Opinion
03 Civ. 5676 (LAK)(JCF)
May 11, 2004
REPORT ANDRECOMMENDATION
The plaintiff in this case, Beate Walter, commenced this employment discrimination action against Westdeutscher Rundfunk, ARD German Radio New York ("Westdeutscher") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law (the "NYCHRL"), N.Y. City Admin. Code § 8-101 et seq. She claims that Westdeutscher, her former employer, discriminated against her and discharged her on the basis of her sex and disability and in retaliation for complaints she had previously filed. Westdeutscher has moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, claiming that the plaintiff has failed to state a claim upon which relief can be granted. For the reasons that follow, I recommend that the defendant's motion be granted in part and denied in part.
Background
Ms. Walter was employed by Westdeutscher as a radio producer from September 1999 through February 15, 2002. (Complaint ("Compl."), ¶¶ 7, 35). Ms. Walter is a German citizen but was living in New York during the time she was employed by Westdeutscher. (Compl., ¶ 4). During the course of her employment there, Thomas Nehls was Ms. Walter's immediate supervisor. (Compl., ¶ 9). According to Ms. Walter, Mr. Nehls began bringing her gifts during the spring of 2000. (Compl., ¶ 13). In April of that year, Mr. Nehls invited Ms. Walter to join him at an affair at the United Nations, but Ms. Walter declined. Ms. Walter claims that after she refused his invitation, Mr. Nehls began criticizing her and giving her "new orders, which were sometimes conflicting or incomprehensible." (Compl., ¶¶ 14, 15). According to Ms. Walter, Mr. Nehls began "harassing" her about her visa, claiming that it was expired. When she presented him with a new visa, he told her that it "looked fake and [she should] get a better one." (Compl., ¶ 16). Because of Mr. Nehls' conduct, Ms. Walter informed him that she would be returning to Germany in September 2000, at which point Mr. Nehls "begged her to stay asserting that he could not do without her and he needed her." (Compl., ¶ 17). When Ms. Walter agreed to stay, Mr. Nehls offered her a contract as a full time producer. (Compl., ¶ 17). Ms. Walter alleges that on October 30, 2000, Mr. Nehls terminated her for having an expired visa, giving her six weeks notice as was required by her contract. (Compl., ¶ 18). Although Mr. Nehls cited the missing visa, Ms. Walter also claims that he told her that he had fired her because she had complained about him. (Compl., ¶ 18). Ms. Walter contends that after she told Mr. Nehls' editor-in-chief, Helga Kirchner, and a supervisor, Joerg Kaminski, about her termination, she later overheard Mr. Nehls "slandering her." (Compl., ¶¶ 19, 20). Mr. Nehls subsequently convened a meeting with Ms. Walter, Westdeutscher correspondent Carsten Vick, and another producer, at which he "berated Ms. Walter for not adhering to the proper [Westdeutscher] hierarchies when filing a complaint." (Compl., ¶ 21). Ms. Walter alleges that notwithstanding this criticsm, Mr. Nehls also told her that her "complaints would end up in his waste paper basket." (Compl., ¶ 21). On December 15, 2000, the day Ms. Walter believed was her final day of work, Mr. Nehls told her that her termination was a joke, and that she was expected to be at work the following Monday. (Compl, ¶ 22).
During the summer of 2001, Ms. Walter claims that she went into Mr. Nehls' office to have some papers signed and found him "rubbing his genitals" while talking on the phone. According to Ms. Walter, he continued to rub himself while she was standing in front of him. (Compl., ¶ 23). The plaintiff contends that by November 2001, her health began to suffer due to "Mr. Nehls' daily harassment." (Compl., ¶ 24). She claims that on November 27, 2001, following an incident of harassment by Mr. Nehls, she developed chest pains, accompanied by pain and numbness in her left shoulder, arm, and leg. (Compl., ¶ 26). This condition returned on November 30, 2001, and Ms. Walter was admitted to the emergency room at Beth Israel Medical Center. Both times, she was told by doctors that the condition was stress related. (Compl., ¶¶ 27, 28). According to Ms. Walter, Mr. Nehls made "negative references" about her various health problems and indicated that they could result in the loss of her job. (Compl., ¶ 25).
