Thursday, January 6, 2011

Suspicious timing not enough to win Title VII retaliation case

This case resolves an issue that I have wondered about from time to time. Here's the issue: under Title VII, if you engage in protected activity (complain about discrimination in the workplace or file an EEOC complaint) and are fired or demoted shortly afterwards, that tight link between protected activity and adverse job action is enough to make out a prima facie case of retaliation, forcing the employer to articulate a neutral reason why you got fired. But is suspicious timing enough, by itself, to win the case? The answer is no.

The case is El Sayed v. Hilton Hotels Corp., decided on December 17. I believe the Court of Appeals has handled this issue in non-precedential summary orders, but this is the first published case to do so.

Three weeks after plaintiff complained to management that a co-worker called him a "terrorist Muslim Taliban," he was fired. There's no doubt plaintiff has a prima facie case of retaliation. But management says it really fired El Sayed because he omitted certain information from his employment application. The Second Circuit (Pooler, McLaughlin and Wesley) states: "The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext. Indeed, a plaintiff must come forward with some evidence of pretext in order to raise a triable issue of fact."

The sequence of events keeps plaintiff in the ballgame, but only until management offers its reason for terminating him. He cannot show pretext. "Appellant produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual. Additionally, Appellant concedes that he omitted certain employment history from his application to work at the Hilton, and has not disputed the Hilton’s assertion that this omission was grounds for termination under Hilton’s employment policies." Summary judgment is affirmed.

No comments: