When you’re pursuing a retaliation case in New York, it’s important to keep a few things in mind. Here are a quick three: (1) even if your underlying discrimination (or harassment) claim fails — even at the summary judgment phase — you can still win your retaliation claim, (2) even if your employer has put forward a legitimate basis for the adverse action it took and a viable theory as to why your claim is not legitimate, you can still successfully make out a retaliation claim, and (3) if you believe you were the target of illegal retaliation at work, you need to get in touch with an experienced New York employment discrimination lawyer.
A recent retaliation case from upstate illustrates the points briefly outlined above. The worker, J.D., was a manager working for a chain of auto repair and maintenance stores, overseeing 10-14 stores.
In late 2019, one of the manager’s female subordinates, S.M., informed him that she “had been touched inappropriately by a co-worker” on multiple occasions that day. According to the employer, the manager badly mishandled the investigation into the woman’s complaint, failing to follow company policies and engaging in deceitful behavior.
The employer asserted that J.D. told his manager that the woman “walked off the job,” not that she experienced alleged sexual harassment. The employer also accused the manager of trumping up bogus “write-ups” about S.M. to make it appear that she had a history of time and attendance violations at work.
Based on these alleged transgressions, the employer decided to fire J.D. He, however, identified a separate basis as the real reason the employer decided to terminate him: his age (he was in his mid-50s when the sexual harassment incident and investigation took place) and his complaints about age discrimination.
J.D. had complained about the age-related comments and jokes he allegedly endured at work. J.D.’s manager allegedly called him “John Wayne” as a way of denoting an “old gunslinger,” made fun of J.D.’s computer skills, and asked him when he “had to ‘pick [his] wife up from Girl Scouts.'”
Fired Just Three Days After He Complained About Age Discrimination
The manager sent these complaints to the Senior VP of Human Resources as well as a regional manager. The date on that email was November 17, 2019. Exactly three days later, the employer notified J.D. of his immediate termination.
The manager’s ability to survive the employer’s motion for summary judgment is illustrative of the importance of including a retaliation claim in one’s discrimination and/or harassment lawsuit whenever the facts support it.
In J.D.’s lawsuit, the age discrimination claim failed. The alleged comments and jokes were not sufficiently extreme to qualify as severe and did not occur frequently enough to constitute pervasive harassment. In short, the manager’s assertions did not make out a viable age discrimination claim.
They did, however, make out a viable retaliation claim. The decision-makers who fired J.D. allegedly were aware of J.D.’s November 17 email and carried out the termination of J.D.’s employment less than 72 hours later.
Those kinds of facts can potentially be very powerful in a retaliation case. The law says that to have a viable retaliation case, you must have a sufficient linkage between your protected activity (such as sending an email complaining about age discrimination) and the adverse action you endured, which is called a “causal connection.”
There are multiple different ways you can satisfy this causal connection requirement, but showing the adverse action followed your protected activity in very short order — what the law calls” temporal proximity” — can be a very powerful way to do so. A gap of just three days, as J.D. alleged, is generally considered to be a very high degree of temporal proximity and very strong evidence of a causal connection.
Additionally, J.D.’s success is a reminder that your theory of the case does not have to be the only viable theory or even the best theory… it just has to be a version that a reasonable juror potentially could adopt. As the court in J.D.’s case put it, “a reasonable juror could certainly view Plaintiff’s complaints as an insincere attempt to salvage a job that seemed to be slipping away” but that same juror “could also reasonably infer that Plaintiff’s complaints about age discrimination led to Plaintiff’s firing.”
The law says that you have the right to voice complaints about discrimination or harassment you’ve encountered at work without incurring retribution for speaking out. That’s true even if it turns out that the alleged discrimination or harassment you endured didn’t rise to the level of illegal conduct. The knowledgeable New York employment law attorneys at Phillips & Associates are here to help, representing workers who’ve been harmed by discrimination, harassment, retaliation, or all of the above. To find out more, contact us online or at (866) 229-9441 to set up a free and confidential consultation today.