Retaliation Claim, Arising From Termination Weeks After Discrimination Complaint, Survives Dismissal

In Kalarickal v. Denis McDonough, Secretary, Department of Veterans Affairs, 20-cv-10249, 2021 WL 5112907 (S.D.N.Y. Nov. 3, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliation claim (in one respect).

Plaintiff, a former contract employee (radiology technician) who worked for the U.S. Department of Veterans Affairs, asserted various forms of discrimination and harassment based on, inter alia, his race and national origin, and terminated for retaliatory reasons. I addressed the court’s discussion of (and decision to dismiss) plaintiff’s hostile work environment claims here; in this post I’ll discuss the court’s assessment of plaintiff’s retaliation claims.

The court framed the issue, and governing law, as follows:

Kalarickal alleges that the VA violated Title VII by retaliating against him for exercising his rights under the statute. Title VII prescribes that it “shall be an unlawful employment practice for an employer to discriminate against any of his employees … because [the employee] has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). To state a claim for a violation of this anti-retaliation provision, “the plaintiff must plausibly allege that: (1) defendants discriminated — or took an adverse employment action — against him, (2) because he has opposed any unlawful employment practice.” Vega, 801 F.3d at 90 (citation omitted). The latter element requires a showing that the “protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). This causation requirement may be pleaded either “directly, by pleading allegations of ‘retaliatory animus directed against the plaintiff by the defendant,’ ” Brightman v. Physician Affliate Grp. of New York, P.C., No. 20cv4290 (DLC), 2021 WL 1999466, at *8 (S.D.N.Y. May 19, 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015)), or “indirectly by timing” by alleging “protected activity followed closely in time by adverse employment action,” id. (quoting Vega, 801 F.3d at 90).

As a basis for his retaliation claim, he alleges that the VA fired him and took other, unspecified adverse employment actions against him because he filed two EEOC complaints regarding the VA’s conduct towards him.

The court dismissed plaintiff’s retaliation claims to the extent they were based on non-termination adverse actions, “without more detail as to the nature of those adverse actions.” Furthermore, plaintiff could not predicate his retaliation claim on his second complaint, since he did not file that complaint until after his termination.

However, the court held that plaintiff did state a claim for retaliation stemming from his discharge shortly after he filed his first complaint. Specifically, plaintiff alleges that shortly (a few weeks) he filed that complaint, he was fired because of a false allegation of workplace misconduct. The court concluded that “[a]t this stage, his assertion that protected activity was followed closely in time by adverse employment action is sufficient to survive a motion to dismiss.”

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