stating that the employer “was aware that the plaintiff was complaining about a co-worker’s allegedly unlawful conduct,” as, “by complaining to an officer of the company . . . the plaintiff was in effect communicating her concerns . . . to [the employer]”
How later courts described this case
- stating that the employer “was aware that the plaintiff was complaining about a co-worker’s allegedly unlawful conduct,” as, “by complaining to an officer of the company . . . the plaintiff was in effect communicating her concerns . . . to [the employer]”
- holding that plaintiffs complaints to an officer of the company in conjunction with maintaining her complaint during subsequent internal investigation of the matter, in effect, communicated her concerns to the corporation as a whole
- holding that, in light of “evidence that the time between the plaintiffs initial complaint and her discharge was a mere twelve days,” the plaintiff had made a prima facie showing with respect to the causal connection requirement
- 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 which is covered by N.Y. Exec. Law § 290 et seq.
Written by the judges who cited it.
The opinion
JACOBS, Circuit Judge,
dissenting:
As the majority opinion states, a prima facie case of retaliation requires a showing, inter alia, “that the employee was engaged in protected activity,” Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) (citations omitted); but the plaintiff need not establish that the conduct she opposed was in fact a violation of Title VII. Id. It is enough, under our precedent, that Reed had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law. Id.; see also Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).
It is uncontested that Reed had a good faith belief, at the time of her complaint, that she was the victim of a hostile work environment. I respectfully dissent from so much of the majority’s ruling as concludes, on this record, that that belief was a reasonable one.
Reed, Infantino, and Lumley had been working as a team to secure a client that Reed had initially brought to the firm. Late one afternoon, the team realized that a presentation they had made to the client required an addendum on a rush basis. The team members agreed to work on it overnight and discuss it early the next morning. When Reed and Infantino spoke the following morning, Infantino informed her: “I have it all done, I will fax it to you, you can type it up and mail it out.” Reed was “irritated” because, while Infantino had been preparing the addendum all night, Reed had been “working late thinking about what did I want in the addendum,” and had therefore “wasted [her] time.” (emphasis added). Reed was so irritated that she did not say, “gee Chuck, thanks for working all night to help land a client for my branch office, and for assuring that I send out the material from my branch under my name so that I keep primary contact with the potential client.” Instead, she said: “jeez Chuck, like the good little secretary, I will type it up.” This statement provoked Infantino to say: “if you think my pecker is getting in the way — ,” at which point Reed hung up the phone. Later that morning, Infantino apologized. Reed testified that she found his language to be “offensive” and “inappropriate.”
I disagree with the majority’s view that Infantino sparked the confrontation with Reed. The first volley in this hostile exchange was hurled by Reed, and it was she who introduced gender roles into a business conversation. Infantino, who had worked *1185 late to help develop business that Reed had originated, responded with hostility, but the substance of his response was an emphatic demand that sex and gender not intrude upon their professional relationship. Infanti-no’s response was somewhat crude, but not lubricious or in the nature of a proposition. Moreover, the statement itself consisted of a conditional clause that was never completed by a main clause because Reed hung up the phone. Infantino could have ended the sentence by saying, “... let’s disregard the gender stuff, and focus on getting a client.”
I therefore agree with the majority that the plaintiff “likely would not have passed the ‘good faith reasonable[ness] test’ of Ma-noharan if the only evidence offered at trial had been Infantino’s isolated comment.” Maj. Op. at 1179. The majority then turns to other evidence in the record and concludes that Reed “could reasonably have perceived Infantino’s comment as merely the last in a series of incidents that led her to believe that she was the victim of a hostile work environment.” Id. at 1180. Specifically, they cite: (1) Reed’s trial testimony that Lumley “once told me I was acting like a bitch in heat and he was just not happy working with me;” and (2) evidence suggesting that even before the incident with Infantino, plaintiff “felt she was not getting the proper credit for what she does and felt [that] being a female she wasn’t as appreciated.”
In my view, reliance on this evidence is error. This is a retaliation ease. The objective of Title VII’s retaliation provision is “obviously to forbid an employer from retaliating against an employee because of the latter’s opposition to an unlawful employment practice.” Manoharan, 842 F.2d at 593 (emphasis added). Thus, the only relevant conduct in evaluating whether plaintiff has suffered retaliation is the conduct that she opposed and challenged in her complaint to her employer. See id. at 592 (referring to opposed conduct and challenged actions). The basis of Reed’s retaliation claim is the complaint she made to Rita Harfield, which did not concern Lumley. Reed testified that when she met with Harfield:
I told her about [Infantino’s] comment, but I also expressed to her my frustration in dealing — ... I said, you know, this tension is continuing, Chuck [Infantino] is really aggressive, he is really being pushy with me. And the other day he used this phrase and I thought like why is he referring to his body parts, I don’t want to hear that at work. I just think it was inappropriate.
In the absence of any record evidence that Reed ever opposed or made her employer aware of Lumley’s ugly statement, it cannot serve as a basis for Reed’s retaliation claim.
The record does (elsewhere) show that Reed complained to Harfield and therefore to her employer that, “being a female,” she received insufficient credit and appreciation. But this grievance, generalized as to names and occasions, does not begin to describe a hostile work environment, and is an insufficient makeweight. The conduct Reed complained about was that Infantino was an “aggressive” individual who made a single inappropriate remark. That comment stands alone, and does not pass the good faith reasonableness test of Manoharan .
I would reverse the district court’s order denying the defendant’s Rule 50(b) motion for judgment as a matter of law on Reed’s retaliation claim.