In a recent decision, Briggs v. SCO Family of Services et al, 2023 WL 3589896, (2d Cir. May 23, 2023), the court, inter alia, affirmed the summary judgment dismissal of plaintiff’s retaliation asserted pursuant to Title VII of the Civil Rights Act of 1964.
This decision illustrates that a retaliation claim will be undermined where the alleged adverse actions commence before the alleged “protected activity.”
From the decision:
Briggs also failed to plausibly allege that a retaliatory motive arising from her internal complaint about Ryan’s discriminatory remark was a but-for cause of her suspension or termination. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “[T]he but-for causation standard does not alter the plaintiff’s ability to demonstrate causation … through temporal proximity,” and here Briggs was suspended within three weeks of filing her complaint. Vega, 801 F.3d at 91. But “[w]here,” as here, “timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001); see also Elliot-Leach v. N.Y.C. Dep’t of Educ., 710 F. App’x 449, 452 (2d Cir. 2017); Baez v. New York, 629 F. App’x 116, 119 (2d Cir. 2015). Even before Briggs filed her internal complaints, Briggs’ supervisors repeatedly alerted her to deficiencies in her paperwork and placed her in remediation for three months. And Pacheco later cited deficiencies in Briggs’ paperwork as a reason for her suspension. See App’x 608.
Based on this, the court agreed with the lower court that there was no inference of retaliation.