In Wright v Ad Pepper Media USA, LLC, the employer, a germany-based marketing company, was denied summary judgment on plaintiff’s retaliation claims under the New York City Human Rights Law on the grounds of temporal proximity between the protected activity and the adverse action, despite the claim of Ad Pepper that the plaintiff had a six-month record of poor performance. The court held:
while it may be true that plaintiff’s employer was dissatisfied with plaintiff’s job performance for an extended period of time, plaintiff’s employer apparently did not make the decision to suspend plaintiffs employment until the day he first made a complaint of discrimination on April 2, 2014 and then terminated plaintiff’s employment two days later on April 4, 2014. Under the circumstances presented, although defendant may have proffered legitimate, non-retaliatory reasons for discharging plaintiff, there are triable issues of fact as to whether plaintiff’s complaint of discrimination was a motivating factor in the decision to terminate based on the temporal proximity between the complaint of discrimination and the
adverse employment action. Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010)(holding that causation can be established by showing that the protected activity was followed closely by discriminatory treatment); Teran v. Jetblue Airways Corporation, 132 A.D.3d 493, 494 (1st Dept. 2015) (holding that summary judgment was not appropriate where plaintiff “raised triable issues of fact as to her retaliation cause of action since the record show[ed] that she formally complained about the sexual harassment and was constructively discharged within a short time thereafter, permitting an inference of a causal connection between her complaint and the constructive discharge.”); Krebaum v. Capital One, N.A., 138 A.D.3d 528, 352-353 (1st Dept. 2016) (holding that the temporal proximity of plaintiff’s complaint of discrimination and his termination of employment one month later indirectly showed the requisite casual connection required for a retaliation claim).
Moreover, the court decided that the defendant’s own testimony raised a triable issue of fact as to whether there was a causal connection between the protected activity and the termination:
For instance, in response to a question regarding the factors considered in the decision to terminate plaintiffs employment, plaintiff’s former supervisor stated: “Q: How did you react when he raised this issue of discrimination? A: “Well, shock and disappointment…. I needed time to absorb his actions. So, I had to suspend him and consider his position …. I just had to consider everything that he just said, because it took me by surprise.” EBT of Ryan Gilbert, December 12, 2016 at p. 119.:.121. Defendant apparently failed to conduct an investigation of the alleged discrimination in the two-day period between the discrimination complaint and the decision to terminate. Instead, it appears that defendant may have simply concluded, summarily, that the complaint of discrimination was not made in good faith. While it is possible that plaintiff’s complaint of discrimination was not made in good faith, which would potentially defeat plaintiffs retaliation claim, such a question is for a jury and not the court to decide, particularly in light of plaintiffs assertions that similarly situated individuals outside of plaintiffs protected category were treated differently.