Retaliation Claim, Arising From Termination Following Sexual Harassment Complaint, Dismissed

In Burke v. Jose Luis Villa, Sadrac Louis, Bonefish Grill et al, No. 19-CV-2957, 2021 WL 5591711 (E.D.N.Y. Nov. 30, 2021), the court, inter alia, granted defendants’ motion for summary judgment dismissing plaintiff’s retaliation claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

Plaintiff alleged that defendants terminated him for making a sexual harassment complaint.

The court summarized the legal standard – including the applicable “burden-shifting framework” – as follows:

Title VII forbids an employer from retaliating against an employee because of the employee’s opposition to “any practice made an unlawful” by Title VII. 42 U.S.C. § 2000e-3(a). The burden-shifting framework laid out in McDonnell Douglas, 411 U.S. 792, 802 (1973), governs retaliation claims. To make out a prima facie case of retaliation, a plaintiff must make four showings: that (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action.” If the employer demonstrates a legitimate, non-retaliatory reason, then “the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer’s proffered non-retaliatory reason is pretextual and that retaliation was a substantial reason for the adverse employment action. [Citations and internal quotation marks omitted.]

Here, plaintiff satisfied the first three elements of his prima facie case; accordingly, the court’s decision turned on the fourth element (causation).

This, unfortunately, is where plaintiff’s case fell short:

“As for causation, a plaintiff must plausibly plead a connection between the act and his engagement in protected activity.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015). “A retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action.” Id. The Second Circuit has explained that although it “has not drawn a bright line defining … the outer limits beyond which a temporal relationship is too attenuated to establish causation,” it has “previously held that five months is not too long to find the causal relationship.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010).

Defendants fired Burke within three months of his complaint and failed to make any kind of record as to the circumstances of his termination. In addition, the record indicates that Sorenson, skeptical of Burke’s complaint, conducted a pro forma investigation—Villa testified that Sorenson described Burke’s complaint as an excuse for missing work and Sorenson neglected to interview relevant employees like Donell Ray. Thus, Burke satisfies his burden to show causation and makes his prima facie case. See Hicks, 593 F.3d at 164 (“The plaintiff’s burden in this regard is de minimis.”).

But Burke’s retaliation claim ends there. Defendants provide a legitimate, non-retaliatory reason for Burke’s termination, namely, his absenteeism: Burke missed the Father’s Day shift under suspicious circumstances, back-to-back weekend shifts in August, and the Sunday shift in September. And Burke fails to meet his burden and show “that retaliation was the determinative factor” in his termination. See Summa, 708 F.3d at 129. He offers no direct evidence to prove that a discriminatory motive caused Defendants to fire him. Nor does he offer any circumstantial evidence showing that Defendants’ stated reason was pretext for discriminatory retaliation.

To rebut Defendants’ non-retaliatory reason for termination, Burke relies on temporal proximity, Sorenson’s alleged hostility to Burke’s complaint, and Sorenson’s inconsistent testimony about the investigation. But the three-month gap from complaint to termination represents a weak temporal connection in the absence of any aggravating factors relating to Burke’s complaint or the circumstances surrounding his complaint. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (holding that one month between complaint and discharge “without more … is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext”). And Burke’s reliance on Sorenson’s investigation-related testimony does little to bolster this tenuous temporal connection. Sorenson’s testimony, though inconsistent as to the investigation, is uncontradicted as to Burke’s termination: Defendants fired Burke because he frequently missed work. Cf. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (holding that “inconsistent and contradictory explanations for the plaintiff’s termination, combined with the close temporal proximity between” plaintiff’s complaint and termination, were sufficient to create a genuine dispute of material fact).

The court is interested primarily “in what motivated the employer.” Mendez-Nouel v. Gucci Am., Inc., 542 F. App’x 12, 14 (2d Cir. 2013) (quoting McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)). And the “nondiscriminatory reason for [Burke’s] termination [is] abundant.” See id. When viewing the evidence in the light most favorable to Burke, he proffers a weak issue of fact, based on speculation, about why Sorenson fired him. See id. (affirming “summary judgment on the basis that the record contained only a ‘weak issue of fact’ as to pretext and the evidence of a legitimate, nondiscriminatory reason for [ ] termination was abundant”) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000))). “[A] plaintiff must come forward with some evidence of pretext in order to raise a triable issue of fact,” and Burke produces insufficient evidence to meet his burden.

Based on this, the court granted defendants’ motion for summary judgment on plaintiff’s retaliation claims.

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