In Baez v. Anne Fontaine USA, Inc., 2017 U.S. Dist. LEXIS 1630 (S.D.N.Y. Jan. 5, 2017), the Southern District of New York denied a clothing retailer’s motion for summary judgment where a terminated employee alleged that: (1) subordinates had spread rumors about her showing her breasts to the CEO, and (2) she was terminated in retaliation for complaining of the rumors, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).

In late-December 2013, Plaintiff, a female regional sales manager, complained to Defendants’ Controller that three female subordinates were spreading rumors that Plaintiff wore a revealing shirt and no bra to a meeting with the CEO, thereby allowing him to see her breasts. On January 14, 2014, the Controller responded to Plaintiff’s complaint in which he advised her “regarding the content of the rumor/gossip, you either need to be strong and say ‘so be it, I make my own fashion and life choices…’ Or, if the content bothers you, you need to adjust what you are doing to prevent such rumors/gossip, but you can’t prevent people from having their opinions.”

On February 7, 2014, a little more than a month following Plaintiff’s complaint, Defendants terminated Plaintiff’s employment for poor job performance and because Plaintiff was associated with “too much drama.”

Plaintiff sued Defendants alleging that she was subjected to a gender-based hostile work environment and was terminated in retaliation for complaining about the gender-based discrimination.

The Southern District of New York found that Plaintiff’s complaint about the rumor regarding her not wearing a bra and allegedly showing her breasts to the CEO constituted protected activity. The court also found that Defendants listing “drama” as one of the reasons for termination coupled with the “temporal proximity” between Plaintiff’s complaint and her termination was sufficient to create a “genuine dispute of material fact” as to whether Plaintiff’s complaint was the “but-for cause” of termination. While the close temporal proximity between a complaint and a termination, without some other corroborating evidence, is usually not enough to create an issue of material fact, Defendants’ “drama” comment provided the corroborating evidence necessary to call into question Defendants’ alleged reasons for termination. Furthermore, although Defendants had articulated two legitimate business reasons for Plaintiff’s termination, the court nonetheless stated that retaliation need not be the only reason for the adverse employment action, but “only that the adverse action would not have occurred in the absence of the retaliatory motive.”

Moreover, the court denied Defendants’ motion to for summary judgment on Plaintiff’s hostile work environment claim because “[g]iven that the content of the rumor by nature involved [Plaintiff]’s gender, the low standard under the NYCHRL, and the apparent repetition of ‘drama’ over this incident, the Court cannot say that no reasonable jury could find that [Plaintiff] suffered from a hostile work environment.”

If you believe that your employer has retaliated against you for complaining of discrimination and/or harassment, it’s smart to immediately contact a New York City employment attorney to explore all of your rights under the law.

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