Retaliation Claim Sufficiently Alleged, Based on “Very Close” Temporal Proximity Between Protected Activity & Adverse Action

In Pertillar v. AAA Western and Central New York, 16-238, 2018 WL 583115 (N.D.N.Y. Jan. 26, 2018), the court dismissed plaintiff’s race discrimination and hostile work environment claims, but held that plaintiff sufficiently alleged retaliation.

The court summarized the requirements for pleading retaliation:

A plaintiff claiming retaliation under Title VII [of the Civil Rights Act of 1964] must allege: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a causal connection between plaintiff’s protected activity and the adverse employment action.

Here, plaintiff’s EEOC complaint qualified as “protected activity”, and his suspension without pay is an “adverse employment action.”

As to the fourth element, the court explained:

[A]lthough Pertillar’s allegation that the “disciplinary action was based in whole or part on [his] … protected activity,” (Am. Compl. ¶ 22), is conclusory, “a causal connection between protected activity and an adverse employment activity on the basis of timing alone[ ] [can be inferred if] the temporal proximity [is] ‘very close.’ ” Morisseau v. DLA Piper, 532 F. Supp. 2d 595, 616 (S.D.N.Y. 2008), aff’d, 355 Fed.Appx. 487 (2d Cir. 2009) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Here, Pertillar alleges that his suspension without pay occurred the month following his November 2014 EEOC filing. (Am. Compl. ¶¶ 21-22.) At least one court in this Circuit has held that temporal proximity of just over one month between the filing of an EEOC charge and a suspension is “arguably ‘very close.’ ” See Bush v. Fordham Univ., 452 F. Supp. 2d 394, 417 (S.D.N.Y. 2006). Thus, the court will not dismiss Pertillar’s Title VII retaliation claim at this stage.