Faul v. Potter, No. 09-0173 (2d Cir. Dec. 9, 2009)

By Paul Mollica

The Second Circuit, in an unpublished decision with scant details, sends a Title VII retaliation claim back to the district court for trial, holding that a fifteen-month gap between the protected activity and the alleged retaliatory denial of full-time work did not defeat causation.

Faul v. Potter, No. 09-0173 (2d Cir. Dec. 9, 2009):  The panel reverses summary judgment, where the district court held that there was a genuine issue of material fact about whether other acts during the fifteen-month period raised an inference of retaliation:  “To be sure, the fifteen-month separation between Faul’s May 2002 Equal Employment Opportunity (‘EEO’) complaint and the November 2003 ‘Function Four’ audit that led to
the March 2004 decision to eliminate her position would ordinarily undermine her claim, see Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), but Faul here relies instead, as she may, on other evidence of [her manager] Sands’s retaliatory animus, . . . . Causation evidence of a ‘minimal’ or ‘de minimis’ nature suffices at the prima facie stage, . . . and this Faul has adduced with her assertion that Sands threatened her job (and that of another female employee) in September 2002 coupled with Sands’s refusal to deny the assertion.”

The court also holds that a seven-day suspension (later rescinded), even one that had no pay consequences for the employee, nevertheless constitutes a materially adverse action for purposes of retaliation under the standard of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006): “Whether or not particular discipline would dissuade a reasonable worker in a particular job from making a charge of discrimination requires careful consideration of the totality of the circumstances. See White, 548 U.S. at 68 (‘We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.’). In their totality, the circumstances here, we believe, render the material adversity of the seven-day suspension an issue not appropriate for summary disposition. We therefore vacate the district court’s conclusion to the contrary and remand for trial.”