“But-For This,” “But-For That” — Multiple “But-For” Causes Possible In Title VII Retaliation Claim

Kollman & Saucier
Kollman & Saucier
12/26/2013

The Second Circuit Court of Appeals delivered Zann Kwan an early Christmas present earlier this month when it concluded that her former employer was not entitled to summary judgment on her retaliation claim.  Zann Kwan v. Andalex Grp. LLC, No. 12-2493 (2d Cir. Dec. 16, 2013). 

From April 2007 until September 2008 Zann Kwan worked as the Vice President of Acquisitions for The Andalex Group, a small family-owned real estate management company based in New York State.  After she was fired, Kwan sued Andalex and included in her complaint a claim of retaliation under Title VII of the Civil Rights Act of 1964.

Kwan claimed that she was fired three weeks after she had complained to the COO that she was being discriminated against based on her gender.  Andalex claimed that Kwan was fired because her skill set did not fit with the direction of the company.  It later explained that Kwan was terminated for poor performance and bad behavior.  Kwan, however, had been given good evaluations, which countered the poor performance justification.

A federal district court granted summary judgment on Kwan’s Title VII retaliation claim, concluding that Kwan had failed to establish a prima facie case under the McDonnell Douglas burden-shifting framework.  A prima facie case of retaliation requires that: (1) the plaintiff engaged in protected activity; (2) the defendant knew of the protected activity; (3) the plaintiff suffered a materially adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action.  On appeal, the Second Circuit focused on the knowledge and causation elements.

With respect to knowledge, Andalex argued that the executive who terminated Kwan (Andrew Silverman) had no knowledge of Kwan’s complaint to another executive (Alex Silverman).  This argument failed because “general corporate knowledge” is sufficient for a plaintiff-employee to satisfy the knowledge prong of a retaliation claim.  Here, Alex’s knowledge was sufficient to impute knowledge upon Andalex as a whole.

As for the causation prong, the district court had held that Kwan presented no evidence suggesting that her termination was related to her internal complaint of discrimination.  Under the Supreme Court’s recent decision in University of Texas Southwest Medical Center v. Nassar, a Title VII retaliation claim “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful act or actions of the employer.”

The Second Circuit stated that Nassar’s “but-for” standard does not prevent a plaintiff from showing causation through temporal proximity.  Thus, the three-week period between Kwan’s complaint and her termination was sufficient to demonstrate causation.  Andalex, in turn, offered legitimate non-discriminatory reasons for Kwan’s termination (her poor performance and bad behavior).  Andalex’s shifting justifications for Kwan’s termination, however, discredited the legitimate business reasons.

Remanding the retaliation claim, the court stated, “a plaintiff’s injury can have multiple ‘but-for’ causes, each one of which may be sufficient to support liability.”  In other words, “but-for” causation does not require that a plaintiff-employee’s protected activity be the sole cause of the materially adverse action.  In Kwan’s case, her complaint, poor performance, bad behavior, or the mismatch between Kwan’s skills and the direction of the company could all be but-for causes.

 

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