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finding eight-and-a-half month time lapse did not give rise to an inference of causation
Summary of this case from Dibiase v. BarberOpinion
No. 00 Civ. 2190 (MBM).
February 8, 2001.
ANNE C. VLADECK, ESQ. (Attorneys for Plaintiff), New York NY.
CLAIRE M. SPROULE, ESQ., PETER D. STERGIOS, ESQ. (Attorneys for Defendant) New York NY.
OPINION ORDER
Paul Donlon sues his former employer, Group Health Incorporated ("GHI"), alleging that he was fired in retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., New York State Executive Law § 296 et seq., and New York City Administrative Code § 8-107 et seq. GHI moves for summary judgment. For the reasons stated below, the motion is denied.
I.
The following facts are presented in the light most favorable to Donlon, the nonmoving party. Donlon began working for GHI as an analyst on May 22, 1995. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1) On April 30, 1997, he resigned. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2) Based on the recommendation of other GHI employees, he was rehired as a marketing manager less than eight months later, on December 15, 1997. (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3) On January 12, 1998, Donlon, Celia Jackson, Angela McGarrigle, and David Kisacky submitted a memorandum to, among others, Thomas Nemeth, Senior Vice President of Human Resources, complaining of sexually charged comments and conduct of Neil Pinsker, a Senior Director. (Def. 56.1 ¶¶ 4, 5; Pl. 56.1 ¶¶ 4, 5; Nemeth Dep. at 10; Pinsker Dep. at 28-29) GHI's Human Resources Department interviewed the complainants, Pinsker, and other GHI employees. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6) On March 2, 1998, Nemeth met with three of the four complainants and informed them that the investigation was closed. (Jackson Aff. ¶ 11) A memorandum was sent to the complainants on March 5, 1998, which stated that "we were unable to determine if a violation of Title VII occurred." (Pl. 56.1 Stat. ¶¶ 6, 7; Nemeth Aff. Ex. E) Although Nemeth claimed that GHI took steps to ensure that Pinsker was appropriately counseled, (Nemeth Aff. ¶ 6, Ex. E) Pinsker in fact was not counseled. (Pinsker Dep. at 74; Pl. 56.1 Stat. ¶ 7)
In May 1998, Donlon complained that Pinsker, among other things, had changed the scope of a project Donlon was working on but refused to extend the deadline, and had sent memoranda to senior management criticizing Donlon for failing to attend a meeting and circulating a report without Pinsker's approval — conduct Donlon saw as retaliation. (Pl. 56.1 ¶ 12; Vladeck Aff. Ex. E; Nemeth Dep. at 109) Nemeth then met with Donna Lynne, Pinsker's supervisor, and met with Donlon again on June 4, 1998. (Def. 56.1 ¶¶ 13, 14; Pl. 56.1 ¶¶ 13, 14) Nemeth explained to Donlon that Pinsker could manage his department as he saw fit and reiterated that the complaint had been investigated and the investigation was closed. (Pl. 56.1 ¶ 15; Donlon Aff. ¶ 16; see also Nemeth Aff. ¶ 12)
On June 15, 1998, GHI hired Susan Grimbilas as Vice President for Strategic Planning. (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19) At the time Grimbilas was hired, the supervisory structure was as follows: Donlon reported to Celia Jackson; Jackson reported to Pinsker; Pinsker reported to Grimbilas; Grimbilas reported to Lynne. (Grimbilas Dep. at 23, 39; Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21) When she joined GHI, Grimbilas met with the employees in the department to ascertain their responsibilities. (Def. 56.1 ¶ 25; Pl. 56.1 ¶ 25) In July 1998, Donlon began reporting direct to Grimbilas. (Def. 56.1 ¶ 24; Pl. 56.1 ¶ 24) On October 1, 1998, Grimbilas met with Donlon and informed him that his position was being eliminated as a result of a reorganization. (Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35)
II.
