In Hampton v. Wilkie, 17-cv-5711, 2021 WL 3577941 (E.D.N.Y. Aug. 9, 2021), the court, inter alia, held that plaintiff (a former employee of the Veteran Affairs Medical Center) presented enough evidence to survive summary judgment on his retaliation claim asserted under Title VII of the Civil Rights Act of 1964.
After determining that plaintiff’s hostile work environment claim was time-barred (because plaintiff failed to contact an EEO counselor within 45 days of at least one alleged act in furtherance of the hostile work environment), it turned to plaintiff’s retaliation claim.
To make out a prima facie case of retaliation, a plaintiff must show: (1) they engaged in a protected activity; (2) their employer was aware of this activity; (3) the employer took adverse employment action against them; and (4) a causal connection exists between the alleged adverse action and the protected activity.
Here, the only disputed issues were the third and fourth elements.
As to the adverse employment action element, the court explained:
Title VII’s antiretaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). An adverse action must be “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57. The standard is objective. Id. at 68. Hence, the adverse action must exceed “petty slights or minor annoyances.” Id.; see also Hicks v. Baines, 593 F.3d 159, 164-65 (2d Cir. 2010) (explaining the standard for Title VII retaliation claims). The purpose of the antiretaliation provision is to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. White, 548 U.S. at 68 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)).
Drawing all reasonable inferences in plaintiff’s favor, the Court finds there is a genuine dispute of material fact regarding whether plaintiff suffered an adverse employment action. After plaintiff filed a formal EEO complaint, VAMC no longer treated plaintiff as a permanent employee and his temporary position subsequently expired. A reasonable jury may conclude that this effective termination would dissuade a reasonable worker from making a charge of discrimination. See, e.g., Huan Wang v. Air China Ltd., No. 17-CV-6662(MKB)(JO), 2020 WL 1140458, at *16 (E.D.N.Y. Mar. 9, 2020) (jury could reasonably find retaliatory adverse employment action where plaintiff suffered a de facto termination because defendant ended the management contract with plaintiff’s company and entered into an identical agreement with a new company that did not re-hire plaintiff). Alternatively, a reasonable jury could also find that the VAMC’s failure to convert plaintiff from temporary to permanent although Maggiore had selected him for the position was an adverse employment action because it was effectively a failure to promote. Indeed, the January 4, 2016 letter to plaintiff suggests he could have been converted to a permanent position through merit promotion.
Turning to the causation element, the court explained:
To satisfy the causation prong, the plaintiff must show that retaliation was a “but-for” cause of the adverse action, i.e., that the adverse action would not have occurred in the absence of the retaliatory motive. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). A but-for cause need not be the only cause of the employer’s actions; in fact, an adverse employment action may have multiple but-for causes. Zann Kwan, 737 F.3d at 845-46, 846 n.5. The causal connection needed for a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action. Summa, 708 F.3d at 127-28 (2d Cir. 2013) (four months between plaintiff’s complaints and denial of job position); Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (six months).
Although temporal proximity alone is insufficient to rebut the employer’s nondiscriminatory reason for the adverse employment action, temporal proximity combined with other evidence such as inconsistent employer explanations may defeat summary judgment. Zann Kwan, 737 F.3d at 847. 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.” Id. at 846. “A plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 135 (2000).
Drawing all reasonable inferences in the plaintiff’s favor, the Court finds there is a genuine dispute of material fact regarding causation. In a case in which there is an email that says, “we are trying to relieve him of his duty,” a reasonable jury may find that VAMC would not have engaged in the adverse employment action if it were not for the fact that plaintiff filed an EEO claim. The day after plaintiff spoke with management about Maggiore’s harassment in May 2015, she scratched her thigh in front of plaintiff and stated, “I was scratching my leg. I don’t want you [to] think I was scratching my crotch or anything.” DE 47 ¶ 37. Then, less than two weeks after plaintiff filed his formal EEO complaint in November 2016, Maggiore told HR intern Angel Tejada in an email “we are trying to relieve [Hampton] of his duty.” DE 44-6; DE 50-10. Around that same time, Tejada informed the HR Officer Wilmino Sainbert that Hampton’s temporary appointment was expiring, and Sainbert realized that plaintiff had never been converted to a permanent position although Maggiore had filled out all the required paperwork back in 2013. DE 47 ¶ 73; DE 44-4 at 3-5, 22-23; DE 44-15; DE 50-2 at 32-33. At trial, the close temporal proximity between the filing of the EEO claim and HR’s realization that plaintiff is not a permanent employee combined with Maggiore’s statement that “we are trying to relieve [Hampton] of his duty” may be sufficient to rebut the government’s proffered nondiscriminatory reason for the adverse employment action. Zann Kwan, 737 F.3d at 847 (temporal proximity to adverse employment action combined with inconsistent employer explanations may lead a reasonable jury to infer that defendant’s explanation is pretextual).
Although the VAMC offered Hampton an opportunity to apply for a permanent position and offered to extend his temporary appointment once again, there is still sufficient evidence supporting plaintiff’s retaliation claim to create a genuine issue of material fact. The government fails to explain why they could not have continued treating plaintiff as a permanent employee while his conversion was pending or, better yet, simply convert him to a permanent employee. Based upon Maggiore’s testimony, it appears that in 2013 Hampton went through the competitive hiring process required for permanent employees. DE 50-2 at 32-33. Sainbert also recalled that the competitive hiring process took place. DE 44-4 at 7. Hence, a reasonable jury may find it implausible that plaintiff had to go through the competitive hiring process yet again in order to be converted to a permanent employee. Given Maggiore’s admission that Hampton’s work was “exceptional,” the government’s proffered reason for ending plaintiff’s employment could reasonably be found to be pretextual. Finally, even if the jury found the expiration of plaintiff’s temporary appointment were also a but-for cause of the adverse employment action, plaintiff could still satisfy the causation requirement because an adverse employment action can have multiple but-for causes. Zann Kwan, 737 F.3d at 845-46, 846 n.5.
Therefore, having determined that there were genuine issues of material fact as to whether plaintiff was subject to an adverse employment action and whether a causal connection exists between the adverse action and the protected activity, the court denied defendant’s motion for summary judgment.