In order to win a retaliation case, you have to show that the defendant engaged in an adverse employment action at least a few months after you engaged in the protected activity. We call that causation. A few weeks ago, in an inmate beating case, the Court of Appeals adopted an interesting theory of liability on retaliation, suggesting that defendants can be guilty of retaliation if they waited longer to strike back, so long as there was a basis for them to wait, i.e., the best moment to retaliate did not present itself right away. (That case was Espinal v. Goord).
The Court of Appeals has now extended that principle to employment cases, albeit in a summary order that partially reverses summary judgment. The case is Brenes v. City of New York, decided on March 23. The plaintiff spoke with the New York Post about attendance fraud in City schools. That article appeared on December 21, 1997. Less than two months later, plaintiff's supervisor attempted to scuttle plaintiff's reappointment to his teaching position at Norman Thomas High School. That's close enough to infer retaliatory intent. But plaintiff was not fired at this time, so it's unclear that this counts as an adverse employment action. The next negative event for plaintiff was a series of negative performance evaluations starting in October 1998. That's 10 months after the New York Post article embarrassed the supervisors.
Ten months is normally too long to infer retaliation. Except that the evidence suggests that plaintiff's supervisor, Frank, thought that plaintiff would be "excessed" from his position in June 1998. Once it became clear that plaintiff was not excessed and that he was going to resume working in fall 1998, plaintiff began receiving negative evaluations. Brenes is allowed to argue at trial that the negative evaluations were retaliatory.
Here's how the Second Circuit sees it: "A reasonable jury could infer from these facts that Frank expected that Brenes’s position would disappear in June, and that she therefore had no incentive to further retaliate against him until it became clear that he would be returning to Thomas. When considered in this light, Brenes’s series of negative performance evaluations at the start of the next school year is suspicious and could plausibly support an inference of retaliation, particularly given that Brenes previously received only satisfactory evaluations from prior supervisors and Frank." For this proposition, the Court of Appeals cites Espinal v. Goord, 554 F.3d 216, 228 (2d Cir. 2009) (holding that a six-month lapse between the dismissal of a plaintiff’s lawsuit and an allegedly retaliatory beating by a police officer who was a defendant in the suit supported an inference of causation because “[i]t is plausible that the officers waited to exact their retaliation at an opportune time”).
This case allows retaliation plaintiffs to overcome the presumption that, without direct evidence of retaliatory intent ("You're fired because you blew the whistle six months ago"), an adverse action needs to take place more than a few months after the protected activity. As direct evidence is rare, this case highlights an important principle, but as shown by this unpublished ruling, the Court of Appeals deems this an unremarkable principle in light of Espinal v. Goord.