Plaintiff loses retaliation case on appeal

A plaintiff can establish a prima facie case of retaliation and still lose at summary judgment. That is what happened to an Office of Mental Health employee whose discrimination complaint was followed by a series of disciplinary actions. The plaintiff loses because defendant had documented her performance problems before she ever filed the complaint.

The case is Rahman v. Carlin, a summary order issued on October 6. Plaintiff worked for OMH. On April 29, 2019, she filed complaints with the State Division of Human Rights and the EEOC, alleging discrimination over her failure to receive a promotion and equal pay. She claimed the discrimination was based on her race, color, and national origin. She later sued, claiming defendants retaliated against her because she filed that complaint.

The district court granted defendants summary judgment. The Second Circuit (Jacobs, Merriam and Schwartz) affirms. Plaintiff identified several allegedly retaliatory actions, including two interrogations, paid administrative leave, a disciplinary notice, and an unsatisfactory performance evaluation. She also argued that earlier performance evaluations were also adverse actions. The Second Circuit stated that, under Section 1983 plaintiff must show a materially adverse employment action, while the NYSHRL reaches conduct reasonably likely to deter someone from opposing discrimination. More on these dueling legal standards at the end of this blog post.

Plaintiff loses because her performance problems predated her discrimination complaint. The record showed concerns about her work performance before April 29, 2019. An April 17 email discussed concerns about her knowledge of workplace policies, failure to check email, responsiveness, and interactions with a supervisor. Later evaluations and disciplinary measures continued to cite documented performance problems. Nor could plaintiff identify any comparators who were treated differently. And the challenged actions were not sufficiently close in time to her April 2019 complaint to support an inference of retaliation.

The Court says the retaliation test under Section 1983 requires a showing that plaintiff suffered a material adverse action, in contrast to state law's dissuasion test. Is that correct? The Second Circuit cites Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), for this proposition, but Buon was a disparate treatment case, not a retaliation case. Disparate treatment cases apply a different standard, one that is less favorable for plaintiffs than the dissuasion test in retaliation cases. What is more, Buon predates the Supreme Court's ruling in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which rejected the materiality test applied in Buon for a more forgiving test, requiring that plaintiffs in disparate treatment cases only show "some harm," not material or significant harm. The analysis in Buon is outdated. This apparent error would not have made a difference in the outcome of this appeal, as the Court of Appeals also rejected plaintiff's case under the dissuasion test under state law.