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February 14, 1984


The opinion of the court was delivered by: LASKER


Fannie Sims ("Sims") filed this action alleging employment discrimination and retaliation against Mme. Paulette Cleaners ("Mme. Paulette"), Nourbar Mahdessian, and Ann Mahdessian *fn1" in August, 1982 charging, inter alia, a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. *fn2" Sims moves for partial summary judgment primarily on the ground that defendants' admissions establish that they altered the conditions of her employment and ultimately discharged her because she filed a sex discrimination complaint against them with the Equal Employment Opportunity Commission ("EEOC") so that she is entitled to judgment on the retaliation claim as a matter of law. *fn3" Under Title VII, the act of retaliation is a separate violation, in and of itself, without regard to the plaintiff's success or failure on the merits of the underlying discrimination claim. 42 U.S.C. § 2000e-3; *fn4" EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 70 at n. 6 (S.D.N.Y. 1975), aff'd without opinion, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977).


 Sims worked at Mme. Paulette as a presser from 1973 until she was discharged on April 30, 1982. *fn5" Sims' salary was based on the number of garments she pressed. As to her complaint of sex discrimination, Sims contends that from December, 1981 until her discharge in April, 1982, she was intentionally given fewer garments to press than was her male co-worker; that she was therefore paid less than her male co-worker; and that the defendants intentionally divided the pressing work so that she would be paid less than her male co-worker. It is uncontested that Sims repeatedly complained to the Mahdessians about the work division. Unsatisfied with their denials of discrimination, Sims filed a sex discrimination complaint with the EEOC on March 26, 1982.

 As to Sims' claim of retaliation, to which this motion relates, the following facts are undisputed: after he received a copy of the complaint in the mail, Noubar Mahdessian telephoned Sims at home, told her that he had received the EEOC complaint, and that from that day forward she was required to report to work by 8:00 A.M. Sims had never been required, as a condition of her employment, to report to work by 8:00. While she had been requested to arrive at 8:00, the Mahdessians had allowed her to report between 9:00 and 11:00 because they knew that she cared for her invalid mother. The 8:00 worktime became a condition of her continued employment only after defendants learned of her formal discrimination claim. Another presser with special circumstances was permitted to arrive at work after 9:00; all but one of the remaining pressers routinely arrived later than 8:00.

 After Noubar Mahdessian's telephone call, Sims began arriving at work between 8:00 and 8:45 A.M. On April 9 and again on April 25, Sims received written warnings from defendants admonishing her that if she did not arrive "by 8:00 sharp", she would be discharged. No employee at Mme. Paulette's, including Sims, had ever received a written warning, nor has any employee at Mme. Paulette's received a written warning since then.

 On April 12, defendants began to monitor plaintiff's arrival time through the surveillance of other employees. No employee at Mme. Paulette's had ever been monitored, nor has any employee at Mme. Paulette's been monitored since then.

 On April 30, after three weeks of monitoring during which Sims arrived between 8:00 and 8:45, *fn6" Sims was discharged.


 To establish a prima facie case of retaliation, plaintiff must show first, that she engaged in participation *fn7" or opposition protected under Title VII which was known to defendants; second, that defendants took employment action which disadvantaged her; and third, that there was a causal connection between the protected participation and the disadvantaging employment action, that is, that a retaliatory motive played a part in the adverse employment action. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980).

 The order of proof in a retaliation case follows the rule in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

 "The plaintiff must first establish a prima facie case; the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the alleged acts of reprisal; and lastly, the burden then returns to the plaintiff, who is given an opportunity to demonstrate that the employer's reasons are a mere pretext for discrimination taken in retaliation for participation in protected activities."

 Grant, 622 F.2d at 46. *fn8"

 As to the first two elements, it is undisputed that Sims engaged in protected participation by filing a complaint with the EEOC. It is also undisputed that defendants knew of the complaint and that over the course of the next month defendants took adverse employment action against plaintiff by changing her reporting time, singling her out for written warnings, singling her out ...

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