Plaintiff Presented Sufficient Evidence of Retaliation to Survive Summary Judgment Under New “But For” Causation Standard

In Smith v. Town of Hempstead Dept. of Sanitation Sanitary District No. 2, decided November 16, 2013, the Eastern District of New York discussed the application of the Supreme Court’s recent Nassar decision in the context of a summary judgment motion.  

Nassar modified the standard for proving retaliation under Title VII of the Civil Rights Act of 1964, holding that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [mixed-motive] causation test” applicable to status-based discrimination claims (i.e., those based on an employee’s race, color, sex, national origin, or religion).

In Smith, defendants moved to reconsider the court’s 2011 denial of their motion for summary judgment as to plaintiff Leo Smith’s retaliation claim, which was based on pre-Nassar case law.

While the court agreed with defendants that reconsideration was warranted under Federal Rule of Civil Procedure 54(b) and Local Civil Rule 6.3 (since Nassar represented a post-summary judgment “shift in the law”), it nevertheless held “that, as a matter of law, the Plaintiff has established the existence of a triable issue of fact as to whether McDermott’s retaliatory motive was a but-for cause of Leo Smith’s temporary suspension.”

That is, the new Nassar standard didn’t affect the outcome here. The court reasoned:

The question now is whether, applying the Nassar standard, a triable issue of fact exists so that the adverse employment action would not have occurred in the absence of a retaliatory motive.

The Defendants contend that the only possible connection between Leo Smith’s complaint about discrimination and his temporary suspension is temporal proximity. It is true that [w]hile temporal proximity [between the protected activity and the adverse action] alone may still be sufficient at the prima facie stage, it is not sufficient at the pretext stage. However, the Defendants ignore Pugliesi’s deposition testimony that other drivers were treated more leniently than Leo Smith. Therefore, the Court adheres to its previous determination that the fact that [white employee] [Carl] Geiger was not suspended raises a triable issue of fact as to whether [Leo Smith] was suspended in retaliation for his protected conduct.

[T]his apparent disparate treatment, coupled with the temporal proximity between the underlying complaint and employment adverse action, raises a triable issue of fact as to whether McDermott’s retaliatory motive was a but-for cause of Leo Smith’s temporary suspension. For this reason, even under the more defendant-friendly Nassar standard, the Court adheres to its prior determination denying the Defendants’ motion for summary judgment dismissing Leo Smith’s retaliation claims[.]  (Emphasis added.)

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