Plaintiff can win retaliation claim in Title VII harassment suit

The Court of Appeals has ruled that a plaintiff makes out a legitimate retaliation claim after he was fired five months after complaining about religious and national origin harassment.

The case is Rasmy v. Marriott International, issued on March 6. I wrote about the hostile work environment portion of the case at this link. I represent the plaintiff and argued this appeal.

Plaintiff was fired after he got into an altercation with a coworker who had subjected him to a hostile work environment. The district court dismissed this claim because the termination took place five months after plaintiff had last complained about the work environment, and because the coworker was also fired as a result of the altercation. The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) rules that the district court resolved disputed facts in dismissing the case.

The district court first got it wrong in holding plaintiff to the "but-for" causation standard at the prima facie portion of the case. That causation test was adopted by the Supreme Court in recent years for retaliation cases, and it increases the plaintiff's burden in winning these claims. However, "but for" causation does not govern the prima facie case but the pretext portion, when plaintiff has to show the employer's articulated reason for his termination was false and that retaliation was the real reason.

The five-month gap is also sufficient to make out the prima facie case. The Second Circuit has said this in the past, but other cases say that five months is too long. There has not been true consistency in this area. The Second Circuit in this case says that "questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple layers of decision makers, as well as the nature of plaintiff's claims. In some circumstances, a five-month time frame for a decision to fire an employee may not be exceptional." This is important language, as it qualifies the time-frame analysis toward specific cases. The Court of Appeals cites no authority for this proposition, but it is now the law of the Circuit.

We also have a viable retaliation claim for the following reasons: (1) after plaintiff complained about the hostile work environment, a supervisor verbally abused him, threatened to fire him and told him to keep his mouth shut about anything that happened in the hotel or his days would be numbered; (2) a jury must determine if plaintiff was fired over the fight or his discrimination complaints.

While defendants claim plaintiff was really fired over the fight, the jury could find this justification was pretext and the real reason was retaliation under the principle that a prima facie case and evidence of pretext normally suffices to win the case.

The Circuit employs favorable language from Carlton v. Mystic Transportation, 202 F.3d 129 (2d Cir. 2000), for this proposition, seemingly setting aside (for the moment) the pretext-plus formulation that sometimes informs these cases, as per the Court's en banc ruling in Fisher v. Vassar College from 1997. Since plaintiff denies hitting the coworker and management knew that the coworker "had been instigating confrontations with Rasmy repeatedly by making offensive remarks about Rasmy's race, religion, and national origin," the jury can disbelieve management's claim that plaintiff was fired over the altercation. Also, there are disputed facts over whether there were cameras in the hallway where the altercation took place, the existence of which may provide proof that plaintiff did nothing wrong during that incident.