Retaliation Claim Survives Summary Judgment; Court Cites (e.g.) Weaknesses and Inconsistencies in Defendants’ Proffered Non-Retaliatory Reasons

In Olivier v. County of Rockland et al, No. 15-CV-8337 (KMK), 2019 WL 2502349 (SDNY June 17, 2019), the court held that plaintiff presented sufficient evidence to overcome defendants’ motion for summary judgment.

The court explained the legal standard applicable to the third (“pretext”) step of the three-step burden-shifting framework applicable to Title VII retaliation claims.

From the decision:

“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.” Zann Kwan, 737 F.3d at 845–46 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). “ ‘But-for’ causation,” however, “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.” Id. at 846. “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[,] [as] [f]rom such discrepancy, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” Id. It bears noting that in considering these factors, the Second Circuit has cautioned that “[t]he determination of whether retaliation was a ‘but-for’ cause … is particularly poorly suited to disposition by summary judgment, because it requires weighing of the disputed facts, rather than a determination that there is no genuine dispute as to any material fact.”

Applying this standard, the court concluded that “Plaintiff submits enough evidence, although barely, to raise disputes about weaknesses and inconsistencies in Defendants’ proffered reasons so as to allow a reasonable juror to conclude that Defendants’ proffered reasons were a pretext.”

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