Retaliation Claim Dismissal Affirmed; Marijuana-Based Termination Not Shown to be Pretextual

In Jones v. Target Corporation, 2019 WL 6247900 (2d Cir. Nov. 22, 2019) (Summary Order), the court affirmed the dismissal of plaintiff’s Title VII retaliation claim.

The court explained that “[r]etaliation claims under Title VII are evaluated under the familiar McDonnell Douglas three-step burden-shifting analysis” and “presume[d] that Jones has established a prima facie case and that Target’s proffered reason for terminating Jones—her possession of marijuana on store property in violation of company policy—is legitimate, bypassing the first two steps of the McDonnell Douglas framework.”

It thus “proceed[ed] to the third step, where the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action” and observed that “when considering the legitimacy of an employer’s reason for an employment action, [the court] look[s] to what motivated the employer rather than to the truth of the allegations against [the] plaintiff’ on which it relies.”

The court rejected plaintiff’s contention that an HR representative (Vigliotti) possessed retaliatory motives, explaining:

[Plaintiff] relies upon inconsistencies between Vigliotti’s testimony at his deposition in this case and testimony before the New York State Unemployment Insurance Appeal Board (“UIAB”). Assuming, arguendo, that we may consider his UIAB testimony, Vigliotti only equivocated on a tangential question: whether he showed Jones the video that purportedly showed her dropping a bag of marijuana in the staff locker room. That is irrelevant to our analysis. See Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.” (emphasis added)). Indeed, before the UIAB, Vigliotti affirmed that he reviewed the video both before and after Jones dropped the bag to ensure that no other employee interacted with it and that he independently confirmed that the bag contained marijuana. This is consistent with the evidence presented to the district court.


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