No retaliation claim for teacher who filed an EEOC charge

Proving causation in retaliation claims under Title VII and the First Amendment remans a tricky proposition without direct evidence ("we are firing you because you complained about XYZ") and the plaintiff has to rely on circumstantial evidence ("management loved me until I spoke out and then they issued a paper trial to fire me"). This case highlights that difficulty.

The case is Agosto v. New York City Dept. of Education, issued on December 4. I have written about the First Amendment part of the case at this link. But plaintiff (a teacher) also had a Title VII claim. He says that 3.5 months after filing the EEOC charge in March 2017, a "letter to file" was placed in his personnel folder in June 2017. Is that time-gap enough to prove retaliatory intent? The Court of Appeals (Menashi, Lohier and Cabranes) says it is not enough.

The Second Circuit notes that "this court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity." Some cases extend it to eight months. Others limit it to three months. Really, the cases in this area are all over the place. Of course, plaintiff's lawyers will highlight the eight-month rule. Management lawyers will cite the two-month rule that turns up in cases from time to time. But in this case, the plaintiff "acknowledges that the gap of more than several months is typically too like by itself to survive summary judgment." 

That concession hurts plaintiff in this case, but what also hurts him is evidence that the letter to file was triggered by an independent actor, the Parent Chairperson of the School Leadership Team, who complained that plaintiff had made a threat after a meeting. This indicates that the letter to file "was not a contrived excuse to penalize Agosto for prior protected activity." We call that the independent causation principle, which allows courts to exercise their judgment in determining what a jury can legally accept in finding causation. At some point, the court will decide that an independent event in the chain of events will absolutely kill the retaliation case. This is one of those cases.