Retaliation case fails for a variety of reasons

A pretty basic rule governing retaliation claims is that a case can survive a motion for summary judgment if the plaintiff has a timeline that shows everything at work went south shortly after he engaged in protected activity, i.e., filed an EEOC charge, internally complained about discrimination, etc. But many cases are not so clear-cut. We have nuances.

The case is Hazelwood v. Highland Hospital, a summary order issued on March 1. The plaintiff requested an accommodation because of her disability (she is hearing-impaired). At some point, she complained about discrimination. Then she got fired. At the cocktail party, it would sound like plaintiff has a retaliation case. But she does not, the Court of Appeals (Raggi, Sullivan and Hall) says, for the following reasons:

First, in order to have a good retaliation claim, your internal discrimination complaint must be made in good faith. The decision does not provide enough details on this issue, which is too bad, because I don't see too many cases holding the initial complaint predicating the retaliation claim was made in bad-faith. Often, defendant's counsel does not even argue the complaint was made in bad faith. But here, the Second Circuit says, plaintiff's complaint about discrimination was conclusory and that a particular form that was relevant to her employment was "redundant," not that it constituted discrimination in violation of the Americans with Disabilities Act.

Second, even if the complaint was made in good faith, plaintiff's termination took place too long after she made that complaint. As the Court of Appeals notes, "while a causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action, the temporal nexus here -- ten months -- is insufficient to establish such a connection." This sounds about right. I have seen Second Circuit extend the timeline to eight months, but many cases are dismissed even under a shorter timeline. There is no bright-line time-frame for these cases. The Court in this case cites Clark County Sch. Dist. v. Breedon, 532 U.S. 268 (2001), which says prior cases "uniformly hold that the temporal proximity must be 'very close.'" That language actually conflicts with Second Circuit cases that allow for an eight-month gap. But we can worry about that for another day.

What really kills the case is that supervisors began criticizing plaintiff's job performance before she even complained about discrimination. "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise," the Second Circuit says, citing Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001).