Judge Laura Taylor Swain U.S. District Judge Laura Taylor Swain. Photo: Rick Kopstein

The U.S. Court of Appeals for the Second Circuit has partially revived a New York City employee’s allegations that her managers discriminated against her, harassed her, and then retaliated against her when she complained.

The panel—composed of Circuit Judges Rosemary Pooler and Denny Chin and U.S. Senior Judge Richard K. Eaton of the United States Court of International Trade, sitting by designation—said U.S. District Judge Laura Taylor Swain of the Southern District of New York was correct in her dismissal of significant portions of a complaint brought by Robin Collymore, a former Department of Information Technology and Telecommunications project manager.

But the panel did find Collymore’s allegations of retaliation over her sexual harassment complaint against a manger plausible enough to send back to the district court.

Collymore brought a broad set of complaints against the city in 2016, stemming from her 11 months with DOITT. She claimed she faced sex and race-based discrimination, including unwanted touching from a female manager and allegations she was yelled and scrutinized differently than other employees because she is African American. When she lodged complaints, she claims she was retaliated against, including being forced to work through lunch breaks she required to prevent migraines.

In June 2018, Swain granted the city’s motion to dismiss the complaint, finding that Collymore largely failed to plead sufficient facts or provide enough support for her claims. In its six-page summary judgment, the panel made quick work of most of Collymore’s arguments on appeal.

Her sexual harassment claims rightly failed because she failed to plausibly allege that her sex was the motivating factor for her being touched. Likewise, her race discrimination claims were insufficiently backed up by an actionable change to the conditions of her employment, appearing more like unactionable petty slights. The panel went on to also deny Collymore’s First Amendment retaliation and Monell claims.

However, the panel found that Swain’s dismissal of Collymore’s retaliation claims were plausibly pleaded enough to survive the motion to dismiss. While most of the claims of retaliation also qualified as minor annoyances and other unactionable behavior, however, the forced work during her lunch hour was different, as it “forced Collymore to choose between reporting discrimination and maintaining her health,” according to the panel, before remanding the case back to the district court.

Collymore was represented on appeal by attorney Special Hagan. She told the New York Law Journal that, while she and her client disagreed with the district court’s dismissal, “we’re glad that we have the opportunity to litigate the case on retaliation.”

“We’re glad that we have another day to fight in court,” she said.

A spokesman for the city’s Law Department declined to comment on the panel’s decision.

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