Court of Appeals provides guidance on prima facie causation under Title VII

The Court of Appeals has reversed summary judgment on a Title VII retaliation claim where management retaliated against the plaintiff months after she complained about sexual harassment, adopting the principle the jury can infer retaliation if the employer waited until the first opportunity to strike back at the complaining employee.

The case is Summa v. Hofstra University, decided on February 21. The Court of Appeals ruled against Summa's hostile work environment claim because the college reacted appropriately to harassment. But she can still win at trial on her retaliation claims. This decision is worth reading for lawyers who handle employment discrimination cases, particularly those who grapple with the rules governing timing and causation, which remain fuzzy.

As a graduate student, Summa had worked as the team manager for the Hofstra football team. In November 2006, she complained that the football players had sexually harassed her. She was then denied the team manager position for the Spring 2007 season. She filed a State Division of Human Rights complaint against the college in May 2007, alleging that the team manager denial was retaliatory. That month, she was offered a position in the Office of University Relations. That offer was rescinded in July 2007, after Human Resources found out about the SDHR complaint. Then, after Summa filed her lawsuit in January 2008, the college in Summer 2008 terminated her privilege of student employment because she had double-counted some of her hours.

Defendants often argue that the time lag between the protected activity and the adverse actions was too long to prove a causal connection. The Second Circuit's rulings are all over the place on how much time must elapse before the employer is out of the woods. As summarized in this decision, one case says three months is too much time for the plaintiff to win. But another says that eight months is enough to win. There is no bright-line; in the context of each case, the court knows a causal connection when it sees one. For this case, here is the analysis on the job denials:

1. The spring season manager position was denied only four months after Summa complained about sexual harassment in November 2006. The Court says, "There is strong reason to find this four-month time span sufficient in this case to establish causation because Summa’s complaints were based on events that occurred on the very last day of the fall season. The start of the spring season was the first moment in time when the football coaching staff could have retaliated against Summa as she was not directly working for them over the intervening months. This Court has recently held that even gaps of four months can support a finding of causation. Here, this close temporal relationship is made even closer by the fact that the adverse action occurred at the first actual opportunity to retaliate." I believe this is the first time the Second Circuit has used the "first opportunity" rule in a published Title VII case.

2. As for the decision to deny Summa her employment privileges, the seven-month gap between the filing of the lawsuit and that decision is not too remote. Not only has the Court of Appeals held that seven-months is not too long to raise an inference of causation, but other evidence also permits the inference of retaliatory intent. "The other surrounding circumstances—including [human resources'] personal knowledge of the lawsuit when she decided to terminate the employment privileges and [HR's] comment about insuring that graduate employees like Summa are able to “be advocates for the University,” which [the hiring official] took as including litigation-related conflicts—are sufficient to allow an inference of causation here. As correctly noted by the district court, Summa’s May 2007 complaint to the NYSDHR and its June 2007 determination that she had established probable cause are plainly close enough in time to the July 2007 rescission of the offered graduate assistantship that causality may be inferred."

What do we learn from this case? The prima facie case is flexible and determined on a case-by-case basis. There is language in a Supreme Court case, Clark County v. Breeden (2001), that says that "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.'" That decision favorably cites cases from the Seventh and Tenth Circuits that three and four months are insufficient to draw that inference. But that's only dicta, and although I am sure that Hofstra's lawyers cited Breeden on appeal, that case is not even cited or analyzed in the Summa case.