alleges facts that could, if proven, establish that defendants were aware of this protected activity (See Anonymous v Anonymous, 165 AD3d 19, 31 [1st Dept 2018] [plaintiff sufficiently alleged that defendants had knowledge of his protected activity based upon repeated complaints about noncompliance with the tax laws to tax department as well as to various superiors]).
Plaintiff has also sufficiently alleged that defendants engaged in conduct that disadvantaged her, i.e., engaged in behavior that was reasonably likely to deter a person from engaging in protected activity through her allegations that: (i) she was suddenly assigned overtime on January 31, 2020 and February 3, 2020, despite her seniority, requiring her to scramble for childcare; (ii) her shift was changed to evening hours in September 2020, against her wishes; (iii) she was assigned to patrol duty in lieu of her normal administrative duties in October 2020; and (iv) she was reassigned from the NCO unit in November 2020 (See e.g., Pelepelin v City of New York, 189 AD3d 450, 452 [1st Dept 2020] [allegations of plaintiff’s reassignment to guard duty sufficiently allege retaliatory act under NYCHRL]).
Ultimately, however, plaintiff’s retaliation claims must be dismissed based on her failure to allege a causal connection between her protected activity and the retaliatory acts in question. A causal connection may be established either indirectly, by showing that the adverse closely followed in time the protected activity, or directly, through evidence of retaliatory animus, such as verbal or written remarks. Here, the first alleged actions that allegedly disadvantaged plaintiff occurred approximately one year after plaintiff’s January 2019 complaint about the tweet. These events are not sufficiently close in time to establish a causal nexus based solely on temporal proximity (See Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 967 [1st Dept 2009] [four-month gap between protected activity and retaliatory act too distant to establish causal connection]; Bantamoi v St. Barnabas Hosp., 146 AD3d 420, 420 [1st Dept 2017] [five-month gap too distant to establish causal connection]). Plaintiff has not alleged any other facts indicating retaliatory animus.
[Cleaned up.]
Based on this, the court held that plaintiff’s retaliation claims must be dismissed.