Retaliation claim survives summary judgment

It is often the case that a plaintiff's discrimination case fails on the merits but his retaliation claim for asserting the discrimination charge can proceed to trial. That split is the result of different legal standards guiding these claims. The plaintiff in this case has a legitimate retaliation claim even as his underlying discrimination case is dismissed.

The case is Sce v. City of New York, a summary order issued on March 1. The underlying discrimination claim alleged failure to promote in violation of Title VII. That claim fails because plaintiff cannot show he was qualified for a position in the Collision Investigation Squad, a unit of the police department. It seems he lacked actual investigative experience. 

But the retaliation claim survives summary judgment. Even a weak discrimination claim may constitute protected activity for which the employer cannot retaliation, if and only if plaintiff asserts the failed claim in good faith. I don't see too many cases finding the plaintiff did so in bad faith, so if something bad happens to the plaintiff shortly after he engaged in protected activity, the employer is asking for a retaliation claim.

The retaliation claim was dismissed because the district court said the alleged retaliatory acts took place too long after plaintiff's protected activity. Courts will close the retaliatory window after six to eight months, though some judges give you only two to three months for a retaliation claim. I am finding it really depends on the judge. As the district court saw it, the retaliation timeline began in September 2015 when plaintiff filed an EEOC charge, and it began anew in September 2016 when plaintiff filed his initial lawsuit in this case. It is not clear in the opinion when the adverse actions took place, but September 2015/2016 was apparently too far removed from those adverse actions. That does not doom the case, however, as the Court of Appeals (Raggi, Jacobs and Nardini) says:

Scé offered evidence that an allegedly baseless sexual harassment investigation was instituted against him less than a week after he served deposition notices on several of the individual Defendants-Appellees. Moreover, Scé submitted a declaration from a former NYPD officer, Edward Rosovich, who averred that, “[o]n many occasions between 2014 and 2018,” he personally observed Defendants-Appellees Ge and Morgan speak with another officer, Sergeant Schneider, “about their plans to harm Sergeant Sc[é]’s career” by planning to “use fabricated disciplinary charges to harm Sergeant Sc[é].” 

Evidence like this will get a you a trial, especially the comment about harming plaintiff's career. The Title VII retaliation claim is reinstated on the same evidence.

 A side note: the district court in dismissing the retaliation claims under the New York City Human Rights Law misstated the legal standard, holding plaintiff to the "but-for" causation test under Title VII, and not the motivating factor test under the City law, which is far more favorable to discrimination plaintiffs. "But-for" causation requires proof that retaliation was the determining factor, tipping the scales once and for all in the retaliation. "Motivating factor" means that retaliatory intent played a role in the adverse decision. 

 

Scé offered evidence that an allegedly baseless sexual harassment investigation was instituted against him less than a week after he served deposition notices on several of the individual Defendants-Appellees. Moreover, Scé submitted a declaration from a former NYPD officer, Edward Rosovich, who averred that, “[o]n many occasions between 2014 and 2018,” he personally observed Defendants-Appellees Ge and Morgan speak with another officer, Sergeant Schneider, “about their plans to harm Sergeant Sc[é]’s career” by planning to “use fabricated disciplinary charges to harm Sergeant Sc[é].” App'x 1542–42. The district court erred in dismissing these allegations of direct observations as “conclusory,” SPA 31

Sce v. City of New York, No. 20-3954-CV, 2022 WL 598974, at *3 (2d Cir. Mar. 1, 2022)

Scé offered evidence that an allegedly baseless sexual harassment investigation was instituted against him less than a week after he served deposition notices on several of the individual Defendants-Appellees. Moreover, Scé submitted a declaration from a former NYPD officer, Edward Rosovich, who averred that, “[o]n many occasions between 2014 and 2018,” he personally observed Defendants-Appellees Ge and Morgan speak with another officer, Sergeant Schneider, “about their plans to harm Sergeant Sc[é]’s career” by planning to “use fabricated disciplinary charges to harm Sergeant Sc[é].” App'x 1542–42. The district court erred in dismissing these allegations of direct observations as “conclusory,” SPA 31

Sce v. City of New York, No. 20-3954-CV, 2022 WL 598974, at *3 (2d Cir. Mar. 1, 2022)