S.D.N.Y. Notes Split Within Second Circuit re Amount of Time Sufficient to Infer Knowledge of Plaintiff’s Protected Activity
Per Campbell v. Home Depot U.S.A., Inc., http://www.blogger.com/ (S.D.N.Y. Mar. 30, 2006):
As for indirect evidence, it is here that lack of knowledge of protected activity on the part of the employees responsible for the alleged adverse employment action may be relevant "as some evidence of a lack of a causal connection." Gordon, 232 F.3d at 117. Where there is no proof of direct knowledge about a plaintiff's protected activity, knowledge can be inferred from circumstantial evidence or from evidence that "an agent is acting explicitly or implicitly upon the orders of a superior who has the requisite knowledge." Id. . . .
Thus, Plaintiff may only rely upon temporal proximity to prove causation. Plaintiff was terminated approximately four months after she engaged in protected activity. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close." ' Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001)).
"[The Second Circuit] has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Co-op Extension, 252 F.3d 545, 554 (2d Cir.2001). Moreover, courts within the Second Circuit are divided as to whether a four-month gap is close enough. See Rivera v. Potter, 03 Civ.1991, 2005 WL 236490, at *7 (S.D.N.Y. Jan. 31, 2005) (one-month gap insufficient where plaintiff failed to proffer any evidence that his supervisors were aware of his protected activity); Reuland v. Hynes, 01 Civ. 5661, 2004 WL 1354467, at *11 (S.D.N.Y. June 17, 2004) (four-and-one-half-month gap sufficient to sustain inference of causation); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (four-month gap too long to sustain inference of causation); Alston, 14 F.Supp.2d at 312-13 (one-month gap sufficient to sustain an inference even where defendants denied knowledge of plaintiff's protected activity). However, it bears noting that, in Breeden, supra, the Supreme Court favorably cited two circuit court decisions which held that a three to four month gap between the plaintiff's protected activity and defendant's alleged retaliation was insufficient to draw an inference of causation. Breeden, 532 U.S. at 273-74 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992) (4-month period insufficient)).
Here, the facts in a light most favorable to the Plaintiff are: there was a four-month gap between her protected activity and termination, and that Plaintiff has admitted that she does not know whether Ms. Williams had knowledge of Plaintiff's protected activity. There also is no evidence that the decision-making supervisors who terminated Plaintiff (and the three other employees) knew about Plaintiff's protected activity. Based on these facts, there is a strong argument that there is insufficient evidence to infer a causal connection between Plaintiff's protected act and her termination. . . .