ADEA retaliation claim against Board of Education is reinstated

This ruling from the Second Circuit reinstates a retaliation claim under the Age Discrimination in Employment Act against the City of New York. Finding the complaint plausibly asserts a retaliation  case, the Court of Appeals issues a summary order that rules in favor of the plaintiff and sends this case back for the joyous discovery that litigators love, i.e., interminable depositions, discovery disputes, non-party subpoenas and motion practice. Along the way, the Second Circuit reiterates some important rules governing motions to dismiss retaliation cases.

The case is Massaro v. Board of Education of the City of New York, issued on May 21. Plaintiff brought a lawsuit in 2011 alleging age discrimination. The state court dismissed the case in 2014. While that case was pending, in 2012, plaintiff began to suffer the following hassles, resulting in this lawsuit:

● her classes were overcrowded;

● she was assigned a disproportionately high number of students with serious behavioral and developmental problems;

● she was assigned to classrooms with no temperature control, which were excessively cold in winter and extremely hot in summer;

● beginning in 2014, she was assigned a teaching schedule of four consecutive one‐hour classes, leaving her no time between periods to prepare for class or use the bathroom;

● two infractions were recorded in Massaro’s file that were not attributable to her, and she was improperly deemed to have been “excessively absent” based on absences she incurred while she was serving on grand jury duty.

Massaro named several teachers who were not subjected to each of the negative conditions listed above, along with their ages, which ranged from late 20s to about 50.

The City says plaintiff did not engage in "protected activity" under the ADEA because the prior lawsuit was filed in December 2011 and the bad stuff happened in 2013. But the Second Circuit "has previously measured the occurrence of a protected activity from mid‐litigation events, such as notifications to appear for a deposition or as a witness." The Circuit (Newman, Jacobs and Droney) cites Richardson v. New York DOCS, 180 F.3d 426, 446-47 (2d Cir. 1999), for that proposition, among other cases. This reasoning tightens up the timeline for plaintiff's retaliation case, always a good thing for plaintiffs who are fighting off a motion to dismiss.

As for whether the bad stuff is enough for a retaliation case, the Circuit again rules in plaintiff's favor, stating, Massaro alleged several actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The Court adds, "Although some of the conditions she complains of, considered individually, might reasonably be tolerated by many teachers, the allegation of their combination, alleged to have been imposed only on her, suffices to survive a motion to dismiss." This is an important principle in retaliation law: a few relatively minor acts of retaliation may add up to a real retaliation case.

Things get tricky on the causation element . Plaintiff's EEOC charge says the earliest date of the discrimination was August 2013. The 2011 state court lawsuit that plaintiff filed (which allegedly triggered the retaliation) was dismissed in May 2013. The bad stuff happened to plaintiff starting in August 2013. So we have a a three-month gap between protected activity and the adverse actions. The City claims that time-frame is too long to infer retaliation. That argument sometimes works. Not here. The Second Circuit employs a common-sense model when the plaintiff can show that management retaliated at the first available opportunity. In teacher discrimination cases, the Court of Appeals notes, the plaintiff gets some leeway in this regard.

In the context of a school calendar, judicial “experience and common sense,” Irrera v. Humpherys, 859 F.3d 196, 198 (2d Cir. 2017), permit the Court to recognize that May to August is summer break. In that context, it is plausible that August 2013, the start of a new semester, was the school personnel’s earliest opportunity to retaliate against Massaro following the dismissal of her 2011 lawsuit.