Finding Causation Lacking, 2d Circuit Affirms Dismissal of Retaliation Claim Against Davis Polk & Wardwell

In Martinez v. Davis Polk & Wardwell LLP, 2017 WL 5592281 (2d Cir. Nov. 21, 2017), the Second Circuit affirmed the dismissal of plaintiff’s Title VII race-based pay discrimination and retaliation claims. (Here I’ll focus on the court’s evaluation of plaintiff’s retaliation claim.)

The court explained the legal requirements for making out a retaliation claim:

To establish a prima facie case of retaliation, [a plaintiff] must show (1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action.

Applying the law, it held that plaintiff failed to establish the requisite causal connection. She alleged that after she filed her EEOC charge, the defendant retaliated against her. “However, the only evidence Martinez offered to prove a causal connection is ‘the close proximity in time’ between filing her charges with the EEOC and DPW’s allegedly retaliatory actions.”

Specifically:

The district court correctly observed that “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Martinez, 208 F. Supp. 3d at 489 (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)). Martinez began receiving performance reviews that noted her struggles with time and project management as early as August 5, 2010, three years before Martinez’s filing of the EEOC charges. And Martinez admitted during her deposition that at the time she filed her EEOC charges, she anticipated a negative performance review that again criticized her time and project management problems, and she was even concerned that she might be terminated. Under these circumstances, a reasonable jury could not conclude that DPW’s treatment of Martinez in the wake of her EEOC filing (including by affording her a small pay raise) was retaliatory as opposed to the culmination of “gradual adverse job actions” that began three years prior to the alleged retaliatory event.

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