Retaliation case fails because management was working on plaintiff's termination prior to her EEOC charge

This retaliation case reminds us that you cannot win your case under Title VII or state law if management was already working toward your termination even before you had engaged in protected activity by, for example, filing a discrimination charge with the EEOC.

The case is Nambiar v. Central Ortopedic Group, LLP, issued on October 28. The disparate treatment portion of the case is discussed at this link. But plaintiff also asserted a retaliation claim because she filed an EEOC charge on March 16, 2016 and was fired several days later. That's good timing for a retaliation claim. But we have a problem. 

The Court of Appeals (Lynch, Merriam and Kahn) finds that plaintiff cannot prove a causal connection between the EEOC charge and her termination because the evidence shows that defendants had already decided to terminate her employment before she filed the EEOC charge. In January 2016, defendants told plaintiff that she had to sign a revised contract (due to performance issues), and one month later, again before the EEOC charge, they told her to sign the contract or she would be fired. She repeatedly refused to sign the revised contract. This back and forth continued prior to the filing of plaintiff's EEOC charge, and five days before the charge was filed, defendants were already looking for her replacement.

What it all means is that "before Nambiar ever mentioned an EEOC complaint, the wheels were already in motion to terminate Nambiar's employment  -- as she was well aware," as the EEOC charge stated that defendants were "forcing her out of her position" and her termination was a "fait accompli" when she met with management on February 25, 2016.

The central case in this area is Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001), which holds that "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." This is a key principle in the Second Circuit, and it has led to many a retaliation claim's demise, even if the actual decision to fire post-dated the protected activity.