Retaliation Claim Resurrected from Dismissal; 2 Months Sufficient to Allege Causation

In Rivera v. JP Morgan Chase, 2020 WL 2787622 (2d Cir. May 29, 2020) (Summary Order), the U.S. Court of Appeals for the Second Circuit, inter alia, vacated the dismissal of plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.

In sum, plaintiff – who is of Ecuadorian national origin – asserted that his supervisors at defendant JP Morgan Chase gave him less work than non-Ecuadorian bankers, verbally bullied him, suspended him, and terminated him in retaliation for his complaints to human resources and the Equal Employment Opportunity Commission.

As to his retaliation claim, the court explained:

Liberally construing Rivera’s third amended complaint in conjunction with his EEOC complaint, we conclude that he plausibly alleged that he complained to human resources in June 2010 that his supervisors were discriminating against him due to his national origin, and that JPMC retaliated against him in July 2010 by, among other things, “strip[ping] him of his duties,” “divert[ing his] new clients to other bankers,” suspending him, and terminating his employment. See App’x at 20, 28-29.3 The district court properly concluded that Rivera’s complaint to human resources and his EEOC complaint were protected activity and that Rivera’s allegations of discipline, suspension, and termination were adverse employment actions. The district court correctly reasoned that, for retaliation purposes, an adverse employment action is “any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination,” and that standard “covers a broader range of conduct than the adverse-action standard for claims of discrimination.” App’x at 89 (internal quotation marks omitted) (quoting Vega, 801 F.3d at 90).

*3 The district court, however, erred in concluding that Rivera failed to plausibly allege a causal connection between the protected activity and the adverse employment action. In his EEOC complaint, Rivera alleged that adverse employment actions began one to two months after he complained to human resources. At the pleading stage, “[a] retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action.” Vega, 801 F.3d at 90; see Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010) (“Close temporal proximity between the plaintiff’s protected action and the employer’s adverse employment action may in itself be sufficient to establish the requisite causal connection between a protected activity and retaliatory action.”). Though there is no bright-line rule on temporal proximity, this Court has held that a one to two month period between the protected activity and adverse employment action is generally sufficient to make a prima facie causation showing. See, e.g., Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (within five months); Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 555 (2d Cir. 2001) (roughly four months); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (less than two months). Here, in light of Rivera’s pro se status, drawing all reasonable inferences in his favor and liberally construing the pleadings, we conclude that he plausibly pled a claim for retaliation based on his allegation that a range of adverse employment actions began one to two months after his complaint to human resources. Accordingly, we vacate the district court’s dismissal of Rivera’s retaliation claim and remand for further proceedings on this issue.

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