8+ month gap is not enough for retaliation claim

The Court of Appeals finds that a plaintiff may pursue a retaliation claim under the New York labor laws where he was denied overtime opportunities after he had asked his hospital employer about why he was exempt from receiving overtime pay. But his other claims fail, prompting the Court to make a few noteworthy comments and observations, including the time-gap that permits a finding of retaliatory intent.

The case is Wilson v. New York Presbyterian Hospital, a summary order issued on December 13. After plaintiff asked about his entitlement to overtime pay, the hospital reclassified him as non-exempt, a maneuver that would allow him to recover OT in the future. A series of bad things happened to plaintiff following his overtime inquiry, but most of them are not enough for a lawsuit. But one bad thing -- he was not offered OT opportunities -- qualifies as an adverse employment action, and that portion of his claim will go to trial (unless the case settles).

The Court finds that plaintiff has a legitimate retaliation claim because he stated in his summary judgment affidavit that management manipulated his schedule to ensure that he did not work more than 40 hours, thus denying him OT pay. The denial of these opportunities happened right after plaintiff had originally asked about his OT exemption, and in fact he had worked substantial OT hours prior to that protected activity. So something funny was going on after plaintiff spoke out about his OT exemption. This evidence permits a verdict in plaintiff's favor.

Other bad things do not support the retaliation claim, including plaintiff's termination, which took place more than eight months from his protected activity. First, management said that plaintiff had engaged in unprofessional behavior, warranting his termination. Plaintiff counters this by pointing to an email he sent to HR that rebutted the criticism that he was "argumentative" in response to negative feedback. The Court notes that plaintiff wrote this email "without a trace of self-awareness." A rare example of sly humor in a Second Circuit ruling. The general rule is that your subjective disagreement with management's discipline is not enough to create a fact issue for trial. 

What about the eight-month gap between protected activity and his termination? Some cases say that eight-months permits an inference of retaliation. The leading case on this point is Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980), which I cite regularly. Grant is an old case, though. Cases like Grant do not always permit a trial. The Court of Appeals from time to time says that only a few months will permit such an inference,  including Hollander v. Am. Cyanamid, 895 F.2d 80 (2d Cir. 1990) which said three months was too long. The Court in this case says that "more than a few months is generally too long without some other evidence of retaliation." I have not seen the Court frame the issue that way before. Under this framework, plaintiff cannot claim his termination was retaliatory. That's a huge loss for plaintiff, as the termination is most likely his money claim, and had greater value than the lost OT claim.