On December 27, 2001, Mr. Nehls terminated Ms. Walter. He told her that the reason for her termination was "the alleged contempt for mankind and coldness that [she] emanates at the office," and he informed her that fellow employees refused to work with her. (Compl., ¶¶ 30, 31). He did, however, offer her an opportunity to resign, rather than be terminated. (Compl., ¶ 31). On December 28, Mr. Nehls gave Ms. Walter a written notice of termination. (Compl., ¶ 32). On January 24, 2002, Ms. Walter saw a neurologist regarding "persistent pins and needles sensation and reoccurring numbness." Her condition was found to be related to stress and anxiety, and Ms. Walter was placed on medication (Compl., ¶¶ 33, 34). The plaintiff's last day of work was February 15, 2002. She contends that following her termination, Mr. Nehls refused to sign references for her to confirm her employment. (Compl., ¶ 35).
On July 26, 2002, Ms. Walter filed a formal charge of employment discrimination with the Equal Employment Opportunity Commission, and on May 29, 2003, she received a right-to-sue letter entitling her to commence a civil action under Title VII. (Compl., ¶ 6., Exh. A; Memorandum of Law in Support of Pre-Answer Motion Pursuant to Fed.R.Civ.P. 12(b)(6) to Dismiss Plaintiff's Complaint ("Def. Memo.") at 2-3).
Discussion
A. Standard for a Motion to Dismiss
In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993);Freedom Holdings, Inc. v. Spitzer, 363 F.3d 149, 151 (2d Cir. 2004);Hernandez v. Coucrhlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff alleges civil rights violations. Leather v. Ten Eyck, 180 F.3d 420, 423 (2d Cir. 1999); Hernandez, 18 F.3d at 136. A complaint need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)). A motion to dismiss may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. at 514 (internal quotation marks and citation omitted).
B. Gender Claims
Ms. Walter alleges that Westdeutscher violated Title VII and the NYSHRL when it "engaged in an unlawful employment practice" by "terminating and otherwise discriminating against Plaintiff because of her sex (sexual harassment)." (Compl., ¶¶ 37, 41). She further claims that the defendant discriminated against her because of her gender in violation of the NYCHRL. (Compl., ¶ 47).
1. Gender Discrimination
Title VII prohibits discriminatory employment practices on the basis of gender and other impermissible classifications. See 42 U.S.C. § 2000e-2(a)(1). To state a prima facie case of gender discrimination under Title VII, a plaintiff must show (1) that she was a member of a protected group; (2) that she was qualified for the job in question; (3) that the defendant took an adverse employment action against her; and (4) that the circumstances support an inference of discrimination on the basis of her membership in that protected class.See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (footnote omitted); Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir. 2000). "A plaintiff may raise such an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group." Graham, 230 F.3d at 39 (citations omitted).
The same prerequisites for establishing a prima facie case apply to discrimination claims brought under the NYSHRL and the NYCHRL. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) ("consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims").
While a plaintiff need not plead every element of a prima facie case in order to survive a motion to dismiss, she must provide fair notice to the defendant of her claim and allege some facts on which "relief could be granted . . . consistent with the allegations." Swierkiewicz, 534 U.S. at 514 (citation omitted); Timothy v. Our Lady of Mercy Medical Center, No. 03 Civ. 3556, 2004 WL 503760 at *5 (S.D.N.Y. March 12, 2004). Here, Ms. Walter has not given the defendant "fair notice" of what her gender discrimination claim entails nor has she alleged even minimal facts upon which relief could be granted.
