In Robert Bagley v. J.P. Morgan Chase & Co., (10 Civ. 1592, SDNY):

Plaintiff, an assistant vice president at J.P. Morgan Chase (“Chase”) sued his employer, Chase, for retaliation against him for opposing unlawful discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).  The employer’s motion for summary judgment on the retaliation claim was denied.  Plaintiff claimed that his supervisors directed him to rate his staff members’ performance in a manner which would target older workers in a negative way.  He complained that this practice constituted age discrimination and he was eventually terminated.  At the time of his termination he was an assistant VP and managed a staff of 20 employees.  All of these employees were over the age of 40 and most were over 50 years old.  Plaintiff reported to an Executive Director who reported to an Operations Manager.  Plaintiff’s concerns of age discrimination arose during the 2008 year-end performance review process when his supervisors directed him to rate four of his staff members, all whom were over age of 50, a low rating which would normally lead to that staff member getting fired.  To further support Plaintiff’s belief that these four employees were targeted because of their age, he overheard his supervisors make age-related remarks on several occasions.  During the 2009 mid-year performance evaluation process, Plaintiff was told by his supervisors to “aggressively rate” his staff.  Based on Plaintiff’s past experiences, he believed this meant to target older workers.  Since Plaintiff believed the performance review process was being improperly used to justify the firing of older workers, he did not wish to participate in the evaluation process.  Plaintiff sent an email to his supervisor asking to be demoted or be considered for a severance package in order to remove himself from the age discriminatory purpose of the performance review process.  Plaintiff wrote another email to his supervisors stating that he was not going to any of the staff members less than satisfactory because he felt they all deserved it and refused to rate 9 staff members with rating assigned to them by his supervisors.  Plaintiff’s supervisors completed the performance evaluations for the 9 staff members, all of whom they rated below satisfactory.  Since the 2008 year-end reviews, Plaintiff made numerous complaints about the age discriminatory manner of the performance review process to his supervisors and to Chase’s Human Resources Department.  He was eventually terminated when his supervisors gave him a negative performance evaluation when he refused to fill out the 9 performance evaluations.

In order to make out a prima facie case of retaliation under the ADEA, the employee must provide sufficient evidence for a trier of fact to find that (1) he engaged in a protected activity under the Act; (2) that the employer was aware of this activity; (3) that the employer took adverse action against the employee; and (4) that a causal connection exists between the protected activity and the adverse action.  In this case, Defendant/employer conceded the first three elements but argued that Plaintiff could not show element 4, a causal connection between his alleged complaints and his termination.  A causal connection between the protected activity and the adverse action may be demonstrated by direct evidence, disparate treatment compared to similarly situated employees or that the retaliatory action occurred close in time to the protected activities.  Courts have held that the close proximity between the employee’s protected activity and an adverse employment action is sufficient to create an inference of retaliation.  Courts in the Second Circuit have not defined a specific time period; however, they have held in at least one case that 5 months was sufficient to find a causal connection.  Here, the time between Plaintiff’s complaints to his supervisors about the performance review process targeting older workers and the adverse employment action, his termination, was about 3 months apart.  The court found that this was sufficient to prove the prima facie case.

The burden then shifts to the employer to provide a legitimate, non-retaliatory reason for the adverse action.  Defendant asserted that Plaintiff failed to satisfy the duties and responsibilities of his management position by refusing to fill out all of the performance evaluations for his staff members.  The court found that this was sufficient to satisfy the modest burden.

Then burden then shifts back to the plaintiff to show that the reason offered was pretext for retaliation.  The standard for pretext is whether the evidence, taken as a whole, is sufficient to support a reasonable inference that retaliation occurred.  Plaintiff can use the evidence he relied upon in making out the prima facie case, including the close proximity between the protected activity and the adverse action.  In this case, Plaintiff used the following evidence to show that his employer’s reason for termination was false:  his supervisors, who fired him, made negative remarks about older workers; in 2008, Plaintiff was told how to rate his staff members which he previously had absolute discretion; Plaintiff’s supervisors did not follow Defendant’s performance evaluation guidelines that Plaintiff was supposedly terminated for violating; and Plaintiff’s supervisors failed to follow Defendant’s policy and practices in terminating him.  A reasonable jury could find that Plaintiff was not fired because he refused to fill out performance evaluations.  Rather, they can find that he was fired for refusing to participate in the discriminatory practices of Defendant.  The Court found that Plaintiff produced sufficient evidence for the jury to find Defendant’s reasons for terminating him were false and pretextual.  Therefore, Defendant was not entitled to summary judgment on Plaintiff’s retaliation claim.