Title VII Retaliation Claim Dismissed; Temporal Proximity Between “Protected Activity” and “Adverse Employment Action” Lacking

In Croci v. Town of Haverstraw et al, 2017 WL 6311697 (S.D.N.Y. Dec. 8, 2017), the court dismissed plaintiff’s retaliation claim under Title VII of the Civil Rights Act of 1964. The court held that plaintiff failed to make out a prima facie case of retaliation – and, in particular, that the requisite “temporal proximity” between the alleged “protected activity”, on the one hand (here, plaintiff’s filing a claim of sexual harassment), and the alleged “adverse employment action” (plaintiff’s termination), on the other.

Here is a summary of the law:

Retaliation claims are evaluated under a burden-shifting analysis. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768–69 (2d Cir. 1998) (citations omitted). First, a plaintiff must make out a prima facie case of retaliation by showing: “(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.” McMenemy, 241 F.3d at 282–83. The defendant then must articulate a legitimate, non-retaliatory reason for the alleged retaliatory conduct. Quinn, 159 F.3d at 768–69 (citations omitted). If defendant meets that burden, “plaintiff must adduce evidence sufficient to raise a fact issue as to whether the employer’s reason was merely a pretext for retaliation.”Id. at 769 (internal quotation marks, alteration, and citation omitted).
“A plaintiff making a retaliation claim under [Title VII] must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). “Close temporal proximity between the plaintiff’s protected action and the employer’s adverse employment action may in itself be sufficient to establish the requisite causal connection between a protected activity and retaliatory action.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). However, the temporal proximity must be “very close” to establish the requisite causality. … The Second Circuit has never drawn a “bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship ….” Gorman-Bakos v. Cornell Coop. of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001). Rather, the court should “exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). Courts in this Circuit have thus found, variously, that three months is too great a time to allow the inference of causation, Hollander v. Am. Cynamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990) and that an eight month gap is sufficient, Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980). See also Quinn, 159 F.3d at 769 (discharge less than two months after sexual harassment complaint filed was prima facie evidence of causal connection); Chamberlin v. Principi, 247 Fed. App’x 251, 254 (2d Cir. 2007) (no causal connection where plaintiff filed an EOOC complaint and was terminated five months later). Alternatively, a plaintiff may produce direct evidence of retaliatory animus against plaintiff by the defendant.

Plaintiff claimed that, at a luncheon in March/April 2012, she stated in the presence of defendant George Wargo (superintendent of the Town’s Highway Department) that she had sexual harassment charges pending against the town. After the November 2013 election, Wargo told plaintiff that her employment would be terminated, and that he would, instead, be hiring his long-time friend and supporter.

Applying the law, the court awarded summary judgment to defendants:

In determining whether temporal proximity, without more, can establish a causal connection, the Court must use its “judgment about the permissible inferences it can draw.” Espinal, 558 F.3d at 129. And while the Second Circuit has no bright-line rule as to the “outer limits” of a claim based on temporal proximity, the Supreme Court has held that twenty months is too long. Clark Cty, 532 U.S. at 273–74. In Clark County, twenty months had elapsed from the time that plaintiff had filed an EEOC complaint until an adverse employment action was taken. Despite the fact that her litigation was not resolved, then, the Court found that temporal causality was lacking. Here, twenty or twenty-one months elapsed between the time plaintiff allegedly informed Wargo of her complaint and her termination—not the “very close” proximity required. Id.
In sum, plaintiff has proffered no evidence which would allow a reasonable fact-finder to find that the but-for cause of her termination was retaliation. On the other hand, defendants have put forward evidence showing legitimate reasons for the adverse employment action—namely plaintiff’s support of defendant Wargo’s political opponent, and defendant Wargo’s long personal relationship with plaintiff’s replacement.

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