Title VII retaliation case fails in the Court of Appeals

This case highlights an unpleasant truth about employment discrimination cases. Sometimes the plaintiff's history of poor job performance undermines the case on the merits, even if there might be an argument that the plaintiff suffered retaliation for her protected activity in the workplace.

The case is Gonzalez v. NYU Langone Hospitals, a summary order issued on September 22. Plaintiff says she was fired in February 2017 because she helped a coworker with her lawsuit by providing translation services starting in October 2016. That four-month gap might permit an inference of retaliation. Here is the law on this issue:

An adverse employment action is “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities' and can include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ ” Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir.2009) (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)).

Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 454 (S.D.N.Y. 2012)

Although “[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), “[w]here 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,” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

This rule of law opens up the plaintiff's prior employment history for purposes of determining whether a jury can find that she was retaliated against for her protected activity. In this case, plaintiff loses because "Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 2010—long before her protected activity in 2016—prevent her from establishing an indirect causal connection." Defendant says plaintiff was really fired because she was a no-call no-show, and she received a final warning in October 2016 for another no-call no-show. The Court (Pooler, Parker and Sack) writes, "Gonzalez no call no showed and was disciplined a week before she began assisting Troche with her lawsuit, and she no call no showed again a week before Troche filed her lawsuit and two weeks before NYULH was served with the complaint. Given Gonzalez’s history of performance issues and discipline, temporal proximity, without more, is insufficient to raise an inference of discrimination."

We have another problem: plaintiff cannot show that decisionmakers knew that she had helped a coworker with the lawsuit. Retaliation does not exist if the decisionmaker does not know that you had asserted your rights in the At best, plaintiff speculated that her supervisor, Ortiz, knew about this, but all plaintiff has on this point is her sworn statement that another employee, Perez, told Ortiz about plaintiff's assistance on that lawsuit, and that Ortiz had Perez on "speed dial." That will not cut it without additional evidence about Ortiz's knowledge.