Disability-Based Retaliation Claim Dismissed; Causation Undermined by Nine-Month Gap Between Protected Activity and Adverse Action

In Vega v. Department of Education, 2020 WL 6727803 (S.D.N.Y. Nov. 16, 2020), the court, inter alia, dismissed plaintiff’s retaliation claim.

From the decision:

Vega alleges that she was terminated in March 2019 in retaliation for filing her previous case, Vega I, in July 2018. Doc. 30 ¶ 20. To sufficiently plead a prima facie case of retaliation under the ADA, a plaintiff must show: “(1) [she] was engaged in an activity protected by [the applicable statute], (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action.” Palummo v. St. Vincent’s Med. Ctr., 4 F. App’x 99, 102 (2d Cir. 2001). A causal connection can be established: “(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.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (internal citation omitted). “To show causation indirectly by means of temporal proximity, the temporal proximity must be very close.” Vega I, 2020 WL 1505564, at *10 (internal quotations omitted); see also Galimore v. City Univ. of N.Y. Bronx Cmty. Coll., 641 F. Supp. 2d 269, 288 (S.D.N.Y. 2009).

Even if Vega did refute the DOE’s argument, the alleged act of retaliation occurred approximately nine months after the alleged protected activities. This gap in time does not satisfy the temporal proximity requirement. See Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (“[D]istrict courts within the Second 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.”). Additionally, to the extent that Vega is alleging that she was fired in retaliation for filing this lawsuit in July 2019, that assertion is illogical because she was terminated prior to the commencement of this suit.

Therefore, the court held that plaintiff did not meet her burden of plausibly alleging retaliation based on her disability.

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