In Edelman v. NYU Langone Health System, 21 Civ. 502 (LGS), 2022 WL 4537972 (S.D.N.Y. Sept. 28, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of retaliation asserted under Title VII of the Civil Rights Act of 1964.
In reaching its decision, the court applied the well-established McDonnell Douglas burden-shifting analysis as follows:
1. Prima Facie Case
Plaintiff has made a prima facie case of retaliation. There is no dispute that Plaintiff’s firing constitutes an adverse employment action. Defendants dispute the first and third elements of the prima facie case — Plaintiff’s engagement in protected activity and a causal connection between that activity and her firing — but those arguments are unavailing.
Contrary to Defendants’ argument, Plaintiff’s communications with Defendants’ HR professionals throughout October and November 2019 made clear that she was complaining of sex discrimination, which is a protected activity under Title VII. See Rasmy, 952 F.3d at 391. In determining whether Plaintiff’s superiors fired her in retaliation for making that complaint, it is irrelevant whether NYU’s HR department separately responded appropriately.At the prima facie stage, “even without direct evidence of causation, a plaintiff can indirectly establish a causal connection to support a retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.” Kwan, 737 F.3d at 845 (cleaned up); accord Postell v. Fallsburg Library, No. 20 Civ. 3991, 2022 WL 1092857, at *10 (S.D.N.Y. Apr. 8, 2022). While the lapse of a bit more than one year is longer than a typical temporal-proximity case, Plaintiff was not an at-will employee, and her conduct did not fit into any of the narrow categories of cause for which she could be fired immediately. Defendants began making a record of purportedly non-discriminatory reasons to discharge Plaintiff within weeks after she made her discrimination complaint and then fired her at the first opportunity, when her contract came up for renewal. Under those circumstances, the temporal proximity between Plaintiff’s protected activity and her firing is sufficient to raise an inference of causation at the first step. See Rasmy, 952 F.3d at 391 (“Questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple layers of decisionmakers….”).
2. Defendants’ Purportedly Legitimate, Nondiscriminatory Reason
In response, Defendants point to the long list they compiled of purported concerns with Plaintiff’s clinical and interpersonal conduct as non-discriminatory reasons for declining to renew her contract, at least some of which are supported by affidavits. This is sufficient to satisfy Defendants’ burden of production at this stage and shift the burden back to Plaintiff.
3. Evidence of But-For Causation
Plaintiff offers evidence from which a reasonable jury could find that retaliation was a but-for cause of her firing. At this third stage of the burden-shifting analysis, “[t]emporal proximity alone is insufficient to defeat summary judgment,” but “a plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage.” Kwan, 737 F.3d at 847 (citation omitted); accord Naemit v. Village of Spring Valley, No. 20 Civ. 1882, 2022 WL 1443675, at *12 (S.D.N.Y. May 6, 2022).A jury could conclude from the timing of Defendants’ compiling of a list of “issues” that it was “a mere pretext for retaliation.” Kwan, 737 F.3d at 845; Rasmy, 952 F.3d at 392 (“[Plaintiff] argues (and a jury could agree) that this proffered reason is mere pretext, and the decision to terminate his employment was due to his repeated complaining … about ongoing discrimination.”). Ruiz testified that she was not specifically aware of Plaintiff’s complaint when she began compiling the list of issues with Plaintiff’s performance, but there is a dispute of fact whether Ruiz’s actions were part of management’s overall response to the incident. After Plaintiff lodged her initial complaint, NYU’s HR professional discussed it with at least Plaintiff’s supervisor Mr. Kaplan and seemingly also with Mr. Swirnow.
A jury also could find that, even if Plaintiff truly had performance issues, Plaintiff’s complaint was a but-for cause of her firing, because it is the reason Defendants took notice and used those issues against her. Defendants apparently did not compile lists of her faults (or any other doctor’s) before Plaintiff complained of discrimination. The parties also dispute whether the list accurately reflects Plaintiff’s performance. See Dodd v. City Univ. of N.Y., 489 F. Supp. 3d 219, 247-48 (S.D.N.Y. 2020) (“A plaintiff may show but-for causation by ‘demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.’ ” (quoting Kwan, 737 F.3d at 846)). There is also some direct evidence of retaliatory animus in the record, in Mr. Kaplan’s reaction to Plaintiff’s complaint about Mr. Antonik. See White v. Dep’t of Corr. Servs., 814 F. Supp. 2d 374, 390 (S.D.N.Y. 2011) (“Negative reactions by an employer to a plaintiff’s complaints of discrimination have been deemed indicative of retaliatory animus.”).
Based on this, the court concluded that summary judgment was inappropriate, since there was sufficient evidence for a reasonable jury to find that retaliatory intent was a but-for cause of Plaintiff’s termination.
Having found that plaintiff’s retaliation claim survived summary judgment under Title VII, the court likewise concluded that it survived summary judgment under the New York City Human Rights Law, as well as under the (liberalized, post-2019 amendment) New York State Human Rights Law.