Thursday, April 11, 2019

Choosing between reporting discrimination and protecting your health may give rise to retaliation claim

This retaliation case alleges that New York City supervisors punished the plaintiff for speaking out against sexual harassment and racial discrimination. The Court says the plaintiff plausibly alleges that supervisors retaliated against her in part by denying her the proper lunch hour to prevent migraine headaches.

The case is Collymore v. City of New York, a summary order issued on April 11. The Court of Appeals sure likes its summary orders, even when it reverses the grant of summary judgment. The Court probably does this because it does not see the case as precedent-setting, which means the district court blew it in dismissing the case. But this case stands for something interesting that deserves attention.

Using the latest case law in this area, the Second Circuit notes the standard governing retaliation claims under Title VII:

Collymore must plausibly allege (1) that she participated “in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action” was taken against her; and (4) there was “a causal connection between the protected activity and the adverse employment action.” Littlejohn v. City of New York, 795 F.3d at 315-16. [A]n adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d at 90. “[N]ormally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). To satisfy the requirement of a causal connection, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega, 801 F.3d at 90. At the pleadings stage, causation may be satisfied by allegations that “each of the adverse actions” defendants took “occurred against a backdrop of continuing antagonism and frustration of [the plaintiff’s] professional ambitions.” Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018).
The Court (Pooler, Chin and Eaton [by designation]) says plaintiff's allegations that supervisors were harsh with her and yelled at her are nonactionable "petty slights, minor annoyances and simple lack of good manners" that cannot give rise to a lawsuit. Of course, this kind of office behavior is in the eye of the beholder. There is yelling and bad manners, and then there is yelling and bad manners. But that analysis stems from Supreme Court authority, and I don't think the Second Circuit wants to litigate your run-of-the-mill verbal abuse from supervisors who probably have personality disorders but who are not crossing the line into exceptionally abusive tantrums that might actually drive someone from the workplace.

But Collymore still has a retaliation case because she was forced to work through her lunch hour, causing her to suffer migraines on a regular basis. As the Second Circuit sees it, these supervisors "forced Collymore to choose between reporting discrimination and maintaining her health. It is therefore plausible that a reasonable worker in Collymore’s position would decline to report discrimination in order to conserve their health. Because Collymore has alleged facts indicating that Defendants-Appellees’ retaliation 'occurred against a backdrop of continuing antagonism and frustration of [her] professional ambitions,' Duplan, 888 F.3d at 626, Collymore has also sufficiently alleged a causal connection between her protected activity and the retaliatory acts."

Remember what I said about summary reversals? This case does not have the full precedential authority of a published opinion, but even summary orders can be cited in briefs. The Second Circuit from time to time cites its own summary orders to support its rulings. This case could have been precedential, as I have not seen a case that says forcing an employee to choose between reporting discrimination and protecting her health may give rise to a retaliation case under Title VII. So if you need a case that stands for that proposition, here it is.

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