Retaliation claims under Title VII are examined under a three-step burden shifting analysis. Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (citations omitted) First, the plaintiff must make a prima facie case of retaliation. Id. (citations omitted). The defendant then has the burden of articulating a legitimate, non-retaliatory reason for the challenged action. Id. (citations omitted). For purposes of a motion for summary judgment, if the defendant cites such a reason, the plaintiff then must present evidence sufficient to raise a fact issue as to whether retaliation was a motivating factor for the complained of action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (citing Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir. 1997)); see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citations omitted). For purposes of this motion, the same standards apply to plaintiff's claims under the New York State Human Rights Law and the Administrative Code of the City of New York. See Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Burger v. Litton Indus., Inc., 1996 WL 421449, at *18-19 (S.D.N.Y. 1996)
To establish a prima facie case of retaliation, Donlon must show that: (1) he was engaged in a protected activity; (2) GHI was aware of his participation in such activity; (3) GHI took adverse action against him; and (4) a causal connection existed between his protected activity and the adverse action taken by GHI. See Gordon, 232 F.3d at 116. "The burden of proof that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion `at the prima facie stage is de minimis.'" Chambers v. TRM Copy Ctrs. Corp. 43 F.3d 29, 37 (2d Cir. 1994) (quoting Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988)); see also Richardson v. New York State Dept. of Corrections, 180 F.3d 426, 444 n. 4 (2d Cir. 1999)
Protected activity has been described by the Second Circuit to include "action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir. 2000). "[A]ction taken to protest" such discrimination includes making complaints to management. Id. (quoting Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Furthermore, Donlon need show only that, when making the complaint, he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). It is undisputed that on January 12, 1998, Donlon and three other GHI employees submitted a written complaint to GHI's Human Resources Department. The complaint described Neil Pinsker's comments about employees sexual activity and alleged that Pinsker ogled female co-workers. (Def. 56.1 ¶¶ 4, 5; Pl. 56.1 ¶¶ 4, 5; Nemeth Aff. Ex. D) Donlon has presented sufficient evidence to establish his reasonable belief at the time he signed the complaint that Pinsker's behavior violated the law; he has established the first element of his prima facie case. Compare Reed, 95 F.3d at 1178-80 (upholding jury finding of a reasonable belief that employer had violated the law when plaintiff complained of remarks made to her by a male co-worker)
To prove the second element, Donlon need show only that GHI had a general corporate knowledge that he engaged in protected activity. See Gordon, 232 F.3d at 116-17. The complaint was submitted direct to GHI's Human Resources Department. Further, GHI showed its understanding that Donlon's complaint was directed at conduct prohibited by Title VII when it responded to the complaint by stating that it was "unable to determine if a violation of Title VII occurred." (Def. 56.1 Stat. ¶ 4; Nemeth Aff. Ex. E); see Galdieri-Ambrosini v. National Realty Devel. Corp., 136 F.3d 276, 292 (2d Cir. 1998) ("[I]mplicit is the requirement that [the employer] understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII.")
Neither party disputes that on October 1, 1998, GHI fired Donlon. (Def. 56.1 ¶ 35; Pl. 56.1 ¶ 35) Accordingly, Donlon has established the third element of his prima facie case, that GHI took adverse action against him.
Donlon has established also the fourth element of his prima facie case — a causal connection between the protected activity and the adverse action. A plaintiff may establish a causal connection indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct. A plaintiff may also prove a causal connection directly through evidence of retaliatory animus. See Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991). Donlon argues that a causal connection between the complaint and his firing can be inferred from its having occurred shortly after he engaged in protected activity. However, the lapse of eight-and-one-half months between Donlon's submission of the written complaint and his firing is not sufficient, by itself, to imply causation. Neither is the lapse of four months between Donlon's last meeting with Nemeth about Pinsker in early June 1998, and Donlon's firing on October 1, 1998, short enough to imply a causal connection. (Donlon Aff. ¶¶ 4, 15, 16, 29); See Conner v. Schnuck, 121 F.3d 1390 (10th Cir. 1997) (finding a time lapse of four months insufficient, by itself, to create an inference of causation) (cited favorably by the Second Circuit in Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999)). Donlon's reliance on Grant v. Bethlehem Steel Corp., 622 E.2d 43, 45-46 (2d Cir. 1980) for the proposition that a lapse of eight months is sufficient to create an inference of causation is misplaced. In Grant, the defendant allegedly retaliated by failing to give the plaintiffs requested work assignments. The defendant had no opportunity to retaliate immediately after the plaintiffs' protected activity because the plaintiffs did not request work assignments for up to eight months after filing their complaint. Id.
Nonetheless, Donlon meets his de minimis burden of showing a causal connection indirectly by showing that the other employees who signed the complaint with him received similar disparate treatment. See Taitt v. Chemical Bank, 849 F.2d 775, 778 (2d Cir. 1988) (inferring causation from testimony of another employee who claimed to have suffered similar treatment). Three of the four people who signed the complaint no longer work at GHI. Although Kisacky remains, Jackson stated in her affidavit that she was "compelled to resign" in July 1999 after she was demoted and given no supervisory authority. (Jackson Aff. ¶ 28) Jackson believes that these actions were taken in retaliation for the complaint. (Id.) McGarrigle resigned in April 1998 pursuant to a confidential severence agreement. (Nemeth Aff. ¶ 8; Nemeth Dep. at 125) Pinsker testified that McGarrigle did not leave voluntarily. (Pinsker Dep. at 94)
GHI argues that a causal connection cannot be established because Grimbilas, the person who fired Donlon, did not know that Donlon had signed the complaint. See Gordon, 232 F.3d at 117 ("The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection, countering plaintiff's circumstantial evidence of proximity or disparate treatment."). However, both Donlon and Jackson claim in their affidavits that they told Grimbilas of their complaint, which distinguishes this case from Brown v. Time, Inc., 1997 WL 231143, at *8 (S.D.N.Y. 1997), cited by GHI. (Donlon Aff. ¶ 22; Jackson Aff. ¶ 21) Furthermore, Lynne, who at a minimum approved Grimbilas's decision to fire Donlon, knew that Donlon had signed the complaint. (Grimbilas Dep. at 88; Lynne Dep. at 39) Donlon's showing that three of the four employees who signed the complaint no longer work at GHI, and his claim that he told Grimbilas he had signed the complaint, show enough of a causal connection between his protected activity and GHI's decision to fire him.
