ADEA Retaliation Claim Survives Dismissal

In Kopchik v. Town of East Fishkill, New York, 2018 WL 6767369 (2d Cir. Dec. 26, 2018) (Summary Order), the court, inter alia, vacated summary judgment in defendant’s favor on plaintiff’s retaliation claim under the Age Discrimination in Employment Act (ADEA).

In sum, plaintiff – the Supervisor of Buildings and Grounds of the Town of East Fishkill – filed a charge of age discrimination with the EEOC. After he filed his charge, the Town Board eliminated all building and ground maintenance positions, including plaintiff’s position, and consolidated those positions into a separate department. It permitted that department to rehire all employees whose positions were eliminated, except plaintiff. While defendant contemplated another resolution that would permit rehiring plaintiff for another position, that position was less desirable because (1) it was a lower-level position than plaintiff’s prior position, and (2) plaintiff lacked the necessary license for it, and plaintiff would find it difficult to obtain said license because of the ongoing impact of an on-the-job injury. Unfortunately, the defendant did not offer plaintiff a job he was physically able to do, and plaintiff retired the day before he would have been terminated.

Plaintiff sued, alleging retaliation under the ADEA and disability discrimination. Here I will discuss the court’s evaluation of plaintiff’s ADEA retaliation claim.

Here is the law, as summarized by the court:

To state a claim for retaliation under the ADEA, a plaintiff must plausibly allege that “(1) defendants discriminated—or took an adverse employment action—against him, (2) ‘because’ he has opposed an[ ] unlawful employment practice” regarding his age. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing Title VII, 42 U.S.C. § 2000e–3(a) ); see Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (stating that the same standards apply to Title VII and ADEA claims).

“As for causation, a plaintiff must plausibly plead a connection between the act and his engagement in protected activity.” Vega, 801 F.3d at 90–91. At the pleading stage, this requires only that a plaintiff “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015). A causal connection in retaliation claims can be shown “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Id. (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) ).

*3 Moreover, “for an adverse retaliatory action to be ‘because’ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega, 801 F.3d at 90. “ ‘[B]ut-for’ causation does not[, however,] 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.”

Applying the law, the court held that plaintiff plausibly alleged retaliation, and therefore vacated the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6).

From the Order:

Here, even if Kopchik’s allegations as to causation relied on the timing of the Town’s actions, we do not agree that they failed to plausibly support a causal inference. A nine-month gap may not be too long to support such an inference, particularly given that Kopchik alleges the Town’s mechanism for retaliating was a Town Board resolution.4 It is plausible that the significant restructuring undertaken by the Town and resulting in the loss of Kopchik’s position would take longer to plan and formally adopt.

Moreover, Kopchik alleges additional facts to plausibly suggest why the Town may have waited nine months. He alleges that the 90-day period within which he could file suit as to his 2014 EEOC complaint expired just two months before the Town Board passed its resolution. He claims that the Town may have waited until this time to pass its resolution so that he could no longer bring suit as to those claims. The district court considered this argument and held that, if the Town were waiting until the 90-day period expired, it would have been implausible for the Town to wait another two months to retaliate against Kopchik. We disagree. Assuming the truth of Kopchik’s allegations, it would be plausible for the Town to let some further time pass, so as to conceal its motivation.5

*4 In any event, Kopchik does not rely on temporal proximity alone. Rather, drawing all reasonable inferences from the complaint, Kopchik plausibly alleges that after he filed his EEOC age-discrimination charge, the Town essentially rehired into similar positions all its ground- and building-maintenance workers except Kopchik, as a pretextual means to terminate his employment. It is plausible that the Town did so in response to the EEOC charge. These allegations of discriminatory treatment are thus sufficient to state the causation element of an ADEA retaliation claim. See Littlejohn, 795 F.3d at 319.

The district court also held that, in the absence of indirect evidence of discriminatory treatment based on temporal proximity, and of other evidence of retaliatory animus, Kopchik was required to “show he was treated differently from a similarly situated employee who did not engage in a protected activity,” and that he failed to do so. App’x 133. The district court found that the “complaint implies … that plaintiff was not similarly situated” to the other Town workers whose maintenance positions were eliminated because Kopchik was the only supervisor. Id. The district court cited to our decision in Richards-Byers v. N.Y.C. Department of Finance, 449 Fed. Appx. 55, 57 (2d Cir. 2011). There, invoking the familiar McDonnell Douglas framework, we stated that one of the ways the plaintiff might have made out a prima facie retaliation case at summary judgment was to provide “circumstantial evidence that she was treated differently from any similarly-situated employee.” Richards-Byers, 449 Fed. Appx. at 57.

As we explained in Littlejohn v. City of New York, however, a plaintiff “need only give plausible support to a minimal inference of discriminatory motivation” at the pleading stage. Littlejohn, 795 F.3d at 316. Kopchik has done so here.

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