Employer’s Shifting Explanations for Terminating an Employee Support Employee’s Retaliation Claim

On December 15, 2013, the United States Court of Appeals for the Second Circuit reversed summary judgment in a Title VII retaliation case, Kwan v. The Andalex Group, LLC, deciding that Defendant’s shifting explanations proved that Plaintiff was fired for pretextual reasons.

In April 2007, Plaintiff was hired as Vice President of Acquisition at Andalex, which is a family owned real estate management firm. Plaintiff was an at will employee. In September 2008, Plaintiff was fired, even though her work was described as “very good” and her manager never had any reason to criticize her competence or diligence. Besides, Plaintiff continuously received bonuses for her work. Plaintiff was allegedly fired because on September 25, 2008, she left the office at 5:15 p.m., earlier than the standard departure time of 6:00 p.m. to play squash instead of continue working on a project and because of her alleged “poor” job performance. On the following day, Plaintiff was reprimanded for leaving work early without permission. Later that day, Plaintiff was terminated by Defendants.

According to Plaintiff, she was terminated about three weeks after she had complained to management that she was being discriminated against because of her gender. She alleges that she was fired because of her recent complaint about discrimination when she asked why she was being discriminated against and treated differently from the men in the office with respect to salary increases and bonuses. Defendant denied that it retaliated against Plaintiff and denied that the alleged complaint of gender discrimination ever occurred. However, Defendant’s explanations for plaintiff’s termination have evolved over time. First, Defendant contended that because of a change in the business, the focus would be on international investment, which made Plaintiff’s skills obsolete. Subsequently, it shifted to an explanation that the plaintiff’s poor performance and bad behavior were the reasons for the termination.

The Court of Appeals decided to reverse summary judgment on the retaliation claim because, even if the person who terminated Plaintiff are the person who received her discrimination complaint are not the same, the fact that Plaintiff complained to a corporate officer about discrimination is enough to show the company knew about her protected activity. Under the “general corporate knowledge” rule, if a corporate officer knows about the complaint, that knowledge is imputed to the corporation as a whole. Besides, regarding Defendant’s proffered reason for termination, the Court of Appeals used the Supreme Court’s rule that retaliation plaintiffs must show their protected activity was a “but for” cause of the termination. However, the “but-for” causation does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive. The Court stated:

“In this case, the parties have put forward several alleged causes of the plaintiff’s termination: retaliation, unsuitability of skills, poor performance, and inappropriate behavior. The determination of whether retaliation was a “but-for” cause, rather than just a motivating factor, is particularly poorly suited to disposition by summary judgment, because it requires weighing of the disputed facts, rather than a determination that there is no genuine dispute as to any material fact. A jury should eventually determine whether the plaintiff has proved by a preponderance of the evidence that she did in fact complain about discrimination and that she would not have been terminated if she had not complained about discrimination.”

Therefore, the Court of Appeals decided that Plaintiff showed that she was fired for pretextual reasons and that retaliation was the real reason.

If you are an employee and you believe you have been discriminated against and/or retaliated against, please contact the Harman Firm, LLP.