Ms. Walter makes no allegations that her termination was based on gender, apart from the quid pro quo sexual harassment claim which will be addressed below. She has not claimed that Mr. Nehls treated female employees differently from male employees, nor has she claimed that benefits were denied to her because she was female. Rather, Ms. Walter has described several instances where she and Mr. Nehls had conflicts and asserts that as a result of these conflicts, she was terminated. The only allegation Ms. Walter makes that in any way relates to Mr. Nehls' treatment of women in general is her assertion that on "numerous occasions, Mr. Nehls introduced Ms. Walter and her colleague, a female producer, as his secretaries." (Compl., ¶ 12). The remainder of the facts Ms. Walter describes involve altercations she had with Mr. Nehls and their mercurial working relationship. While Title VII prohibits discrimination, "it is not a shield against harsh treatment at the work place. Personal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a sex discrimination case by accusation." McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986) (footnotes, quotation marks, and citations omitted); accord Cooperman v. Solil Management, Inc., No. 98 Civ. 8099, 2000 WL 16929, at *5 (S.D.N.Y. Jan. 11, 2000). A Title VII plaintiff must establish that the discrimination complained of was because of his or her gender. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (Title VII directed only at discrimination based on employee's sex) Galdieri-Ambrosini v. National Realty Development Corp., 136 F.3d 276, 289 (2d Cir. 1998); Cosgrove v. Sears, Robuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993).
Even when considered in aggregate, the facts Ms. Walter pleads do not state a claim that she was discriminated against because of her gender. Accordingly, the defendant's motion to dismiss the plaintiff's general claim of gender discrimination should be granted.
2. Sexual Harassment
Ms. Walter next claims that she was subjected to sexual harassment while employed at Westdeutscher. Sexual harassment under Title VII includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature," when "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hosfile, or offensive working environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting 29 C.F.R. § 1604.11(a)); see also Mormol v. Costco. Wholesale Corp., 364 F.3d 54 (2d Cir. 2004). Under both the NYSHRL and the NYCHRL, federal standards are used to determine hosfile environment and harassment claims. Walsh v. Covenant House, 244 A.D.2d 214, 215, 664 N.Y.S.2d 282, 283 (1st Dep't 1997). In order to adequately plead a violation of Title VII and New York Executive Law § 296, Ms. Walter must state a claim under either a hosfile environment or a quid pro quo theory. Leibovitz v. New York City Transit Authority, 252 F.3d 179, 188 (2d Cir. 2001); Tomka v. Seller Corp., 66 F.3d 1295, 1304-05 (2d Cir. 1995). Here, Ms. Walter has not specified under which theory she is bringing her case. Accordingly, Ms. Walter's sexual harassment allegations will be considered under both.
a. Hosfile Environment
In order to prevail on a claim that sexual harassment has caused a hosfile work environment in violation of Title VII, a plaintiff must establish two elements. First, she must show that her workplace was permeated with "discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). Second, the plaintiff must show that a specific basis exists for imputing the conduct that created the hosfile environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).
To meet the first requirement, a plaintiff must demonstrate "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Cruz, 202 F.3d at 570 (internal quotation marks and citations omitted). The plaintiff must establish that the environment was "both objectively and subjectively offensive, one that a reasonable person would find hosfile or abusive, and one that the victim did in fact perceive to be so." Faraqher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citation omitted).
In Harris, the Supreme Court set forth a non-exhaustive list of factors relevant to determining whether a given workplace is permeated with discrimination so "severe or pervasive" as to support a Title VII claim. These include: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a "mere offensive utterance"; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted to the plaintiff. Harris, 510 U.S. at 23. In determining whether a plaintiff has submitted evidence sufficient to support a finding that a hosfile work environment exists, courts should consider the totality of the circumstances. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citing Harris, 510 U.S. at 23). Thus, the factors outlined above must be considered "cumulatively," so that a court can "obtain a realistic view of the work environment." Id. (internal quotation marks and citations omitted). This includes evaluating the "quantity, frequency, and severity" of the incidents. Id. at 110-11.
Ms. Walter offers several facts in support of her claim of a hosfile work environment. She claims that she was given conflicting or incomprehensible orders (Compl., ¶ 15); that Mr. Nehls harassed her about her supposedly expired visa (Compl., ¶ 16); that Mr. Nehls unjustifiably criticized her work (Compl., ¶ 15); and that on one occasion he engaged in inappropriate sexual conduct in her presence. (Compl., ¶ 23).
