Federal Court Allows Part of a Claim to Survive Against the NFL and Provides Guidance on What Constitutes Protected Activity When Opposing a Racially Discriminatory Employment Practice
August 12, 2024
By: Patrick W. Daley
In Trotter v. National Football League, __ F. Supp. 3d ___, 2024 U.S. Dist. LEXIS 104760 (S.D.N.Y. June 12, 2024), the United States District Court for the Southern District of New York provided guidance on what constitutes protected activity when opposing a racially discriminatory employment practice and, in doing so, denied in part a motion to dismiss.
In Trotter, after his employment contract was not renewed in March 2023, Jim Trotter, a black former columnist and reporter, sued the National Football League (“NFL”), NFL Enterprises, LLC (“NFLE”), and NFL Network Services, Inc. (“NFLNS”) (collectively, the “NFL Defendants”) for a hostile work environment as well as retaliation under 42 U.S.C. § 1981, in addition to related retaliation and hostile work environment claims under the New York City Human Rights Law (“NCYHRL”) and New York State Human Rights Law (“NYSHRL”).
According to Trotter, when he was hired in March 2018 by the NFL Defendants, he was assured that he would be allowed to focus his reporting on player activism as well as social issues impacting the NFL, including racial justice. But, over time, he experienced tension in his relationship with the NFL Defendants as he reported on certain social issues.
For example, in 2020, when he questioned Jerry Jones, the owner of the Dallas Cowboys, about the lack of black “decisionmakers” in the NFL, Jones responded by stating, “[i]f blacks feel some kind of way, they should buy their own team and hire who they want to hire.” When Trotter was preparing for a television appearance in 2021, he told his supervisor that he planned on recounting this conversation with Jones, but his supervisor told him he should not do that.
Also by way of example, in February 2022, at a pre-Super Bowl press conference, Trotter questioned NFL Commissioner Roger Goodell about the lack of black people in roles such as head coach, general manager, and/or club president, as well as the lack of black people working as executives for the NFL. Goodell responded by acknowledging the NFL need to “do a better job” and “find better solutions” as well as “find more effective policies.”
A few months later, in June 2022, Trotter drafted a column that was critical of the NFL’s Coach and Front Office Accelerator Program and, according to Trotter, his supervisor told him he needed to make the column more “balanced.” When discussing the column with his supervisor and his supervisor’s supervisor during a Zoom call, Trotter asserted that he believed “he was being treated disparately, unfairly and more harshly than other writers because he had expressed his belief the NFL engages in discriminatory conduct.”
Approximately seven months later, in January 2023, during a national media conference call regarding diversity in coaching, Trotter questioned the NFL’s Executive Vice President and Chief Administrative Officer, Dasha Smith, about when the NFL would hire a black manager or a full-time black employee at the news desk. Smith responded by noting, “Jim[,] [y]ou regularly make us aware of this.”
Then, approximately one year later, in February 2023, at a pre-Super Bowl press conference, Trotter again questioned Goodell about the lack of black individuals in senior management positions and the lack of a full-time black employee working at the NFL news desk. According to Trotter, Goodell was “perturbed” by this question and equivocated with his answer.
A few months before Trotter’s contract was up for renewal in March 2023, NFL Vice President of On-Air Talent Management, Sandra Nunez, told Trotter’s agent that she did not foresee any reason why Trotter’s contract would not be renewed. At renewal time, however, Nunez had a discussion with Trotter, during which Nunez allegedly asked Trotter whether he was “in alignment” with the newsroom, to which Trotter said he could not be in alignment with a newsroom that does not have black representation in decision making positions. In a follow up email to Nunez on March 12, 2023, Trotter advised Nunez he had been retaliated against over the past several weeks by, for example, not being provided opportunities and being excluded from work related functions. Twelve days later, on March 24, 2023, Nunez informed Trotter that his contract would not be renewed. Trotter then sued the NFL Defendants.
The NFL moved to dismiss the entirety of Trotter’s complaint. With respect to the retaliation claims. The court noted that to state a claim for retaliation under Section 1981, a claimant must allege (1) participation in a protected activity, (2) the defendant knew of the protected activity, (3) an adverse employment action, and (4) a causal connection between the protected activity and the adverse employment action. There was no dispute that an adverse employment action occurred -- the decision not to renew Trotter’s employment contract – but the NFL Defendants disputed whether Trotter properly plead the remaining elements.
