Presenting a Viable Retaliation Claim in New York, Even if Your Underlying Discrimination or Harassment Claim Doesn’t Succeed

Retaliation is a very real problem for many workers. These workers reasonably fear that, if they speak up against discrimination or sexual harassment — either what they’ve endured or that targeted someone else, they run the risk of professional harm. No worker should fear losing their job because they spoke out in opposition to harassment or discrimination. If that has happened to you, be aware that retaliation is an illegal practice and you have a right to pursue legal action. A knowledgeable New York City employment retaliation lawyer can show you how.

A hospital worker upstate recently overcame his employer’s motion to dismiss his retaliation claim, making for a good example of what it takes to present a viable retaliation case.

Here were the facts as described in the court opinion: M.Z. started working at the hospital’s phlebotomy lab in September 2018. M.Z.’s employment contract ended at the end of the year but the employer allegedly told him that it would “automatically” be renewed.

In mid-December, M.Z. filed an internal sexual harassment complaint. In it, he alleged that two female coworkers rubbed their breasts on him and rubbed his buttocks with their hands. The employer investigated, allegedly could not corroborate M.Z.’s story, and decided his allegations were not credible.

Just ten days after the man filed that sexual harassment complaint, the employer notified him that it would be renewing his employment contract, effectively terminating his employment one week hence.

The employee launched a federal lawsuit against the hospital alleging a hostile work environment and retaliation. The hostile work environment claim failed, not because M.Z. didn’t have evidence of harassment, but because he didn’t have proof that the hospital engaged in any negligent or unreasonable actions in response to his complaint, meaning that M.Z. couldn’t impute liability for the harassment to his employer.

The employee’s retaliation claim was more successful. This, once again, is a reminder that you do not have to have a winning underlying case of discrimination or harassment to have a potentially winning case of retaliation.

The 3 Parts of Retaliation: Protected Activity, Employer’s Explanation, and Pretext

A successful retaliation claim will unfold in three parts. First, you have to demonstrate that you engaged in protected activity and that you suffered an adverse employment outcome (such as termination, demotion, suspension, reduction of pay, reduction of hours, etc.) While protected activities definitely include filing a formal complaint with your employer (as M.Z. did,), they’re not limited merely to that. Other examples of protected activity include filing a lawsuit or EEO action, verbally complaining to your supervisor or another managerial employee, answering questions as part of your employer’s investigation into someone else’s discrimination/harassment allegation, or participating in a coworker’s harassment/discrimination case.

Once you’ve established protected activity and adverse action, your employer has to show that it had a legitimate reason for taking the action that it did. If your employer clears that hurdle, then you have to demonstrate that your employer’s stated reasons for action were mere pretexts for the true reason: retaliatory motive.

The Second Circuit Court of Appeals has laid many of the ways that a retaliation plaintiff in federal court can meet this “pretext” requirement. When you provide evidence of “weaknesses, implausibilities, inconsistencies, or contradictions” in your employer’s explanation for its action, that is potentially proof of pretext.

Additionally, something called “temporal proximity” also can be powerful proof that your employer engaged in retaliation. Temporal proximity means closeness in terms of the time between your protected activity and your employer’s adverse action. So, for example, if you filed a discrimination complaint with HR on Wednesday morning and your employer fired you on Friday afternoon, that is a high degree of temporal proximity and potentially very strong proof of retaliatory motive.

In M.Z.’s case, he had proof that his employer decided not to renew his contract within 10 days (or less) after he filed his harassment complaint. That temporal proximity alone wasn’t enough, but M.Z. also had evidence of inconsistencies in the employer’s story. The employer listed several reasons for non-renewing the man’s employment (such as behavioral issues, requesting excessive time off, etc.) M.Z. alleged that he did not make excessive leave requests and, as the court observed, the employer did “not produced any records or email correspondences regarding Plaintiff’s alleged behavioral issues, or any complaints made against him by any other staff members,” indicating potential inconsistencies in the employer’s stated basis for action.

The law has strong protections for workers who “blow the whistle” on discrimination or sexual harassment and suffer negative consequences, whether they were the target of the discrimination/harassment or someone else was. If you’ve endured that sort of retaliation at work, get in touch with the experienced New York employment retaliation attorneys at Phillips & Associates. Our attorneys have extensive experience helping people like you to protect your rights. To find out more, contact us online or at (866) 229-9441 to set up a free and confidential consultation today.

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