U.S. Court of Appeals for Second Circuit Vacates Dismissal of Retaliation Claims Based Upon Employer’s Changing Reasons for Termination

A key aspect of an employer’s defense in an employment discrimination case involves the proffer of a legitimate non-discriminatory reason for the adverse action claimed to be discriminatory by the employee.  While employers defending a discrimination case are not required to prove  that they acted legitimately, they are required to provide some proof that the employee was terminated for a specific non-discriminatory reason.

On December 16, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Vermont and Connecticut) considered the dismissal by the United States District Court for the Southern District of New York of a plaintiff’s several employment discrimination, retaliation, and hostile work environment claims in violation of federal and New York State law.  Although the Second Circuit upheld the dismissal of the discrimination and hostile work environment claims, the court vacated the District Court’s dismissal of the retaliation claim, stating that the record contained sufficient evidence for the plaintiff to withstand summary judgment.

In Kwan v. The Andalex Group, LLC (U.S. Court of Appeals for the Second Circuit, No.12-2493-cv, decided: December 16, 2013) , the plaintiff, a former Vice President of Acquisitions, claimed, among other things, that she was terminated in retaliation for complaining to the Director of Human Resources three weeks prior to her termination that she believed she was being discriminated against on the basis of gender with respect to her salary raises and bonuses.  Following the plaintiff’s termination, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and the employer submitted a “position statement” in support of its defense.  Among other things the position statement stated that plaintiff was terminated because the company’s “business focus to international investments made the plaintiff’s skill set obsolete.”  However, the employer took a different position in court.  Indeed, the court noted that the employer’s “explanations for the plaintiff’s firing have. . . evolved over time.”  During depositions taken during the litigation, the employer alleged that the “plaintiff’s poor performance and bad behavior were the reasons for the termination.”  Yet, despite that the employer claimed that it was the plaintiff’s performance and behavior that led to the decision to terminate her, the court noted that “[a]ny fair reading of Andalex’s Position Statement to the EEOC indicates that Andalex claimed that Kwan was fired primarily because its business focus had changed.”  The shifting reason for the plaintiff’s termination casted doubt on the employer’s veracity concerning why the plaintiff was, in fact, fired.

In addition, the Second Circuit rejected the employer’s contention that the decisionmaker was not aware of the plaintiff’s earlier complaint of discrimination to the Director of Human Resources, and, thus, could not have retaliated against her on that basis.  In so doing, the court stated that the plaintiff satisfied the burden of demonstrating the decisionmaker’s “knowledge” of the complaint based upon the concept of “general corporate knowledge.”  While general corporate knowledge alone would not be sufficient to establish causation, the court explained why it was sufficient to satisfy the element of “knowledge.”

If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing.

The Second Circuit’s decision in Kwan does not necessarily state any new principles of law.  Rather, it reinforces and clarifies certain concepts that plaintiffs have successfully utilized in the past to survive summary judgment and proceed to trial.