In Goonewardena v. N.Y. Workers Comp. Bd., No. 09-CV-8244 (RA), 2017 WL 2799171, at *13 (S.D.N.Y. June 28, 2017), the court granted defendants’ motion for summary judgment on plaintiff’s retaliation claims under Title VII, the NYSHRL, and the NYCHRL.
Plaintiff established a prima facie case of retaliation. Among other things, plaintiff demonstrated that he “was terminated approximately three months after submitting letters in which he expressed concerns about discrimination and retaliation.”
The burden then shifted back to defendants “to articulate legitimate, non-retaliatory reasons for terminating Plaintiff.” Defendant did this by explaining that they terminated plaintiff based on “several perceived deficiencies in his performance.”
The “burden next shifts back to Plaintiff to show that Defendants’ proffered reasons for terminating him were pretextual and that, but for his protected activity, he would not have been terminated.”
Plaintiff did not carry this burden:
As discussed above, Plaintiff has not shown that Defendants’ stated reasons for his termination were not the true basis for their decision. Moreover, Defendants documented their concerns with Plaintiff’s performance long before he engaged in any protected activity. In particular, Farnum completed the First Probationary Report, which identified several deficiencies in Plaintiff’s performance, on February 27, 2008—weeks before Plaintiff threatened to “take the wrongful termination to the news media” and before he complained of discrimination and retaliation in letters to WCB officials. Pl. Aff. ¶¶ 67, 70-73; see Pl. Exs. 9, 10, 11. In addition, Defendants maintained a consistent view of Plaintiff’s performance before and after he began engaging in protected activity. Indeed, the First Probationary Report, which was completed before Plaintiff’s complaints of discrimination and retaliation, and the Second Probationary Report, which was completed after this protected activity, identify several of the same concerns, and both reports conclude that Plaintiff’s performance was inadequate. Compare Pl. Ex. 7, with Pl. Ex. 12. On the basis of this evidence, the Court concludes that Defendants’ stated concerns with Plaintiff’s performance were not mere pretext for retaliation.