The majority of the acts of harassment complained of were not of a sexual nature. Ms. Walter's allegation that she was criticized, her allegation that she was given conflicting orders, and her assertion that Mr. Nehls harassed her about her visa are not gender based and not cognizable in a Title VII claim of sexual harassment. The only allegation Ms. Walter makes that is sexual in nature is her claim that she observed Mr. Nehls "rubbing his genitals" in his office. (Compl., ¶ 23). The issue is thus whether this act is severe enough, without the added weight of repetition or cumulation with other acts of harassment, to stand alone as the basis for a harassment claim. "Although a continuing pattern of hosfile or abusive behavior is ordinarily required to establish a hosfile environment, a single instance can suffice when it is sufficiently egregious." Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001); accord Cruz, 202 F.3d at 570;Torres v. Pisano, 116 F.3d 625, 631 n. 4 (2d Cir. 1997). Harassment need not be severe and pervasive to impose liability; one or the other will do.
In Roussell v. Harmony Corp., No. Civ. A. 01-0436, 2002 WL 1467873, at *5 (E.D. La. July 9, 2002), the court found that an employee who "routinely touched his groin in front of plaintiff and other employees" approximately five to ten times a day for two months, had engaged in behavior that was both severe and pervasive enough to create a hosfile work environment. In contrast, in Montandon v. Farmland Industries, Inc., 116 F.3d 355, 358 (8th Cir. 1997), the court found that an employee who had observed a supervisor "grabbing his testicles on two occasions" could not use this conduct to support his hosfile environment claim.
Here, it is a close question as to whether the act complained of by Ms. Walter is sufficiently severe to sustain a hosfile environment claim by itself. But given the plaintiff's minimal pleading burden at this stage, this incident should be further explored during discovery. It may ultimately be determined that there was a rational explanation for Mr. Nehls' behavior. At this stage, however, the hosfile work environment claim should not be dismissed,
b. Quid Pro Quo
Quid pro quo harassment occurs when a supervisor conditions any terms of employment upon the employee's submitting to unwelcome sexual advances. Jin v. Metropolitan Life Insurance Co., 310 F.3d 84, 91 (2d Cir. 2002). A quid pro quo violation of Title VII is caused by explicit discriminatory alterations in the terms or conditions of a plaintiff's employment. Id. Explicit alterations are established when a plaintiff proves that an action, such as a firing or demotion, resulted from a refusal to submit to a supervisor's sexual demands, or that "an employer demanded sexual favors from an employee in return for a job benefit."Id. (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998)).
Here, Ms. Walter has not explicitly alleged that Mr. Nehls demanded sexual favors from her, nor has she claimed that any job benefits were made contingent upon her submission to his sexual conduct. She did claim that Mr. Nehls invited her to a social affair in April 2000 in an "inappropriate manner," and that after her refusal, he began criticizing her and giving confusing orders. (Compl., 51 14, 15). The defendant claims that because Ms. Walter "does not allege that she was denied an economic benefit on account of her gender or because she rejected sexual advances by a co-worker, she cannot proceed under a quid pro quo theory of sexual harassment." (Def. Memo, at 9). While Ms. Walter has not specified in what way Mr. Nehls' invitation was "inappropriate," she has claimed that following her decision to decline his invitation, he began to treat her differently and eventually terminated her. Ms. Walter has made "a short and plain statement of the claim" and has alleged facts upon which relief could be granted. Her claim thus survives a motion to dismiss. Swierkiewicz, 534 U.S. at 512; Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir. 2002).
C. Discrimination Based on Disability
Ms. Walter next asserts that the defendant discriminated against her on the basis of disability in violation of the NYSHRL and the NYCHRL. Ms. Walter claims that Mr. Nehls' "daily harassment" of her resulted in "serious health consequences." (Compl., ¶ 24). She asserts that on one occasion, after returning from sick leave due to "sinusitis, laryngitis and the flu, . . . Mr. Nehls made a number of negative references about her health and indicated that it could result in the loss of her job." (Compl., ¶ 25). Ms. Walter also alleges that during her employment at Westdeutscher, she began suffering from chest pain that was diagnosed by a cardiologist as being stress-related. (Compl., ¶¶ 26-28). Ms. Walter claims that she was terminated because of her disability or perceived disability. (Compl., ¶¶ 43, 49).
Ms. Walter does not assert any federal claim under the Americans with Disabilities Act.
Under New York State and City law, an employer is prohibited from discharging an individual because of that individual's disability. N.Y. Exec. Law § 296; New York Admin. Code § 8-106. The NYSHRL defines "disability" as
NYSHRL § 296(1)(a) provides that it shall be an unlawful discriminatory practice
[f]or an employer . . . because of the . . . disability . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques. . . .
