Evidence of “Shifting and Inconsistent Explanations” For Plaintiff’s Termination Supports Retaliation Claim

In Hexemer v. General Electric Co. et al., 2015 WL 3948418 (NDNY June 29, 2015), the court explained the framework for proving a retaliation claim under the New York State Human Rights Law and 42 USC § 1981:

[A] plaintiff must first make out a prima facie case by showing that: (1) the employee engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action. … If the plaintiff meets this minimal burden, the burden shifts to the employer, who must offer a legitimate, nonretaliatory reason for the adverse action. … If the employer succeeds at the second stage, then the presumption of retaliation dissipates, and the plaintiff must show that, but for the protected activity, she would not have been terminated. …

A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weakness, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action. Such discrepancies provide evidence from which a reasonable juror could conclude that the explanations are a pretext for retaliation. A plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage. An employer’s reason for an adverse action cannot be proven to be a pretext for retaliation unless it is shown to be false and that retaliation was the real reason, but a finding of falsity may, in appropriate circumstances, allow the factfinder to infer the ultimate fact of intentional retaliation.

Applying the law, the court denied defendants’ motion for summary judgment, noting defendants’ “shifting and inconsistent explanations regarding the circumstances of Plaintiff’s termination.”

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