296(7) by "discharging, retaliating, and otherwise discriminating against" plaintiff
"because of [her] opposition to the unlawful employment practices of plaintiff's
employer" (complaint, ¶ 50).
"[I]t is unlawful to retaliate against an employee for opposing discriminatory
practices.... In order to make out this claim, plaintiff must show that (1) she has engaged in protected activity, (2) her
employer was aware that she participated in such activity, (3) she suffered an adverse
employment action based upon her activity, and (4) there is a causal connection between
the protected activity and the adverse action" (Forrest v Jewish Guild for the
Blind, supra, 3 NY3d at 312-313; Legnani v Alitalia Linee Aeree
Italiane, SPA, 173 F3d 845 [table; text at 1999 WL 132178] [2d Cir 1999]).
"[P]laintiff bears the burden of proof [on each of these elements] and must ultimately
establish [them] by a preponderance of the evidence" (Garside v Hillside Family of
Agencies, supra, 2011 WL 32582 at *14).
As alleged in the complaint, the activity which subjected plaintiff to retaliation was
"her refusing to yield to [David's] sexual advances and ... objecting to his sexual
comments" (complaint, ¶ 38). This is not the type of protected activity
contemplated by the law. Whatever protest plaintiff made to David cannot be deemed a
complaint about his harassment since plaintiff testified that she never complained to
David (see plaintiff's EBT), and plaintiff has not cited a single case where plaintiff's just
saying no' to the alleged harasser constitutes protected activity under either Executive
Law § 296(6) or Admin Code § 8-107(7). But even assuming this allegation to
be adequate in meeting the first prong of the test, the court finds plaintiff cannot sustain a