N.Y. Exec. Law § 292(21); see also Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2d Cir. 1998); McDermott v. Xerox, 65 N.Y.2d 213, 218-19, 491 N.Y.S.2d 106, 109 (1985). Similarly, under the NYCHRL disability means any "physical, medical, mental or psychological impairment, or a history or record of such impairment." New York Admin. Code § 8-102 (16) (a).
The defendant has not disputed that Ms. Walter was disabled under the NYSHRL or the NYCHRL. Accordingly, this issue will not be considered.
To state a prima facie case under the NYSHRL and the NYCHRL, the plaintiff must establish that "(1) she suffers from a disability as that term is defined under the statute, and (2) that the disability caused the behavior for which she was terminated." Guzman v. ARC XVI Inwood, Inc., No. 97 Civ. 0031, 1999 WL 178786, at *7 (S.D.N.Y. March 30, 1999) (citingMcEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 330 (1994));see, e.g., Posner v. Marcus Millichap Corporate Real Estate Services, 180 F. Supp.2d 529, 531-32 (S.D.N.Y. 2002).
Here, the defendant argues that even assuming that Ms. Walter did indeed suffer a disability at the time of her termination, the Complaint "does not set forth any allegations which give rise to an inference that Plaintiff's alleged disability caused the behavior for which she was terminated." (Def. Memo, at 19). New York courts have held that a plaintiff can show a prima facie case of disability by either "(a) showing that they were replaced by a person who did not have their alleged disability; or (b) producing direct evidence of discriminatory conduct." Delta Air Lines, Inc. v. New York State Division of Human Rights, 229 A.D.2d 132, 138, 652 N.Y.S.2d 253, 258 (1st Dep't 1996), aff'd, 91 N.Y.2d 65, 666 N.Y.S.2d 1004 (1997). Ms. Walter has clearly alleged the second of these. She claims that Mr. Nehls "made negative references about her health and indicated that it could result in the loss of her job." (Compl., ¶ 25). This comment becomes particularly salient given the fact that Ms. Walter was indeed terminated only a month later. (Compl., ¶ 30). It is thus reasonable to infer that there was a connection between Mr. Nehls' negative comments concerning Ms. Walter's health and her ultimate termination. Accepting the allegations in the Complaint as true, it cannot be said that the plaintiff can prove no set of facts entitling her to relief. See Swierkiewicz, 534 U.S. at 512. Accordingly, the defendant's motion to dismiss the plaintiff's claims of discrimination based on disability should be denied.
D. Retaliatory Discharge
Finally, Ms. Walter claims that she was terminated in retaliation for opposing the defendant's "unlawful employment practices" in violation of Title VII, the NYSHRL, and the NYCHRL. (Compl., ¶¶ 38, 39, 44, 45, 50, 51). Ms. Walter claims that on October 30, 2000, Mr. Nehls fired her for reasons related to her visa, but that he also stated that "the real reason he fired her was because she had complained about him." (Compl., ¶ 18). She does not specify which complaint Mr. Nehls was referring to at that time. Additionally, Ms. Walter claims that following this incident, she called the Westdeutscher headquarters to speak with Mr. Nehls' supervisors to complain about her termination. (Compl., ¶ 19). Ms. Walter further alleges that she overheard Mr. Nehls "slandering her" in response to hearing about her complaint to his supervisors. (Compl., ¶ 20). Ms. Walter states that in November, 2000, Mr. Nehls berated her for not "adhering to the proper [Westdeutscher] hierarchies when filing a complaint." (Compl., ¶ 21). When asked whether he would forward future complaints to Westdeutscher headquarters, Mr. Nehls allegedly replied that "complaints would end up in his waste paper basket." (Compl., ¶ 21). Although Mr. Nehls did not follow through with his initial threat to terminate Ms. Walter made in 2000, she was ultimately terminated on December 27, 2001. (Compl., ¶ 30).
