The trial court giveth and taketh away

Here's a bummer of a case for the plaintiff, who claimed she was denied a position in retaliation for complaining about discriminatory practices at the hospital where she worked. The trial court initially allowed the case to go to trial, but then the trial court taketh away, and the Court of Appeals affirms.

The case is Saji v. Nassau County Medical Center, a summary order decided on January 30. On the summary judgment, the trial initially said plaintiff had a case because the hospital had posted a position for an RN-IV but then removed that post ust weeks after Saji sent her letter that complained about discrimination. The hospital then hired a full-time RN-IV shortly afterwards. That is enough to make out a prima facie case, because the timeline cuts it too close for the hospital. If left unexplained, that temporal proximity is evidence of retaliation.

But the hospital then moved the trial court for reconsideration. These motions are rarely granted. Lawyers make them anyway because sometimes these motions are successful. In this case, it was successful. The trial court had overlooked an important piece of evidence: "Saji herself conceded that she was unqualified for the October 9, 2012 full-time RN-IV position." There goes the case. Viewing the case in its entirety, all plaintiff really had was the timeline to prove her case. But it is settled law in the Second Circuit that “[t]emporal proximity alone is insufficient to defeat summary judgment at the pretext stage.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013).

The Second Circuit (Livingston, Carney and Korman [D.J.]) says there is no way the plaintiff can get around this. While plaintiff argues that "NUMC never directly filled the full-time RN-IV job posting from April 16, 2012, NUMC did indirectly fill the posting by hiring multiple per diem RN-IVs, the only evidence for this is plaintiff's conclusory affidavit. And, as every employment lawyer knows, a party “may not rely on conclusory allegations or unsubstantiated speculation” to oppose a motion for summary judgment. Even if plaintiff were correct in this regard,

the fact that NUMC ultimately replaced a full-time RN-IV position with multiple per diem RN-IV positions would support NUMC’s contention that Saji’s letter had no connection to its decision not to re-hire her. Saji does not dispute that unlike permanent RN-IVs, per diem RN-IVs are hired on an “as-needed” basis and receive no salary. The evidence would therefore strongly suggest that NUMC decided to forgo a full-time RN-IV in favor of multiple per diem RN-IVs as a cost-saving measure. Indeed, NUMC explained to the district court that the Nassau Health Care Corporation had specifically instructed NUMC to eliminate a permanent RN-IV position, and Saji has failed to put forward evidence to rebut this contention.

Plaintiff's remaining claims are also rejected by the Second Circuit. This case shows us once again how difficult it is to prove discrimination and retaliation. Bad or even ill-advised personnel decisions are not necessarily discriminatory. And it is not easy to show the employer is lying about why it did not hire you (or why you were fired).