Wednesday, March 9, 2016

Establishing Causation in Retaliation Claims: Part 2 – Lacking Close Temporal Proximity Is Not Always Fatal

In Part 1 of my blog, I discussed that one of the factors in determining whether a protected disclosure or activity caused a retaliatory personnel action is the amount of time between the disclosure and the action, or temporal proximity. While Federal government employees are generally accorded a significantly longer period of time to make this causal connection (one to two years), see Salerno v. Department of Interior and Mastrullo v. Department of Labor, private sector employees must usually prove the temporal connection within a much shorter time frame (a period generally not to exceed a couple of months). See Clark County Sch. Dist. v. Breeden; O’Neal v. Ferguson Constr. Co.; Richmond v. ONEOK, Inc. and Hughes v. Derwinski.

As discussed in Part 1, private sector employees bringing claims of retaliation under Title VII must prove that the employer’s desire to retaliate was the “but for” cause of the challenged employment action, rather than merely a ‘motivating factor.” See Univ. of Texas Southwestern Med. Ctr. v. Nassar. “[A] plaintiff may establish the requisite causation by ‘showing that the employer had knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.’” Richardson v. Petasis. The District Court for the District of Columbia has held “that a close temporal relationship may alone establish the required causal connection.” Singletary v. District of Columbia. In Richardson, the court found that the employee’s filing of an EEOC complaint on August 13, 2012, and the removal of her supervisory duties on September 11, 2012–less than one month later–was sufficiently close to establish the required causal connection. “This falls within the generally accepted range for establishing a causal connection.” Id. at *32 (citing Brodetski v. Duffey (“[C]ourts generally have accepted time periods of a few days up to a few months…”)) (brackets and elipses in original) (emphasis added).

While in private-sector cases, a few months is the outermost range in most circumstances for establishing causation based on temporal proximity, some courts have recognized temporal proximity as an indicator of causation after much longer periods when the private sector employer takes the adverse action at its first opportunity. In Kalinoski v. Gutierrez, the court found that a three-month gap between the employee’s protected activity and the defendant’s non-selection of the employee did not foreclose the employee from establishing a prima facie case of retaliation. The court explained that, “[t]his non-selection claim does not really present a situation where the employer could have taken the challenged action at any time it wished. Instead, the timing was dictated somewhat by government hiring procedures. In other words, it is possible that defendant denied plaintiff the job at the first possible opportunity following her filing of the discrimination claim—it just happened to be three months later by virtue of the normal timing of the hiring process.”

“Especially where a defendant retaliates at the first opportunity that is presented, a plaintiff will not be foreclosed from making out a prima facie case despite a substantial gap in time.” Pardo-Kronemann v. Jackson; Porter v. Cal. Dep’t of Corr. (the years between the plaintiff's protected activity and the adverse-employment actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions); Romano v. Brown & Williamson Tobacco Corp. (“We doubt that a sophisticated employer, such as defendant, would immediately retaliate. Rather, a jury may find that…defendant’s wounds merely festered until an opportunity to terminate presented itself….” The court found that a lapse of ten years between the time the employee engaged in the protected activity and his termination did not prevent a finding of causation in those circumstances.) See also Coates v. Dalton (four-year time lapse not a bar; if it were, an employer could avoid liability simply by waiting to punish an employee who had engaged in protected EEOC activity).

While temporal proximity frequently is an easy indicator of causation,  

[I]t is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of the employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.

Kachmar v. SunGard Data Systems, Inc. Indeed, “‘where there is a lack of temporal proximity, circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can also give rise to the inference’ that a causal connection exists.” Id. (citation omitted). In Abramson v. William Paterson College of New Jersey, the court found that the plaintiff proved the causal nexus by demonstrating ongoing antagonism from her department head and the dean following her protected activity.

Not only may ensuing antagonistic actions be enough to establish the requisite causal connection, but also “[e]vidence of discriminatory or disparate treatment in the time period between the protected activity and the adverse employment action can be sufficient to show a causal connection.” Che v. Massachusetts Bay Transp. Auth. (citing Kachmar, 109 F.3d at 177). In Che, the court disagreed with the defendant’s contention that no reasonable jury could find a causal connection between Che’s filing of his first two discrimination lawsuits and his demotion, which occurred eleven months after he filed his most recent lawsuit. Id. There was evidence showing that Che, after he filed his discrimination lawsuits, was subject to discipline for writing in an assignment block and having an argument with a co-worker, but other employees were not similarly disciplined for engaging in the same misconduct. The court found this evidence sufficient for Che to establish causation and to thus meet his prima facie case of retaliation. Id.

Discriminatory treatment following a protected activity or disclosure may also evidence a causal connection between the protected activity and a retaliatory action. That an intention to discriminate motivated the employer’s action may be inferred from an employer's failure to follow its “usual employment practices and procedures.” Norville v. Staten Island Univ. Hosp.  (evidence that the employer failed to follow its usual practice of selecting the employee with the most seniority for a position when two equally qualified employees apply for the position supports an inference of discrimination). See also Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (the fact that the university deviated from its usual practices was evidence of impermissible discrimination); Stewart v. Rutgers (failure to follow procedures, and procedural errors, can provide a jury with sufficient circumstantial evidence to find that an employment decision was based on discrimination motives).

As these cases make clear, a plaintiff may rely upon a broad array of evidence to establish the requisite causal connection. This evidence may include pretext. See Abramson, 260 F.3d at 289. “Resort to a pretextual explanation is, like flight from a scene of the crime, evidence of consciousness of guilt, which is, or course, evidence of illegal conduct.” Sheridan v. DuPont Nemours & Co. For example, “a plaintiff may show that her employer gave inconsistent reasons for terminating her.” Abramson, 260 F.3d at 289. “Revealing discrepancies in the proffered reasons can also constitute evidence of the causal link.” Id.

Lacking a very close temporal proximity is not necessarily fatal to establishing the causal connection in private-sector retaliation cases. Where such evidence is lacking, the connection may nonetheless be established by showing that the employer acted at the first opportunity to take an adverse action, acted with antagonism toward the employee who engaged in the protected activity, treated the employee disparately or with a discriminatory animus following the employee’s protected activity, or the employer’s asserted justifications for its action were inconsistent. Courts must make a generalized inquiry into whether the employee’s protected activity was the likely reason for the adverse action. See Kachmar, 109 F.3d at 178 (citing Waddell v. Small Tube Prods., Inc.; cf. Andrews v. City of Philadelphia (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”))

Written by Valerie A. Chastain

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