The court’s analysis focused primarily on the issue of protected activity. The court explained that protected activity includes “any opposition to an employment practice so long as the employee had a good faith, reasonable belief that the underlying challenged actions of the employer violated anti-discrimination laws.” The court further explained that the actual employment practices opposed by a plaintiff need not actually amount to a violation of anti-discrimination laws so long as the plaintiff had the requisite good faith, reasonable belief that it was a violation.
In finding that Trotter pled sufficient facts to demonstrate he engaged in protected activity, the court highlighted the series of complaints Trotter made in his reporting about the NFL’s lack of diversity and discrimination (which are detailed above). Notably, the court rejected the NFL Defendants’ arguments that Trotter was acting in his role as a reporter while questioning Goodell and making other comments and, thus, was not engaging in protected activity. The court explained that, when an employee communicates his/her belief that an employer has engaged in a form of discrimination, that communication “virtually always” constitutes an employee’s opposition to the activity, regardless of whether such communication was made in an employee’s specific job capacity, such as a reporter.
Although the court agreed with the NFL that complaining about a lack of diversity alone is not sufficient to constitute protected activity, when resolving all inferences in Trotter’s favor (as the court must do when deciding a motion to dismiss), Trotter was not simply asserting a lack of diversity within the NFL, but, rather, that the lack of diversity directly implicated discriminatory employment practices, such as failing to hire, discriminatory failure to promote, and unlawful disparate impact of a racial group.
As to the notice element, the court found that Trotter’s February 2022 and February 2023 comments directly to Goodell expressly indicated Trotter’s disapproval with the lack of diversity in senior leadership roles among the NFL Defendants. The court commented that Trotter was not simply “asking questions as a reporter,” but, rather, “as a member of the media group, as a black man, and as an employee.” The court further noted that Goodell’s response to Trotter’s questions – that the NFL must “become more effective in our policies and our procedures” – indicated that Goodell understood Trotter’s comments to be complaining about NFL policies that may have a disparate impact on minority employees and applicants and, thus, may constitute an unlawful employment practice. Plus, the court noted that, during a call with his supervisors in June 2022, Trotter expressed his belief that he was being treated disparately because he had expressed his belief that the NFL Defendants engaged in discriminatory conduct. Although the court described Trotter’s characterization of discriminatory conduct in the complaint as “somewhat vague,” the court noted that a plaintiff need not use precise language to describe discriminatory conduct at the pleading state and is not even required to use the specific word “discrimination.”
Regarding the causal relationship element of a retaliation claim, the court explained that it exists either (1) indirectly by showing that the protected activity was followed closely by discriminatory treatment or (2) directly through evidence of retaliatory animus directed against Trotter by the NFL Defendants. The court explained that, at the pleading state, close temporal proximity between the protected activity and the adverse employment action can be sufficient to establish the causation element. The court, however, noted that there was no bright line test for temporal proximity, finding in one case that a five-month lapse between the events was not too attenuated and in other cases finding that the lapse in time can be longer. When examining the facts alleged by Trotter, the court found that the decision not to renew Trotter’s contract in March 2023 occurred less than two months after the February 2023 press conference and, when Trotter spoke with Nunez a few months before renewal in November 2022, she indicated there was no reason why his contract would not be renewed.
Based on these findings and analyses, the court found that Trotter alleged sufficient facts for his retaliation claim under Section 1981 to survive. As for the hostile environment claims, they were dismissed for failure to state a claim upon which relief can be granted, the analysis of which is beyond the scope of this post. Additionally, the claims arising under New York State and City statutes were dismissed for failure to allege “the requisite impact in New York.”
The court’s decision in Trotter is noteworthy because it helps illustrate what constitutes protected activity under civil rights statutes. Notably, general allegations about a lack of diversity are insufficient and a failure to specifically mention unlawful discrimination is not required. On the other hand, statements about unfair hiring practices and/or a failure to hire certain groups of employees, even if in a capacity that is for public consumption, such as a reporter, could be sufficient to constitute protected activity.