Vasquez v. Empress Ambulance Serv., Inc.

• Citation: 835 F.3d 267
• Decision Date: 29 August 2016
• Docket Number: August Term, 2015,Docket No. 15–3239–cv
• Parties: Andrea Vasquez, Plaintiff–Appellant, v. Empress Ambulance Service, Inc., Defendant–Appellee, Tyrell Gray, individually, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

835 F.3d 267

Andrea Vasquez, Plaintiff–Appellant,

v.Empress Ambulance Service, Inc., Defendant–Appellee,Tyrell Gray, individually, Defendant.

Docket No. 15–3239–cv

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: April 27, 2016

Decided: August 29, 2016

CASEY WOLNOWSKI, Phillips & Associates, New York, NY, for Plaintiff–Appellant

DEBRA LYNNE WABNIK, Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY, for Defendant–Appellee

Before: WALKER, CALABRESI, and HALL, Circuit Judges.

CALABRESI

, Circuit Judge:

In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, Vasquez's co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez's consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding Vasquez's offers to produce evidence in refutation, Vasquez's employer immediately fired her on the ground that she had engaged in sexual harassment. Vasquez consequently brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .

(“Title VII”), and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq . (“NYSHRL”), alleging that she was wrongfully terminated in retaliation for complaining of sexual harassment. The district court dismissed Vasquez's claims, holding that Vasquez's employer could not have engaged in retaliation because it could not be held responsible for the retaliatory animus of Vasquez's co-worker, a low-level employee with no decisionmaking authority. We hold, however, that an employee's retaliatory intent may be imputed to an employer where, as alleged here, the employer's own negligence gives effect to the employee's retaliatory animus and causes the victim to suffer an adverse employment decision. As a result, we vacate the court's decision and remand for further proceedings.

BACKGROUND¹

In July 2013, Andrea Vasquez was hired by Empress Ambulance Service, Inc. (“Empress”) to work as an emergency medical technician on an ambulance crew. In October of that year, Vasquez met Tyrell Gray, who worked for Empress as a dispatcher and who almost immediately began making romantic overtures to Vasquez. Over the course of their acquaintance, Gray “constantly asked [Vasquez] out on dates,” “attempted to flirt with her,” and “repeatedly ... put his arm around her or touched her shoulders,” causing Vasquez “to be extremely uncomfortable” as she tried to reject his advances. App'x 9.

This conduct came to a head in January 2014. On January 8, while Vasquez and Gray both worked in Empress's office, Gray approached Vasquez, placed his arm around her, and asked “When are you going to let me take you out?” App'x 9. When Vasquez replied that she had a boyfriend and was not interested in a romantic relationship, Gray insisted that “I bet I can make you leave your man” and promised to “send ... something between you and me.” App'x 9. Around midnight that night, while out on shift, Vasquez received a picture message from Gray: a photograph of his erect penis, captioned “Wat u think.” App'x 9–10. Vasquez did not respond to this message or to a follow-up text message from Gray as she continued her work. When Vasquez returned to the office at the conclusion of her shift, however, she was “extremely embarrassed, distraught, and crying.” App'x 10. And she promptly informed an Empress field supervisor about Gray's conduct. Promising that “[w]e're going to deal with this,” the supervisor walked Vasquez to a computer in Empress's office and asked that she compose and send a formal complaint right away, which Vasquez began to do. App'x 10.

As Vasquez was writing her complaint, however, Gray entered the room “to see a visually distressed [Vasquez] crying and typing at the computer.” App'x 10. Gray, “noticeably nervous,” asked Vasquez “if she was ok” and, after Vasquez declined to engage his attempts at conversation, stated, “You're reporting me, right?” App'x 10. Gray then went out of the room and ran into another emergency medical technician, Almairis Zapata, with whom he began discussing Vasquez's likely complaint. He asked Zapata, as “a favor,” because he was “afraid he was going to lose his job,” to “lie for [him]” and tell their supervisors that Vasquez and Gray had been in a romantic relationship.” App'x 11. Zapata refused, and Gray left the building.

