Retaliation Claim, Based on Adverse Actions Following Filing of EEO Complaint, Sufficiently Alleged

In Kocher v. Denis R. McDonough, Secretary of Veterans Affairs, Civil Action No. 22-3808, 2023 WL 3689702 (E.D.Pa. May 26, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliation claims asserted under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

the court held that plaintiff did not sufficiently allege an “adverse employment action” (warranting dismissal of her discrimination claims) and did not sufficiently allege a “hostile work environment.”

As to plaintiff’s retaliation claims, however, the court explained:

To state a claim of retaliation for asserting her rights under Title VII and the ADEA, Kocher must show that (1) she engaged in protected activity, (2) her employer took adverse action against her, and (3) there is a causal link between the protected activity and the adverse action. See Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir. 2021). “Adverse action” in the retaliation context encompasses a broader range of employer actions than in the discrimination context and includes all actions that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); see also Komis v. Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 293 (3d Cir. 2019) (stating that “[u]nlike the antidiscrimination provision, the antiretaliation provision is not limited to employer action that affects the terms and conditions of a claimant’s employment”).

Kocher engaged in clearly protected activity – filing an EEO complaint. See ECF 13-1; ECF 13-2. Kocher also alleges that within a few months of her second EEO complaint, she was placed on a PIP, received an “unsatisfactory” performance evaluation from Boxer, and Boxer accused Kocher of “colluding with another older female employee” against other employees at the VAMC. Am. Compl. ¶¶ 27-31. Even if some of these actions would not be cognizable as adverse actions on their own, “ ‘context matters’ such that ‘an act that would be immaterial in some situations is material in others.’ ” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015) (quoting Burlington, 548 U.S. at 69). Taken in context, Boxer’s sustained negative treatment of Kocher would plausibly discourage other workers from making their own EEO complaints.

Kocher also sufficiently alleges a causal link between her protected activity and these adverse actions, given that Boxer repeatedly raised Kocher’s EEO complaints during his tenure as her supervisor. Temporal proximity is not unusually suggestive of retaliation here, as Kocher only points to retaliatory actions that occurred five months after her June 2017 complaint and three months after her April 2018 complaint.3 See Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 261 n.8 (3d Cir. 2017) (holding that a period of two months cannot raise an inference of retaliation). Nonetheless, a “pattern of antagonism” along with reviewing the evidence “as a whole” may also create an inference of retaliatory motive. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); see also Robinson v. SEPTA, 982 F.2d 892, 894 (3d Cir. 1993) (holding that “[t]he mere passage of time is not legally conclusive proof against retaliation”). Here, Kocher has pled a pattern of antagonism and alleges that Boxer “consistently and continually raised” Kocher’s EEO and other complaints. Am. Compl. ¶ 16.

The court concluded that, considered together, these allegations are enough to establish a cognizable claim at the motion to dismiss stage.

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