Thursday, December 29, 2016

Employment retaliation 101

This case provides a good introduction into how employment discrimination cases are decided in the Second Circuit. The plaintiff alleges retaliation for speaking out on financial abuses, and brings this action under the Sarbanes-Oxley Act, which courts resolve under traditional employment retaliation standards.

The case is Yang v. Navigators Group, a summary order decided on December 22. The district court threw out Yang's case on summary judgment. The Court of Appeals (Leval, Sack and Raggi) revives the claim, and it heads to trial. Here is how the district court got it wrong:

1. The district court said Yang did not engage in protected activity when she communicated concerns about some investment risk models because she only offered her own deposition and affidavit testimony about her protected activity. But the Court of Appeals reminds us that this "self-serving" testimony is enough to create an issue of fact for trial. We do not need corroborating evidence if the plaintiff testifies from her personal knowledge that something happened. For more on this concept, see Danzer v. Norden Sys. Inc., 151 F.3d 50, 57 (2d Cir. 1998) and Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016). This is an important pointt in discrimination/retaliation cases, as plaintiffs often find they cannot find corroborating witnesses, most of whom will disappear once the lawsuit is filed because they do not want to suffer their own retaliation for assisting the plaintiff-traitor.

2. The district court also said that plaintiff cannot prove she was fired because of her outspoken objections. She was fired two weeks after plaintiff opened her mouth. That is normally close enough to draw a retaliatory inference, but the district court said there was an intervening factor that cut off the causal connection: she gave a disorganized and incoherent presentation to defendant's senior executive team. Intervening factors can in fact kill off a retaliatory inference, and defense lawyers are always looking for this kind of evidence, but the parties here dispute what happened at that meeting. The jury has to resolve this evidentiary conflict, not the district court. As an aside, the district court relied on another district court case in support of its holding that the intervening cause entitled management to summary judgment. But that district court ruling has since been overturned by the Second Circuit, Sharkey v. JP Morgan Chase, 2016 WL 4820997 (2d Cir. Sept. 12, 2016).

3. Plaintiff also wins this appeal because defendant offered conflicting reasons for her termination. Those conflicting reasons suggest defendant was dissembling to shield a retaliatory motive. While defendant cites generalized performance concerns to justify plaintiff's termination, she was never told of these concerns during her employment. Rather, plaintiff says she was only told she was fired because she did not fit into defendant's "culture" and lacked a "hands on" approach to her position. This is an interesting holding. Usually, the "inconsistent explanations" theory of retaliatory or discriminatory intent involves different reasons offered by defendant once the case proceeds to litigation. In this case, we look at what management told plaintiff prior to her termination and compare it with defendant's explanations post-lawsuit.

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