Town board's fancy footwork in restructuring positions supports ADEA retaliation claim

Employers can get pretty creative when it comes to discriminating against people who file discrimination charges with the EEOC. The Court of Appeals recognizes that notion in reinstating an age discrimination lawsuit against a Duchess County municipality.

The case is Kopchik v. Town of East Fishkill, a summary order issued on December 26, a Christmas present for plaintiff, who claims he resigned his position under duress after the town eliminated a class of building and maintenance positions and then re-hired everyone but plaintiff, who instead was offered a position that he could not physically perform in light of his injuries arising from a job-related motor vehicle accident. This kind of fancy footwork could support plaintiff's retaliation claim, the Court of Appeals (Leval, Droney and Walker) says.

The Second Circuit raises a few interesting points. First, while the district court said there is no retaliation claim because the reorganization took place nine months after plaintiff filed the EEOC charge, the Court of Appeals notes there is no bright-line time-gap that will support or kill off a retaliation claim. Each case has to be evaluated in context. The Court says the nine-month gap may be explained by the amount of time it would take for the Town Board to undertake and formally adopt the restructuring. This reasoning reflects the reality of municipal decisionmaking, where nothing happens overnight. In addition, the Court of Appeals says, the retaliation could have stemmed from a prior EEOC charge that plaintiff filed in relation to earlier discrimination that plaintiff did not turn into a lawsuit. After the 90-day deadline for plaintiff to file a lawsuit in connection with that earlier charge came and went without a lawsuit, the Town Board waited another two months pass its job-restructuring resolution. While the trial court said in dismissing the case that it was not plausible for the Town Board to wait another two months to retaliate, the Court of Appeals says "it would be plausible for the Town to let some further time pass, so as to conceal its motivation." I have not previously seen this reasoning in a Second Circuit ruling. A smart plaintiff's lawyer will use that reasoning to explain away a lengthy time-gap between the protected activity and the retaliation. But bear in mind this is a summary order and not a precedential opinion, though summary orders may be cited if you've got nothing else.

In any event, we also have differential treatment between plaintiff and his non-disabled colleagues such that the time-gap does not alone revive plaintiff's lawsuit. Since other workers had their jobs eliminated but were brought back into town employment except for plaintiff, that also supports the minimal prima facie case.

These facts also revive plaintiff's disability discrimination claim, as management knew plaintiff was seriously injured and it futzed around with the positions to eliminate him from the town workforce, the Court of Appeals says. While the district court said that whether the town board's resolution eliminating the maintenance workers' positions "had a unique effect on plaintiff because of his disability is irrelevant to the causal connection" element of the prima facie case, the Second Circuit sees it differently. The resolution appeared to be designed to exclude plaintiff while bringing everyone else back to work. Under the minimal prima facie standard, plaintiffs states a plausible claim.