In baseball, a tie goes to the runner. In litigation, close calls on the evidence go the jury. At least in employment discrimination cases.
The case is Faul v. Potter, decided by summary order on December 9. Roberta Faul worked for the Post Office. She filed a discrimination complaint with the Equal Employment Opportunity Commission in May 2002 and her position was eliminated in March 2004. Normally, if you want to prove a retaliation claim through circumstantial evidence, this nearly two-year gap between protected activity and termination is too long to connect the EEOC complaint with her termination. But, as the Court of Appeals (Raggi, Walker and Dearie [D.J.]), reminds us, causation is proven either "indirectly, by showing that the protected activity was followed closely by discriminatory treatment ... or directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Faul meets this de minimus burden through evidence that her superior, Sands, threatened her job in September 2002.
The harder issue is pretext, a necessary element to Faul's claim. Faul can prove that management's reason for the elimination of her position was pretextual. The Second Circuit goes out of its way to praise the district court for its careful review of the case. This seems to have been a close one. But the Court of Appeals here is taking seriously the principle that all ambiguities are interpreted in the plaintiff's favor on a summary judgment motion.
After Faul filed her EEOC charge, Sands requested an audit of his own office. This was an unusual maneuver, and it may establish that he was looking for a way to fire Faul. While the auditors recommended that Faul's position be eliminated, the record suggests that Sands had the final say on this decision. The Court concludes, "the record here permits the inference that it was Sands's retaliatory motives that occasioned not only their arrival, but also implementation of their recommendation" to eliminate Faul's position. The fact that Sands and Faul were not getting along in the 15 months between her EEOC complaint and the audit further helps Faul's position on appeal. It was apparently also unusual for an occupied position to be excessed. On this record, Faul gets her day in court.