Once a plaintiff establishes a prima facie case, as Donlon has done, the burden shifts to the defendant to present a legitimate, non-retaliatory reason for the adverse action taken against plaintiff. "The burden is one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000). GHI asserts that Donlon was fired as part of a corporate reorganization. Specifically, Grimbilas claims that she determined "that there were too many layers of supervision within the department." (Grimbilas Aff. ¶ 4) Therefore, she decided to eliminate three manager level positions. (Grimbilas Aff. ¶ 10) Because she found that Donlon's analytical skills were weak, that he frequently showed up late for meetings, and on some occasions did not show up at all or arrived unprepared to participate, she decided to eliminate Donlon's position as Marketing Manager. (Grimbilas Aff. ¶¶ 12-14) According to her affidavit, Grimbilas, based on the same criteria, decided also to fire James Caldwell, Manager of Dental Products, and Herb Feuer, Manager of Behavioral Management Programs. (Grimbilas Aff. ¶ 15) GHI has carried its burden of producing a legitimate, non-retaliatory reason for firing Donlon.
As discussed above, if a defendant produces a non-retaliatory reason for the adverse action, then, to survive summary judgment, the plaintiff must produce sufficient evidence to support a rational finding "that retaliation 'played a motivating role in, or contributed to, the employer's decision.'" See Gordon, 232 F.3d at 117 (quoting Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir. 1997)); see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). Donlon has carried this burden in two ways. First, he presents evidence that GHI's asserted non-retaliatory reason for firing him is false. As noted above, Grimbilas claims that she fired two other managers as part of the reorganization — James Caldwell and Herb Feuer. However, Caldwell and Feuer were both placed on Grimbilas's "Proposed Organization" chart. (Grimbilas Aff. Ex. C) The only people designated for termination on the actions list that accompanied the chart were Donlon and Jackson. (Id.) Although Lynne, who approved Grimbilas's decisions to fire employees, testified that Caldwell and Feuer were fired as part of the reorganization, she claimed later in her deposition that Caldwell was fired for poor job performance, and that his position, although "vacant or not in existence" for a year and a half, was eventually filled by someone else. (Lynne Dep. at 94, 112-14) Lynne also later explained that Herb Feuer was fired pursuant to a combination of poor performance and a ten percent company-wide reduction in force that was unrelated to the alleged reorganization that resulted in the firing of Donlon. (Lynne Dep. at 115, 121-22) "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 120 S.Ct. at 2108 (2000); see also Schnabel v. Abramson, 232 E.3d 83, 89-91 (2d Cir. 2000) (holding that determination of whether proof that nondiscriminatory reason was pretextual is sufficient to preclude summary judgment must be made on a case-by-case basis)
As noted above, Donlon also presents evidence that three of the four employees who signed the complaint no longer work for GHI. Jackson claims that she was demoted, stripped of her supervisory authority as a result of the complaint, and was compelled to resign." (Jackson Aff. ¶ 28) The testimony of a witness whose allegations of retaliation are similar to plaintiff's has been characterized by the Second Circuit as smoking gun" evidence of a retaliatory discharge. Saulpagh v. Monroe Community Hosp., 4 F.3d 134, 141 (2d Cir. 1993).
Grimbilas's claim that she was unaware of Donlon's participation in the complaint is relevant to the issue of whether retaliation motivated the decision to fire Donlon, but Donlon's claim that he discussed the complaint with Grimbilas creates an issue of fact as to what Grimbilas knew. See Gordon, 232 F.3d at 117. Furthermore, Lynne, who did know about Donlon's participation in the complaint, discussed and approved Grimbilas's proposed termination of Donlon. (Grimbilas Dep. at 202-03; Lynne Dep. at 39)
A reasonable jury could conclude that Donlon told Grimbilas about his participation in the protected activity and that the reorganization was merely a pretext for Donlon's firing. Such a jury could consider also that three of the four people who signed the complaint no longer work at GHI, and that one of them testified that she was retaliated against for the complaint, and conclude that Donlon was retaliated against for engaging in protected activity.
Summary judgment is not appropriate if there is a genuine issue as to any material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). GHI has failed to demonstrate the absence of a genuine issue of material fact as to whether retaliation was a motivating factor in GHI's decision to fire Donlon.
For the reasons stated above, GHI's motion for summary judgment is denied.