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Home / Expert Opinion / Workplace Issues: 2nd Circuit holds retaliation claim actionable under Section 1983

Workplace Issues: 2nd Circuit holds retaliation claim actionable under Section 1983

Lindy Korn

Lindy Korn

A state employee may bring a retaliation claim under Section 1983 against a supervisor who, acting under color of law, retaliates against him for opposing discrimination in the terms of his employment. The holding in Vega v. Hempstead Union Free School District, et al., Docket No. 14-2265-cv (decided Sept. 2), provides that 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.

In this case, Carlos Vega, a high school math teacher in the Hempstead Union Free School District, brings discrimination and retaliation claims under Title VII and Section 1983 against the district and two principals, in their individual capacities. Vega alleges that the defendants discriminated against him because of his “Hispanic ethnicity” and that they retaliated against him after he complained of discrimination.

The District Court granted defendants’ motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) concluding in part, that claims of retaliation for complaining of discrimination are not actionable under Section 1983.

District courts in our circuits have noted that there has been a discrepancy between Hicks v. Baines, 593 F.3d 159, (2d Cir. 2010) and Bernheim v. Litt, 79 F.3d 318,323 (2d Cir. 1996) on whether to allow a Section 1983 retaliation claim to proceed on an equal protection theory.

In Vega, the court reasons as follows in clarifying that a claim of retaliation for an alleged complaint of discrimination is actionable under Section 1983:

  1. In Hicks, the court 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.
  2. 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, Feingold v. New York, 366 F.3d 159 (2d Cir. 2004).
  3. Retaliation is a form of discrimination, as the Supreme Court recognized in the Title IX context, Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, 173-74 (2005). This reasoning applies with equal force to the employment context.

Hence, the Second Circuit now holds that Bernheim was decided on the basis of an incorrect premise, and that 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.

Thus, Vega’s claim against the principals for retaliation is viable and the district court was found to have erred in dismissing the Section 1983 cause of action.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkorn@lkorn-law.com, (716) 856-KORN (5676) or www.lindykorn.com.