Owner Not Liable for Former Employee’s Retaliation Claims

Facts: A site manager claimed that her former employer retaliated against her for opposing unlawful housing discrimination and unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964. She claimed that she was harassed and ultimately terminated by the owner because she opposed a supervisor’s instruction to deny tenancy to Russian applicants who applied for vacancies in the affordable housing building she managed.

As manager, the former employee was responsible for filling tenant vacancies. She had discretion to choose which prospective tenants to select from the waiting list, provided her selection was made in accordance with HUD regulations. Beginning in 2005, however, the executive director repeatedly advised her to “pass over” Russian applicants seeking a unit at her site, in favor of applicants of other ethnicities. The former manager told the director that she couldn’t deny applicants housing based on their ethnicity, because doing so would violate HUD regulations. He nonetheless repeated this instruction to her on six occasions between 2005 and 2009. The manager disregarded the director’s instruction and selected at least five Russian tenants during the period between 2005 and 2009.

     The director never chastised the manager about her selection of Russian applicants. On one occasion in 2007, however, the director told her that if anyone questioned her about not accepting Russian applicants, she could “blame it” on him. The director never threatened to fire her or to reduce her pay if she selected Russian tenants for her site, nor was her pay or vacation time ever docked for doing so. Moreover, the manager didn’t complain to HUD or to any other government agency about the director’s alleged instructions to pass over Russian applicants.

In January 2009, the owner hired a new management company. After the new company was brought on, the director and the manager began to disagree about the utility of the new property management system. The manager continued to access the old computer system, which she claimed was necessary to retrieve information that hadn’t been properly transferred to the new system. The director testified that he believed the manager was undermining the transition, and their disagreements about the new company’s role was evident from emails they exchanged.

In June 2009, HUD audited the manager’s site and gave the site an overall rating of “below average” and a rating of “below average in leasing and occupancy.” The site had never before received a less than “satisfactory” rating during the manager’s tenure. The manager claimed that the poor ratings were the result of the new company’s staff misplacing tenant files, and the director’s refusal to permit her to hire a vendor to fix sprinklers that had been painted over. The director attributed the poor ratings to the manager’s poor file maintenance.

Additionally, in late summer 2010, the site had a bedbug infestation. The director recommended a particular cleaning company to address the issue. The manager claimed that she tried to hire them, but the vendor didn’t return her calls. So the manager hired another firm, but didn’t get a written proposal or estimate before doing so, and the firm performed poorly. The manager acknowledged that this vendor was “not the right selection.” At this time, the director decided that the manager would be terminated.

Ruling: A New York district court granted the owner’s request for a judgment without a trial in its favor.

Reasoning: Although the manager told the director that she wouldn’t pass over prospective Russian applicants, and indeed accepted Russian applicants throughout the 2005 to 2009 time period, the manager “does not allege that she was subjected to retaliation for her opposition to housing discrimination until late 2008,” three years after the director first raised the issue of accepting Russian applicants.

The court ruled that the former manager didn’t link any change in the director’s attitude toward her to her treatment of Russian applicants, and there was no evidence that the director’s treatment of her changed within three months of any conversation they had related to Russian applicants. Given this record, the court ruled that the manager didn’t demonstrate any causal connection between her acceptance of Russian applicants and her eventual termination.

• Baldwin v. Goddard Riverside Community Center, September 2014