2d Circuit Affirms Dismissal of Retaliation Claim, Citing Large Gap Between Protected Activity and Adverse Actions

In Dhar v. City of New York, No. 15-2698-CV, 2016 WL 3889108 (2d Cir. July 15, 2016) (Summary Order), the court affirmed the dismissal of plaintiff’s retaliation claim under Federal Rule of Civil Procedure 12(b)(6).

“To state a prima facie claim of retaliation, a plaintiff must show (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. To withstand a motion to dismiss, a plaintiff must identify a protected activity and an adverse employment action and plead facts sufficient to give plausible support to a minimal inference of discriminatory motivation.”

The court explained why plaintiff’s complaint did not meet this standard:

We agree with the District Court that Dhar’s allegations do not support a claim of retaliation. Dhar alleged that he suffered retaliation for filing complaints against defendants in federal court. See 42 U.S.C. § 2000e-3(a). Although this is a protected activity of which defendants were aware, Dhar failed to allege a sufficient causal connection between that activity and the alleged adverse employment actions—namely, his June 2014 negative performance evaluation and his July 2014 suspension without pay. Instead, Dhar has alleged only temporal proximity between those events.

While temporal proximity can support an inference of retaliation for purposes of establishing a prima facie case, the proximity must be very close. Here, Dhar filed complaints in 2010 and 2012; the purported retaliation occurred in 2014.2 Even if we take into account Dhar’s arguments that defendants’ knowledge of the protected activity did not occur until June 2011 (when they were served with the first complaint), and that Dhar’s suspension in July 2014 stemmed from events that occurred in March 2012, the temporal gaps are too great to raise a plausible inference of discrimination.

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