Second Circuit Holds Retaliation Claims Actionable Under Section 1983

Edgar M. Rivera, Esq.

On September 2, 2015, the Second Circuit Court of Appeals decided Vega v. Hempstead Union Free School District, et al., an employment-discrimination case bringing claims under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. In an opinion written by Judge Denny Chin, the court held that claims of retaliation for complaining of discrimination are actionable under § 1983, vacating a prior Eastern District of New York ruling on the matter.

Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another person of any constitutional or federal statutory rights, creating a vehicle by which a plaintiff may enforce existing federal rights denied by a state or local government. In the context of employment discrimination, § 1983 provides a private right of action for violations of the equal protection clause of the Fourteenth Amendment, which prohibits the “deprivation of any rights, privileges, or immunities” by a state or local government and its officials.

Claims brought under Title VII and §1983 may substantially overlap; both Title VII and § 1983 prohibit employment discrimination by state or local government on the basis of protected classes. For example, if a city promulgates a rule prohibiting women from certain employment, such a rule might constitute unlawful sex discrimination under Title VII, forming the basis of a Title VII claim, and violate a woman’s constitutional right to equal protection, forming the basis of § 1983 claim.

In Vega v. Hempstead Union Free School District, et al., Carlos Vega, a high school math teacher, brought discrimination and retaliation claims against the Hempstead Union Free School District and its principals under both Title VII and § 1983, alleging that the defendants discriminated against him because of his Hispanic ethnicity and retaliated against him for complaining of discrimination. Beginning in 2008, the school district took a number of actions that Vega contended were discriminatory, including assigning him an increased percentage of students that were Spanish speaking, requiring him to do twice the amount of work preparing and teaching his classes, with no additional compensation. Vega filed a charge with the Equal Employment Opportunity Commission, alleging that the school district had discriminated against him based on his ethnicity. After filing his initial charge, the defendants took a number of actions that Vega alleges were retaliatory, including assigning him classes with excessively absent students, not alerting him of a curriculum change, and giving him a negative performance review. The Eastern District of New York concluded that, among things, claims of retaliation for complaining of discrimination are not actionable under § 1983, thereby dismissing these claims.

As an initial matter, the Second Circuit acknowledged that there had been confusion surrounding the viability of relation claims under § 1983 because the court had sent “conflicting signals” in prior decisions. In Bernheim v. Litt, the court observed that “no court that has recognized a claim under the equal protection clause for retaliation….” However, in Hicks v. Baines, the court held that participation in discrimination investigations constitutes an impermissible reason to treat an employee differently, violating the equal protection clause.

In Vega, the Second Circuit concluded that a retaliation claim for a complaint that alleged discrimination is actionable under § 1983 for several reasons reasons. First, the court overturned Bernheim, stating that Bernheim was decided on the basis of the incorrect premise that there was a remedy for relief under Title VII, which was not true because the claims were against an individual supervisor (individuals are not subject to Title VII liability). Second, the court 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.” Third, the court, citing the Supreme Court of the United States’ decision in Jackson v. Birmingham Bd. of Educ. in which the Court recognized that retaliation is a form of discrimination in the Title IX context, reasoned that retaliation is a form of illegal discrimination where the complaint is based on the disparate treatment of a protected class member because “the complainant is being subjected to differential treatment” and the retaliation is a “response to the nature” of the complaint. Accordingly, the Second Circuit held that “a state employee may bring a retaliation claim under § 1983 against a supervisor who, acting under color of law, retaliates against him for opposing discrimination in the terms of his employment.”

If you believe your employer has discriminated against you, please contact The Harman Firm, LLP.