Tuesday, August 11, 2009

SDNY infers retaliatory intent despite 11-month time lag

In February 2009, the Second Circuit held that inmates can show a connection between their constitutionally-protected activity and the adverse action even if many months separated the two events, provided that that evidence suggests jail officials had a reason to wait to exact their retribution. This was a significant ruling because many retaliation cases -- particularly in the employment context -- are dismissed between too much time elapsed between the employee's protected activity (such as a complaint about workplace discrimination) and his alleged retribution (such as his termination or demotion).

Although I do not believe the Second Circuit has applied this reasoning in a published employment case, this reasoning is not foreign to employment cases in the district court, though it only turns up once in a blue moon. It happened on August 5. In a district court ruling handed down that day, the Southern District of New York allowed a public employee's retaliation case to proceed even though his forced resignation in August 2006 took place nearly a year after he refused to post a Town councilman's campaign sign on his lawn. The case is Cronin v. St. Lawrence, 2009 WL 2391861 (SDNY Aug. 5, 2009)

How many employment cases have we seen where an 11-month gap is not enough to win a retaliation case? Without direct evidence of retaliatory intent, a short gap between the protected activity and the adverse decision may be enough, but at some point the two events are too far apart and courts will not allow juries to infer retaliatory intent simply because the termination followed the protected activity.

But in this case, the trial court denies the motion to dismiss. As Judge Karas notes, "there is no bright line for temporal proximity, and the time lag at issue here is at least in the range of acceptable time periods, particularly if defendant had no earlier opportunity to retaliate against plaintiff for engaging in protected activity." Among other cases, the district court cites for this proposition Bernhardt v. Interbank of N.Y., 18 F. Supp. 2d 218 (EDNY 2008), which holds that causation was possible despite an 11-month lapse between the protected activity and firing because defendant had possible reasons for delaying the adverse action.

However, since this is a Rule 12 motion to dismiss the complaint without the benefit of discovery, Judge Karas drops a footnote suggesting this holding may not apply on a motion for summary judgment, after the parties have had an opportunity to exchange documents and take depositions. The court states, "This does not mean, obviously, that the same result awaits plaintiff at summary judgment. For example, if defendant can establish that he had earlier opportunities, were he so inclined, to retaliate against plaintiff, but did not, the temporal gap may be too large to reasonably infer wrongful conduct by defendant."

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