Plaintiff engaged in protected activity in declining to meet with supervisor about settling her pending sexual harassment claims (Newton v. LVMH Part I)

The Court of Appeals has reinstated a Title VII lawsuit that alleged that management retaliated against a lawyer for a prominent international firm after she filed a sex discrimination lawsuit and later on declined to discuss settlement with her superior. The Court further holds that plaintiff has sufficiently plead that her protected activity in declining to discuss settlement led to a series of adverse actions, including her termination.

The case is Newton v. LVMH, issued on September 21. This blog post will cover whether plaintiff engaged in protected activity. 

Plaintiff sued LVMH in 2019 in state court and again in December 2023 in federal court, alleging that she was subjected to sexual harassment and retaliation in violation of state, federal, and city law. (The state court action was sent to arbitration and the Title VII action asserted claims that plaintiff accrued after the Ending Forced Arbitration Act (EFAA), which bars arbitration in sexual harassment cases, took effect.

In August 2022, following what plaintiff claimed was a series of retaliatory acts, including exclusion from a company retreat, disdainful looks at a company retreat, being berated over her job performance, and a time-consuming assignment given while she was on vacation, her boss, Pratt, asked if plaintiff would consider settling her claims. Plaintiff declined the invitation. Afterward, from August 2022 through December 2022, she suffered additional adverse actions, including a requirement that she get pre-approval before she agreed to speak at any panels or conferences (plaintiff was a high-profile public speaker about sexual harassment), exclusion from important communications, being ignored at weekly one-on-one meetings with Pratt, exclusion from an employee's farewell dinner, termination in a publicly humiliating manner, and denied her personal effects, a bonus, and a matching charitable contribution.

The Court of Appeals (Bianco, Menashi and Brindisi (D.J.]) holds that plaintiff engaged in protected activity in refusing to meet with her boss to discuss settlement. This is a new holding for the Second Circuit, which reasons:

If initiating a claim constitutes an assertion that the plaintiff was wronged, refusing to end a pursuit of that same claim with a settlement can—depending on the context—constitute a continuation of the same assertion. The relevant question is whether the employer understood or could reasonably have understood that the plaintiff’s refusal was an assertion of her continued opposition to the employer’s unlawful employment practices in violation of Title VII. If so, the refusal is a protected activity.

To trigger the "opposition clause" under Title VII, "such opposition can potentially include not only the filing of a discrimination lawsuit itself, but also other statements made, activities pursued, or positions taken by a plaintiff during the course of that discrimination lawsuit—such as a deposition, settlement discussions, a trial, or an appeal." 

By August 2022, when plaintiff refused to meet with Pratt, she had been vigorously pursuing her legal claims against the company and spoke out before Congress in support of the EFAA. In this context,  "Newton has plausibly alleged that when she refused to meet with Pratt to discuss settlement, he could have reasonably understood that refusal as communicating her continued belief that she had been wronged by [alleged sexual harasser] Doran and LVMH’s discriminatory conduct, and that she wanted acknowledgement and legal redress for those wrongs. That constitutes opposition and, thus, protected activity." The Court states in a footnote that not every refusal to settle constitutes protected activity. "What an employer can reasonably understand such a refusal to communicate depends on the full context of the refusal."

Importantly, the Court further holds it was not fatal that plaintiff did not affirmatively tell Pratt that her refusal to discuss settlement was a means to continue protesting her discrimination. Plaintiff asserts that objection was implicit. The Court reasons:

the Supreme Court has recognized that conduct or communications that reveal opposition, even implicitly, can constitute protected activity. See Crawford v. Metro. Gov't of Nashville, 555 U.S. 271, 277 (2009) (“Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it ‘opposition’ if an employee took a stand against an employer’s discriminatory practices not by ‘instigating’ action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.”); accord Albunio v. City of New York, 16 N.Y.3d 472, 479 (2011) (concluding that opposition under the NYCHRL does not require an explicit statement that the plaintiff is a victim of discrimination).