Title VII prohibits an employer from retaliating against an employee who engages in protected activity, specifically, activity in opposition to an unlawful employment practice. See 42 U.S.C. § 2000e-3(a); see also Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001). In order to establish a prima facie case of retaliatory discharge under Title VII, a plaintiff must show that (1) she was engaged in protected activity; (2) the defendant was aware of that activity; (3) she was terminated or suspended; and (4) there was a causal connection between the protected activity and the termination or suspension. McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).
Because the plaintiff's retaliation claims under Title VII, the NYSHRL, and the NYCHRL are governed by the same standard, they will be addressed simultaneously. Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996) (stating that state law and Title VII claims are considered in tandem because New York courts rely on federal law when determining claims under the state human rights law); Castro v. Local 1199 National Health and Human Services Employees Union, 964 F. Supp. 719, 728 (S.D.N.Y. 1997); Yukoweic v. International Business Machines Inc., 228 A.D.2d 775, 643 N.Y.S.2d 747, 748 n. 1 (3d Dep't) ("New York courts require the same standard of proof in actions brought pursuant to Executive Law § 296 as that applied to federal actions brought under title VII. . . ."), leave to appeal denied, 88 N.Y.2d 816, 651 N.Y.S.2d 17 (1996).
For purposes of this motion, Westdeutscher has assumed that Ms. Walter was engaged in protected activity under Title VII. (Def. Memo. at 24). The defendant argues, however, that "Plaintiff will not be able to prove a causal connection between the purportedly protected activity and the termination of her employment." (Def. Memo. at 24). Because the time between the alleged complaint about Mr. Nehls and Ms. Walter's termination was over a year, the defendant asserts that she will be unable to demonstrate the existence of a causal connection. (Def. Memo. at 25).
A causal connection between protected activity under Title VII and adverse employment action can be shown through indirect evidence, such as close proximity in time between the protected activity and the adverse employment action, or through direct evidence of retaliatory animus directed against the plaintiff. Little v. National Broadcasting Co., 210 F. Supp.2d 330, 384-85 (S.D.N.Y. 2002); Sykes v. Mt. Sinai Medical Center, 937 F. Supp. 270, 276 (S.D.N.Y. 1996). The temporal proximity between the statutorily protected activity and the adverse employment action must be "very close" to establish the causal connection required to support a claim for retaliation in violation of Title VII. Little, 210 F. Supp.2d at 384-85.
The defendant argues that because a year passed between Ms. Walter's complaint about Mr. Nehls and her termination, there can be no indirect evidence of retaliation. Courts have found that a time lapse of one year is too great to support a finding of indirect causation. See Nicastro v. Runyon, 60 F. Supp.2d 181, 185 (S.D.N.Y. 1999) ("Claims of retaliation are routinely dismissed when as few as three months elapse between the protected . . . activity and alleged act of retaliation."); Castro, 964 F. Supp. at 729 (lapse of one year too long to support causal connection); Zenni v. Hard Rock Cafe International, Inc., 903 F. Supp. 644, 656 (S.D.N.Y. 1995) (exercise of Title VII rights not "closely followed" by adverse employment action where one year elapsed between complaint and alleged retaliatory conduct).
Although the time lapse between Ms. Walter's complaint about Mr. Nehls and her termination would be too great to support an indirect finding of causation, she has alleged facts sufficient to support a direct causal connection. Ms. Walter claims that after Mr. Nehls initially terminated her in 2000, he told her that he was firing her in retaliation for complaining about him. (Compl., ¶ 18). Although Ms. Walter does not claim that Mr. Nehls made this same comment after he fired her for a second time, the fact that he had previously made such a statement would be evidence of retaliatory animus. It is difficult to imagine evidence of retaliation more direct than a supervisor telling an employee that her complaints were the reason for her termination. Given the plaintiff's minimal pleading requirements at this stage, she has sufficiently alleged facts that would support a causal connection between her complaints about Mr. Nehls and her termination. Accordingly, the defendant's motion to dismiss the retaliation claims should be denied.
Conclusion
For the reasons set forth above, I recommend that the defendant's motion to dismiss be granted in relation to the plaintiff's claims of gender discrimination and denied in relation to the remainder of the plaintiff's claims, including her claim of quid pro quo harassment, discrimination based on disability and retaliatory discharge. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan, Room 1310, and to the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.