Title VII Retaliation Claim Against NYS DMV Dismissed; Eight-Month Gap Defeats Causation

In Sotolongo v. The New York State Department of Motor Vehicles et al, 19-CV-3282, 2020 WL 4261194 (E.D.N.Y. July 24, 2020) (J. Garaufis), the court, inter alia, granted defendants’ motion to dismiss plaintiff claim of retaliation asserted under Title VII of the Civil Rights Act of 1964.

In this case, as in many others, plaintiff’s retaliation claim falters because there is an insufficient showing that plaintiff established an “adverse action” was “caused” by plaintiff’s engaging in “protected activity.”

The court summarized the applicable black-letter law:

Title VII makes it “an unlawful employment practice for an employer to discriminate against” one of its employees because the employee “has opposed any practice made an unlawful employment practice by this subchapter, or … testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2300e-3(a). Title VII retaliation claims are “evaluated under the familiar McDonnell Douglas three-step burden-shifting analysis.” Jones v. Target Corp., 792 F. App’x 54, 55 (2d Cir. 2019) (summary order). To establish a prima facie case for retaliation under Title VII, “an employee must show (1) participation in a pro-tected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.”

Applying the law, Judge Garaufis explained:

Sotolongo’s claim fails because she has not established a causal connection between filing the complaint with the NYSDHR and the alleged material adverse employment actions she suffered.3 “A causal connection in retaliation claims can be shown either[:] (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.” Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019).

Here, Sotolongo fails to allege that the filing of her complaint with the NYSDHR4 was followed closely by discriminatory treatment. “Although the Second Circuit has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship, district courts in this Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation.” King v. Block Institute, Inc., No. 17-cv-7318 (NGG), 2020 WL 2523245, at *7 (E.D.N.Y. May 18, 2020). Here, Sotolongo filed her complaint with the NYSDHR in April 2017 but the amended complaint does not allege that any retaliatory conduct occurred until December 2017, a gap of eight months. (See Am. Compl. ¶¶ 16, 20.) That is too long of a time to establish causation indirectly. Furthermore, Sotolongo has neither alleged that fellow employees who engaged in similar protected activity were also treated unfairly nor does she allege facts supporting direct evidence of retaliatory animus on the part of Defendants.

Based on this, the court concluded that plaintiff’s allegations did not establish a prima facie case of retaliation under Title VII.

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