Monday, May 7, 2018

Steady drumbeat of retaliation creates plausible Title VII claim

In 2015, the Second Circuit clarified the rules governing when Title VII cases may be dismissed at the outset. The Court noted that the Supreme Court in 2009 made it more difficult for plaintiffs to survive motions to dismiss in general. That was the Iqbal case. The Second Circuit also noted that other decisions hold that the plaintiff carries a light burden in making out a prima facie case. The plaintiff in this case survives the motion in this retaliation case.

The case is Duplan v. City of New York, decided on April 30. The go-to cases in the Second Circuit on this issue are Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015). Here are the basic rules:

“[F]or a retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against him, (2) because he has opposed any unlawful employment practice.” . . . To adequately plead causation, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action. . . . ‘But-for’ causation does not, however, require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.”
The trial court dismissed plaintiff's retaliation claim as implausible. The Court of Appeals (Lynch, Lohier and Reiss [D.J.]) reinstates it. But first, the Court rejects plaintiff's claim that a two-year delay between his EEOC charge and the denial of a pay increase creates an inference of retaliation. That two-year delay is a long time, but plaintiff says we can infer that management denied him the pay increase at the first available opportunity to do so. That theory of retaliation is a good one for plaintiffs who need to get around a lengthy time-gap between protected activity and adverse action. But the complaint does not provide enough facts to get us there. The Court says,

that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he was denied. It is also unclear how we could apply a “first available opportunity” theory to what Duplan alleges to be a persistent pattern of denying his applications for new positions when he has only exhausted the last denial in that chain. . . . His “first available opportunity” theory would require us to find it plausible that the City’s plan to retaliate against him included, among other things, biding its time for three years until a flimsy sexual harassment complaint finally gave it an excuse to suspend him.
Plaintiff still wins the appeal, as the Second Circuit seizes upon a more rational way to infer causation. The Circuit cites two district court cases for the proposition that "a 'pattern of antagonism' over the intervening period may be sufficient to demonstrate the requisite causal connection." Plaintiff alleges that a series of adverse actions

occurred against a backdrop of continuing antagonism and frustration of his professional ambitions. Following his 2011 complaints, his supervisors collectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn. 
Plaintiff also claims retaliation followed his 2014 complaints of discrimination. The Court of Appeals allows that claim to proceed, as well. The Court notes that "significantly diminished responsibilities" post-complaint may constitute "the sort of employment action ‘sufficiently disadvantageous to constitute an adverse employment action’ in a Title VII case.'” Plaintiff pleads a plausible retaliation claim under this test. The Court reasons:

Duplan alleges that his responsibilities were so diminished shortly after he filed his 2014 complaint, when the City assigned him duties well below his civil service and functional titles and took away his access to the personnel management program, thereby rendering him unable to perform the sole task he had retained from his pre-2011 responsibilities.

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