In Verga v. Emergency Ambulance Service Inc. et al, the Eastern District of New York denied defendants’ motion for summary judgment on his retaliation claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
Plaintiff, an EMT, alleged that he was fired after complaining about sexual harassment by his male co-worker.
This case is instructive on the developing law of what facts are sufficient to satisfy – at least at the summary judgment stage – the “but for” causation standard established by the Supreme Court’s recent decision in Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013).
Specifically:
Section 704(a) of Title VII makes it unlawful to retaliate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In order to present a prima facie case of retaliation under Title VII …, a plaintiff must adduce evidence sufficient to permit a rational trier of fact to find [1] that [ ] he engaged in protected participation or opposition under Title VII …, [2] that the employer was aware of this activity, and [3] that the employer took adverse action against the plaintiff. In addition, the Supreme Court recently clarified the causation standard required by § 704(a) stating, “a plaintiff making a retaliation claim under § 2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer,” as distinct from “a motivating factor,” which had previously been the standard in the Second Circuit.
Claims of retaliation pursuant to Title VII are analyzed according to the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green. Once the employee has established a prima facie case, the employer “must proffer a legitimate, non-discriminatory reason for the adverse action. If it does so, then the burden shifts back to the [employee] to demonstrate pretext. …
Under Nassar, Title VII retaliation claims must be proved according to traditional principles of but-for causation … requir[ing] proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. Therefore, during the final stage of the burden shifting framework, the plaintiff must show that retaliation was a but-for cause of the adverse employment action. … [H]owever, ‘but-for’ causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.
In denying summary judgment, the court cited evidence that calls into question defendants’ articulated reason for terminating him.
In particular, while defendants asserted that they fired plaintiff because he failed to sign a letter agreement to participate in a workplace violence seminar – apparently motivated by a Facebook posting by plaintiff on the night of the alleged sexual harassment – plaintiff maintained that he was willing to participate in the seminar. Therefore, it was up “to the trier of fact to determine whether defendants’ proffered reason for the plaintiff’s termination was pretextual.”
In addition, “plaintiff’s testimony coupled with the temporal proximity between the complaint and the termination, could lead a reasonable trier of fact to determine that plaintiff’s harassment complaint was a but-for cause of his termination.”