Workplace retaliation case survives summary judgment

Retaliation cases can go to trial on the basis of circumstantial evidence, but nothing helps a retaliation case like direct evidence. That's why the City of Amsterdam is going to trial in Angelita Kercado-Clymer's case.

The case is Kercado-Clymer v. City of Amsterdam, a summary order decided on March 25. Plaintiff's hostile work environment did not survive appeal, but her retaliation claim does.

Here is the well-known legal standard for retaliation: To establish a prima facie case of Title VII retaliation, a plaintiff must show (1) “participation in a protected activity known to the defendant,” (2) “an employment action disadvantaging the plaintiff,” and (3) “a causal connection between the protected activity and the adverse employment action.” Supervisor Brownell knew that plaintiff filed a discrimination complaint with the local human rights agency. Shortly after plaintiff exercised her rights, Brownell began taking it out on her. The Court of Appeals summarizes the evidence:

[A] month after she filed the complaint, Brownell caused Kercado-Clymer to receive a counseling memorandum and then several months later he initiated disciplinary charges against her for driving the wrong way down a one-way street leading to her loss of accrued vacation time. He also banned her from desk duty during the week. A reasonable trier of fact could find that the counseling memorandum, disciplinary charges, loss of accrued vacation, and ban from desk duty could all dissuade a reasonable worker from making or supporting a charge of discrimination.

The above snippet is the circumstantial evidence. But there is also direct evidence in the form of Brownell's hostile statements to the press. He said that Kercado-Clymer is “a chronic complainer,” “professional victim,” and “one of [his] worst employees” who “blatantly lied,” “was never qualified to be hired,” “has always demanded special treatment,” “and can’t be trusted,” following her filing of this suit, and the testimony of a male officer that Brownell has a reputation for being vindictive.

Although the Court of Appeals issued this decision as a summary order (and not a precedential published opinion), this case is a little more interesting than you might think. First, as noted above, the Court of Appeals deems it relevant that a co-worker testified about Brownell's vindictive reputation. That evidence is certainly music to the ears of plaintiffs' attorneys, but I'm sure the City will file a motion in limine to exclude this evidence at trial on the basis that reputational evidence violates Fed.R.Evid. 404, which prohibits propensity evidence. Then again, if the Second Circuit treats this as relevant evidence, the district court may very well deny the City's motion.

Another quirk is that this retaliation case was filed under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause. But courts have held that non-First Amendment retaliation cases (i.e., cases like this one which mirror retaliation cases filed under Title VII) cannot support an Equal Protection claim. It's not clear to me how this claim made it this far. As the Second Circuit held in 1993, "it has been assumed in this Circuit that a § 1983 claim is not precluded by a concurrent Title VII claim, when the former is based on substantive rights distinct from Title VII. A plaintiff cannot use Section 1983 to gain perceived advantages not available to a Title VII claimant, but a plaintiff can assert a claim under Section 1983 if some law other than Title VII is the source of the right alleged to have been denied." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993).