Posted: September 14, 2015

Second Circuit Recognizes Retaliation Claims Under Section 1983

On September 2, 2015, the Second Circuit issued a decision in Vega v. Hempstead Union Free School District, 14‐2265‐CV, recognizing the existence of a retaliation claim under Section 1983.

In Vega, the plaintiff school teacher brought an action in the EDNY against his school district and two administrators alleging claims for “discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 . . . and 42 U.S.C. § 1983.” The EDNY granted the defendants’ motion for judgment on the pleadings on, among other claims, the plaintiff’s Section 1983 retaliation claim, holding that “claims of retaliation for complaining of discrimination are not actionable under § 1983.” The Second Circuit reversed.

The court recognized that it had:

sent conflicting signals in this respect.  In Bernheim v. Litt, on which the district court relied, we observed that we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination. We declined to break new constitutional ground in that case, reasoning that retaliation claims based on complaints of racial discrimination can be brought under Title VII, which the plaintiff had chosen not to invoke. . . . .

In 2010, however, in Hicks v. Baines, we permitted retaliation claims brought by state employees to proceed under § 1983, even though the adverse treatment was allegedly in retaliation for their participation in discrimination investigations and proceedings. . . . In Hicks we did not discuss or cite Bernheim.

(Internal quotations and citations omitted). The court went on to explain that it had

conclude[d] that a claim of retaliation for a complaint that alleged discrimination is actionable under § 1983 for the following reasons.

First, our decision in Hicks squarely recognized that an employer’s retaliatory action in response to an employee’s participation in discrimination investigations and proceedings constituted an impermissible reason to treat an employee differently for purposes of the Equal Protection Clause.  In Bernheim, we did not directly address the question because we were reluctant to break new constitutional ground when there was an apparent remedy for relief under Title VII. In fact, however, Title VII did not provide a means for relief in that case because the claims were against the individual supervisor, the principal of the school where the plaintiff was a teacher. Hence, Bernheim was decided on the basis of an incorrect premise.
Second, we have recognized that once the color of state law requirement is met, except for the issue of individual liability, an equal protection claim parallels a plaintiff’s Title VII claim. There is no sound reason to deviate from this principle for a retaliation claim, when the retaliatory action is taken because a plaintiff complains of or otherwise opposes discrimination.

Third, more substantively, retaliation is a form of discrimination.  As the Supreme Court recognized in the Title IX context:
Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IXʹs private cause of action.  Retaliation is, by definition, an intentional act.  It is a form of discrimination because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination on the basis of sex because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.  We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional discrimination on the basis of sex, in violation of Title IX.

This reasoning applies with equal force to the employment context.  When a supervisor retaliates against an employee because he complained of discrimination, the retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause.

(Internal quotations and citations omitted).

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