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Employment Retaliation Cannot Be Based On Protected Conduct The Employer Never Knew About

by | Oct 12, 2022 | Age Discrimination |

As our readers know, Title VII of the Civil Rights Act of 1964 makes it unlawful for employer to discriminate in employment decisions based on an employee’s based on race/color, religion, sex (including pregnancy and LGBTQ+ status), national origin, age, and disability. This means that an employee cannot be fired, demoted, paid less, refused a job or given less favorable or more difficult job assignments based on one of these protected classes. (Best Law Read: How Do You Win A Wrongful Termination Claim?; All Hope Is Not Lost: How To Bring An Employment Discrimination Lawsuit; How Do You Win A Discrimination At Work Lawsuit?).

In addition to the prohibition on discriminatory conduct, Title VII further prohibits employers from retaliating against employees who have reported, opposed, or participated into an investigation into discrimination based on a protected class. (Best Law Read: How Do I Prove Illegal Retaliation By My Job Under Title VII?; Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?; Retaliation Is Still Easier To Prove Than Discrimination). Importantly, under Title VII, the anti-retaliation protection kicks in regardless of whether an employee reports, opposes, or participates in an investigation into discrimination directed at himself/herself or any other employee.

In today’s blog, we take a look at Gonzalez v. Nyu Langone Hospitals, No. 21-2569, 2022 WL 4372199, at *1 (2nd Cir. Sept. 22, 2022), which addresses these issues.

What evidence do I need to show to prove retaliation?

Wrongful Termination Lawyer Answer: In order to show a prima facie case of retaliation under Title VII, am employee must submit sufficient admissible evidence to allow a trier of fact to find: (1) conduct by the employee that is protected activity under Title VII; (2) the employer’s decision makers were aware of the employee’s protected conduct; (3) an adverse employment action of a nature that would deter a reasonable employee from making or supporting a discrimination claim; and (4) the adverse employment action was causally connected to the protected activity. Gonzalez at *1 (citing Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014)) (Best Law Read: What Does Prima Facie Mean?; What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?).

How do I prove a causal connection between my report of discrimination and being fired?

Top Employee’s Rights Attorney Answer: In Gonzalez, the United States Court of Appeals for the Second Circuit held:

There are two ways in which a plaintiff can demonstrate a causal connection: “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 “directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Although “[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise,” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

Id. at *1.

What happened in Gonzalez?

Best Employment Discrimination Attorney Answer: Aida Gonzalez employed by of NYU Langone Hospitals as a dietary aide for a long period of time. Between 2010 and 2017, Gonzalez got in trouble several times, including for improper clocking in and out and “no call no shows.” Her managers frequently warned Gonzalez to correct these work issues or face disciplinary actions up to and including being fired. On February 7, 2017, the employer fired Gonzalez. The reasons given for the termination of employment included a no call no show from three weeks earlier, Gonzalez’s purported dishonestly regarding her manager’s approval of her time off request, and a final warning Gonzalez received in October 2016 relating to another no call no show.

In her lawsuit, Gonzalez claimed that the termination was really related to her providing translation services for another employee for an initial consultation with an employment attorney regarding that employee’s potential discrimination claims. The consultation in question took place on October 18, 2016 – almost four months before she was fired.

Gonzalez hit two major problems. First, because of she had an ongoing history of misconduct that had been the subject of discipline before engaging in the protected activity, the United States Court of Appeals for the Second Circuit held that she cannot show – without further evidence – that the protected activity caused the termination of her employment:

We agree with the district court that Gonzalez fails to proffer sufficient evidence for a jury to infer a causal connection between her protected activity and termination. Gonzalez therefore does not meet her burden of making out a prima facie case of retaliation. Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 2010—long before her protected activity in 2016—prevent her from establishing an indirect causal connection. Although Gonzalez argues that the “temporal proximity” between her protected activity and her termination gives rise to an inference of discrimination, … her argument fails because her termination was preceded by “gradual adverse job actions [that] began well before [Gonzalez] had ever engaged in any protected activity.” Moreover, Gonzalez no call no showed and was disciplined a week before she began assisting Troche with her lawsuit, and she no call no showed again a week before Troche filed her lawsuit and two weeks before NYULH was served with the complaint. Given Gonzalez’s history of performance issues and discipline, temporal proximity, without more, is insufficient to raise an inference of discrimination.

Id. at *2 (citation omitted). Of course, this makes sense. An employee cannot wipe away ongoing problems just by engaging in a protected activity and the continue to no-call, no-show without consequences.

The next problem that Gonzalez ran into was that she had no evidence that the supervisors that disciplined her had any knowledge of the fact that she helped at the consultation. Obviously, no managers or supervisors were present at the consultation. “Even in her own deposition testimony, Gonzalez merely speculates that her supervisor, Rebecca Ortiz, was told about Gonzalez’s assistance of Troche by another employee, Rosa Perez, without any factual basis or specificity as to timing. Gonzalez asserting that Perez is an ‘informer’ and has Ortiz ‘on speed dial,’ but conceding that she had no knowledge that Perez told Ortiz anything.” Id. at *2. At most, Gonzalez showed that the employer was served with Troche’s lawsuit four days before firing her, but the Court rejected this evidence because “the complaint does not mention Gonzalez or otherwise alert NYULH of her protected activity.” As a result, Gonzalez was unable to present any evidence that the employer knew about the protected activity; and if the employer does not know about such protected activity, it cannot fire an employee because it upset about that unknown protected activity.

Based on these problems, the United States Court of Appeals for the Second Circuit affirmed the district court’s dismissal of her claims.

Do I have a retaliation claim against my employer?

Best Employee’s Rights Law Firm Answer: Every case is different and complex. To determine whether you have your own employment claim against your employer for employment discrimination or wrongful termination, your best course of action is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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