LASKER, District Judge.
Fannie Sims ("Sims") filed this action alleging employment discrimination and retaliation against Mme. Paulette Cleaners ("Mme. Paulette"), Noubar Mahdessian, and Ann Mahdessian
Sims worked at Mme. Paulette as a presser from 1973 until she was discharged on April 30, 1982.
As to Sims' claim of retaliation, to which this motion relates, the following facts are undisputed: after he received a copy of the complaint in the mail, Noubar Mahdessian telephoned Sims at home, told her that he had received the EEOC complaint, and that from that day forward she was required to report to work by 8:00 A.M. Sims had never been required, as a condition of her employment, to report to work by 8:00. While she had been requested to arrive at 8:00, the Mahdessians had allowed her to report between 9:00 and 11:00 because they knew that she cared for her invalid mother. The 8:00 worktime became a condition of her continued employment only after defendants learned of her formal discrimination claim. Another presser with special circumstances was permitted to arrive at work after 9:00; all but one of the remaining pressers routinely arrived later than 8:00.
After Noubar Mahdessian's telephone call, Sims began arriving at work between 8:00 and 8:45 A.M. On April 9 and again on April 25, Sims received written warnings from defendants admonishing her that if she did not arrive "by 8:00 sharp", she would be discharged. No employee at Mme. Paulette's, including Sims, had ever received a written warning, nor has any employee at Mme. Paulette's received a written warning since then.
On April 12, defendants began to monitor plaintiff's arrival time through the surveillance of other employees. No employee at Mme. Paulette's had ever been monitored, nor has any employee at Mme. Paulette's been monitored since then.
On April 30, after three weeks of monitoring during which Sims arrived between 8:00 and 8:45,
To establish a prima facie case of retaliation, plaintiff must show first, that she engaged in participation
The order of proof in a retaliation case follows the rule in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973).
Grant, 622 F.2d at 46.
As to the first two elements, it is undisputed that Sims engaged in protected participation by filing a complaint with the EEOC. It is also undisputed that defendants knew of the complaint and that over the course of the next month defendants
The facts pertaining to the third element of Sims' prima facie case are also undisputed: a retaliatory motive played a role in the adverse employment action. Defendants do not dispute that their actions toward plaintiff were motivated by her protected conduct. They contend, however, that plaintiff's EEOC complaint caused a change in their personal attitudes towards Sims, but did not cause a change in their attitudes as employers. They point to the language of the Title VII retaliation section which provides "[i]t shall be an unlawful employment practice for an employer to discriminate ...", 42 U.S.C. 2000e-3 (emphasis added), and argue that since they merely retracted the "friendly courtesies" that they, as friends, had previously extended to Sims (i.e., allowing her to come in later than 8:00 because they liked her and knew that she had an invalid mother to care for), defendants did not retaliate against her as employers by the actions they took.
Defendants misunderstand the proscriptions of Title VII. Distinctions between the Mahdessians as friends and as employers are of no moment here. Defendants, as employers, adversely altered the terms of plaintiff's employment because she filed a formal complaint against them with the EEOC. When an employer takes adverse action against an employee at least in part because she engaged in protected activities, the employer violates Title VII. Grant, 622 F.2d at 46; Kallir, 401 F.Supp. at 71, 72 n. 17.
Defendants contend that Sims was argumentative and disruptive and that this was the reason for their actions. For example, one alleged incident involved a fight in which Sims allegedly threatened a co-worker with a knife. Defendants do not deny, however, that Sims' allegedly disruptive behavior took place long before defendants' adverse action began, and that part of the disruption to which they refer in their papers was Sims' formal complaint to the EEOC.
Plaintiff correctly argues that defendants' open acknowledgement in the documents submitted to this court that they knowingly and deliberately changed the way they treated Sims because she filed an EEOC complaint is sufficient to support a finding of unlawful retaliation. Grant, 622 F.2d at 46; Kallir, 401 F.Supp. at 71. While Noubar Mahdessian states in his Affidavit in Opposition to Plaintiff's Motion for Summary Judgment
Mr. Mahdessian admitted his retaliatory motive several times in a deposition taken
N. Mahdessian Dep. at 113-114.
Moreover, in their statement pursuant to Rule 3(g) of the General Rules of this court, defendants concede that they changed their treatment of plaintiff because she filed the EEOC complaint.
Since adverse action because of protected conduct is the legal standard for retaliation, and since there is no dispute as to the material facts, plaintiff has established a prima facie case as a matter of law.
Plaintiff also argues that even if defendants had not admitted having a retaliatory motive, the actions defendants admittedly took are sufficient evidence to establish a retaliatory motive as a matter of law. Defendants do not dispute, and in fact admit, the following material facts:
The existence of a retaliatory motive can be shown by indirect evidence as well as by direct evidence. Grant, 622 F.2d at 46. Plaintiff correctly argues that the closeness in time between defendants' receipt of the EEOC complaint and the initiation of the above-described undisputed adverse employment actions toward Sims supports an inference of retaliatory motive which is sufficient to establish a prima facie case, independent of the direct evidence of defendants' motive.
Once the plaintiff's prima facie case has been established, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason to rebut the inference of retaliation. Grant, 622 F.2d 43. Cf. McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Defendants argue that Sims was discharged because she failed to meet the requirements placed on all other employees: to arrive by 8:00. This argument begs the question. As already established, defendants do not dispute that Sims was only required to arrive by 8:00 as a condition of employment because she filed a complaint with the EEOC. Even if such an argument were legitimate, it would be pretextual as a matter of law: defendants do not dispute that the 8:00 worktime would not have been enforced against Sims had she not filed a complaint with the EEOC.
Defendants have failed to substantiate the existence of a genuine dispute. See Schering Corp. v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir.1983). The only inference which can reasonably be drawn from the undisputed facts is that defendants retaliated against plaintiff because she filed a complaint with the EEOC.
It is so ordered.
Section 704(a) provides in pertinent part:
In McDonald v. Santa Fe Rail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580, 49 L.Ed.2d 493 the Supreme Court set out the general Title VII standard for motivation when it held that the plaintiff need not show that he would have been rejected or discharged solely on the basis of his race. "No more is required to be shown than that race was a `but for' cause."
The rule on retaliation in this Circuit is that if the employer's adverse actions were motivated at least in part because the employee engaged in protected activities, he violates Title VII. Grant, 622 F.2d at 46. Cf. Kallir, 401 F.Supp. at 71, 72 n. 17.
N. Mahdessian Dep. at 123-124.
N. Mahdessian Dep. at 131.
N. Mahdessian Dep. at 292.