In Moy v. Napoli Shkolnik, PLLC et al, 23 Civ. 3788 (DEH), 2024 WL 3498131 (S.D.N.Y. July 22, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s – a Chinese American woman – claims of retaliation under 42 U.S.C. § 1981 and the New York State and City Human Rights Laws.
As to plaintiff’s section 1981 claim, after summarizing the black-letter law, the court applied it to the facts as follows:
First, Moy alleges that she engaged in a protected activity when she “set out the information regarding the exclusion and demotion of the employees of color,” including herself, on the chart, see Am. Compl. ¶ 31, and thereby complained of unlawful discriminatory treatment. Second, Moy alleges that Defendants Paul Napoli and Marie Napoli were aware of that protected activity, as it was to these Individual Defendants that Moy lodged her complaints. See id. Third, Moy alleges at least two viable adverse employment action claims for the purposes of Section 1981: demotion and termination. See supra.
The key issue here, then, is the fourth element: i.e., whether Moy raises a reasonable inference that either of those adverse actions would not have occurred but for Moy’s complaints about the organizational charts. Moy primarily argues that her Section 1981 retaliation claim survives because “[w]here, as here, the adverse employment actions directly follow the protected activity, the timing alone is sufficient to establish the requisite causal connection.” Pl.’s Opp’n 19.
The Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). But for an inference of discrimination to be plausible based on temporal proximity, courts “uniformly hold that the temporal proximity must be very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); see also Risco, 868 F. Supp. 2d at 113-14 (“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.”).
Here, Moy was demoted shortly after she complained about the organizational charts, and was terminated within six months. See Am. Compl. ¶¶ 37, 44-d, 66. Whether the six-month gap between Moy’s protected activity and her termination was too long to raise an inference of discrimination is a close call. See Paupaw-Myrie v. Mount Vernon City Sch. Dist., 653 F. Supp. 3d 80, 104 (S.D.N.Y. 2023) (noting that “courts have found that four and a half months is too long to draw a causal inference based on a temporal relationship”). But the shorter time gap between Moy’s protected activity and her demotion is sufficiently close in time to raise an inference of discrimination, at least for purposes of resolving the motion to dismiss.9 See Sirois v. Long Island R.R. Co., 797 F. App’x 56, 60 (2d Cir. 2020) (“Temporal proximity may support a prima facie inference that the protected activity was a contributing factor, but only where the protected act and the retaliation occur in quick succession.”). Defendants’ motion to dismiss Moy’s Section 1981 retaliation claim is therefore denied.
The court proceeded to hold that plaintiff’s retaliation claims under the state and city laws succeed for the same reasons that her federal retaliation claim succeeds, noting that plaintiff “plausibly alleges that she engaged in a protected activity, that at least two named Defendants were aware of that activity, and that Defendants took actions that disadvantaged her by demoting her” and that “the very close temporal proximity between Moy’s protected activity and Defendants’ actions against her raises an inference of discrimination.”