Suppose an employee files a complaint against your company and it’s quickly dealt with. Now suppose, ten months later, that you, the employer, fire that employee — ostensibly for financial reasons. Is the timing between the original complaint and the termination enough to support a claim for retaliation?
Previous federal court cases in Connecticut have concluded, in general, that the timing — standing alone — is not enough. I discussed one such case here.
But a new Second Circuit decision, released as a summary order yesterday, suggests a way around that limitation — at least in some distinct circumstances.
The case, Brenes v. City of New York, arises out of First Amendment retaliation claim brought by a New York school teacher who had gone to the New York Post months before his eventual termination. The court suggests that an employer can be liable for retaliation if they waited to retaliate, so long as there was a reason why the employer may have delayed its action.
"A reasonable jury could infer from these facts that [the supervisor] expected that [employee]’s position would disappear in June, and that she therefore had no incentive to further retaliate against him until it became clear that he would be returning to [the school]. When considered in this light, [the employee]’s series of negative performance evaluations at the start of the next school year is suspicious and could plausibly support an inference of retaliation, particularly given that [the employee] previously received only satisfactory evaluations from prior supervisors and [his supervisor]."
This case allows retaliation plaintiffs to overcome the presumption that, without direct evidence of retaliatory intent ("You’re fired because you blew the whistle six months ago"), an adverse action needs to take place more than a few months after the protected activity.
For employers, this case — while a rare example of the court finding a possible link of retaliation many months after the original complaint — demonstrates the importance of documentation and consistency in evaluations and discipline. Retaliation cases are among the most difficult to defend and this new Second Circuit decision might give some employees another way to establish a retaliation claim that might not otherwise survive.