After Gray's departure, Vasquez finished writing her complaint, in which she explained that she felt “violated” and “disrespected” as a result of Gray's behavior. She then waited in Empress's office until Sheri Baia, one of her supervisors, and Elizabeth Shepard, a member of the human resources department, arrived to discuss what had happened. The supervisors thanked Vasquez for “telling [her] story,” assured her that “[w]e don't tolerate this sort of behavior here,” and promised to “sort the situation out.” App'x 12. To aid in their investigation, Vasquez offered to show the supervisors Gray's messages on her cell phone, but they rejected her offer. They then asked Vasquez whether she preferred to go home or to wait in the office while they investigated the incident that morning, and Vasquez elected to wait.

Gray, meanwhile, had not finished seeking to undermine the accusations he anticipated from Vasquez. Rather, in the intervening hours, Gray “manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was [Vasquez].” App'x 12. He then “took screen shots of portions of the conversation, printed them off,” and “presented it to the management” of Empress as evidence that he and Vasquez had been in a consensual sexual relationship. App'x 12.

By the time Vasquez met with a committee of her union representative, Empress's owner, and Shepard to discuss the incident later that morning, the committee had already considered Gray's documents and had concluded that Vasquez was “having an inappropriate sexual relationship” with Gray. App'x 13. Shepard informed Vasquez that Empress “kn[e]w the truth,” as they had spoken with Gray and had seen his “proof” of her improper conduct by means of “pictures and text messages.” App'x 13. In particular, Shepard reported that Gray had shown them “a racy self-taken photo” that Vasquez had allegedly sent in response to Gray's explicit picture message, which they considered “proof that [Vasquez] had been sexually harassing [Gray].” App'x 13. Vasquez “adamantly denied” Shepard's allegations and asserted that Gray was lying, but Shepard insisted that “the committee had all seen the photograph” and “kn[ew] it was [her in the photo].” App'x 13. She made this assertion even though, in fact, the photo depicted only “a small fraction of a face” that could “by no means [be] concluded to be that of [Vasquez].” App'x 13. When Vasquez asked to see the photograph, moreover, Shepard refused. Likewise, when Vasquez again offered again to show the committee her own cell phone, in an attempt to prove that no such messaging had occurred, the committee declined. They then fired Vasquez for engaging in sexual harassment.

Vasquez subsequently brought suit against Empress² under Title VII and NYSHRL, claiming that Empress had wrongfully terminated her in retaliation for complaining of sexual harassment. Empress moved to dismiss Vasquez's complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6)

and the district court (Buchwald, J. ) granted the motion, holding that Gray's retaliatory intent could not be attributed to Empress and that, therefore, Empress could not have engaged in retaliation against Vasquez. Vasquez now appeals.

DISCUSSION

We review de novo a district court's grant of a motion to dismiss under Rule 12(b)(6)

, accepting as true all factual allegations contained in the complaint and drawing all inferences in the plaintiff's favor. Littlejohn v. City of New York , 795 F.3d 297, 306 (2d Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). In addition, “for a retaliation claim to survive ... a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against [her], (2) because [s]he has opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 90 (2d Cir. 2015) (internal quotation marks omitted). Under the latter element, a plaintiff must show a “retaliatory purpose” by “plausibly plead[ing] a connection between the [adverse] act and [the plaintiff's] engagement in protected activity.” Id.³

A. “Cat's Paw” Liability

Vasquez seeks to recover against Empress under what has been termed “cat's paw” liability. The phrase derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, “devour[s] ... them fast,” leaving the cat “with a burnt paw and no chestnuts” for its trouble. “[I]njected into United States employment discrimination law by [Judge Richard] Posner in 1990,” Staub v. Proctor Hosp. , 562 U.S. 411, 415 n.1, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)

, the “cat's paw” metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory...