Recently, the Second Circuit held, in Kwan v. Andalex Group, that the district court erroneously granted summary judgment to defendant on plaintiff’s retaliation claims.
Plaintiff alleged that she was fired by defendant’s Chief Investment Officer about three weeks after she complained to defendant’s Chief Operations Officer about gender discrimination, namely, by asking him why she was “being discriminated against and treated differently from the men in the office with respect to salary increases and bonuses.”
Defendant denied that it retaliated against plaintiff, and denied that plaintiff complained of gender discrimination. ” Its explanations for the plaintiff’s firing have, however, evolved over time.” While it initially argued that its “change in business focus to international investments made the plaintiff’s skill set obsolete”, it later “shifted to an explanation that the plaintiff’s poor performance and bad behavior were the reasons for the termination.”
As part of her prima facie case of retaliation, plaintiff was required to show: “1) participation in a protected activity; 2) the defendant’s knowledge of the protected activity; 3) an adverse employment action; and 4) a causal connection between the protected activity and the adverse employment action.”
First, plaintiff’s complaint to one officer of the corporation “was sufficient to impute to Andalex general corporate knowledge of the plaintiff’s protected activity” and hence to satisfy the “knowledge” prong.
The court observed:
This case is a good illustration of why corporate knowledge is sufficient for purposes of a prima facie case of retaliation. If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing.
As to the “causation” element, “[t]he three-week period from Kwan’s complaint to her termination is sufficiently short to make a prima facie showing of causation indirectly through temporal proximity.”
Next, the court held that “Andalex’s inconsistent and contradictory explanations for the plaintiff’s termination, combined with the close temporal proximity between the September 3 conversation and Kwan’s termination, are sufficient to create a genuine dispute of material fact as to whether Kwan’s September 3 complaint of gender discrimination was a but-for cause of the plaintiff’s termination.”
It proceeded to explain and to elaborate upon the recent “but for” standard of causation announced by the U.S. Supreme Court in Univ. of Tex. Sw. Med. Ctr. v. Nassar:
The Supreme Court recently held that a plaintiff alleging retaliation in violation of Title VII must show that retaliation was a “but-for” cause of the adverse action, and not simply a “substantial” or “motivating” factor in the employer’s decision. However, “but-for” causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.
A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.
In holding that summary judgment was improper, the court focused on the employer’s inconsistent explanations for plaintiff’s termination:
Andalex offered shifting and somewhat inconsistent explanations for Kwan’s termination. Andalex claimed throughout its Position Statement to the EEOC that Kwan and [a male employee] were both terminated largely because of Andalex’s change in business focus from domestic real estate to international gaming and hospitality. This was a convenient explanation because it undercut any claim of gender or national origin discrimination. However, Marks, Andalex’s CFO and Kwan’s direct supervisor, later testified that Kwan, unlike [the male employee], was not terminated because of a shift in company focus. Marks’s testimony directly contradicts Andalex’s main representation to the EEOC. Moreover, while Kwan’s poor performance on the Argentina and Mexico projects became critical parts of Andalex’s argument that Kwan had performed poorly, those projects were never even mentioned to the EEOC as reasons for Kwan’s termination. From such discrepancies a reasonable juror could infer that the explanations given by [Andalex] were pretextual.
Kwan’s evidence of Andalex’s inconsistent explanations for her termination and the very close temporal proximity between her protected conduct and her termination are sufficient to create a triable issue of fact with regard to whether the September 3 complaint was a but-for cause of her termination. Temporal proximity alone is insufficient to defeat summary judgment at the pretext stage. However, a plaintiff may rely on evidence comprising her prima facie case, including temporal proximity, together with other evidence such as inconsistent employer explanations, to defeat summary judgment at that stage. …
Based on the discrepancies between the EEOC statement and subsequent testimony, a reasonable juror could infer that the explanation given by the defendant was pretextual, and that, coupled with the temporal proximity between the complaint and the termination, the September 3 complaint was a but-for cause of Kwan’s termination.
The court concluded that “[v]iewing the evidence in the light most favorable to the plaintiff, as required on a motion for summary judgment, there is sufficient evidence to require denial of the summary judgment motion on the claims for retaliation.”
Finally, it held that the district court properly dismissed plaintiff’s claims under ERISA/COBRA, based on defendant’s alleged failure to provide her with timely notice of her health insurance continuation coverage rights. Plaintiff failed to show that defendant engaged in bad faith or that she suffered from prejudice resulting from the lack of notice.