Employers often are frustrated by an employee’s characterization in litigation of prior workplace complaints – many times dating back months or even years – as “protected activity” within the meaning of one or more employment statutes. Distinguishing true “protected activity” from the a mere employee complaint can be a difficult task. At the initial stage of a litigation asserting a claims of retaliation, a major issue is whether the employee has asserted a prima facie case by alleging facts that give rise to a “causal connection” between the alleged protected activity and the alleged adverse action, such as a termination. Often, the employee asserts little more than an allegation of temporal proximity, such as: “I complained, then I was fired.” In a recent decision, Judge Deborah Batts of the United States District Court for the Southern District of New York held that a 13-month span between alleged protected activity and an employee termination was insufficient to support the causal connection necessary for a “plausible” retaliation claim to proceed past the initial pleading stage. Straebler v. NBC Universal, Inc., 2013 U.S. Dist. LEXIS 20623 (S.D.N.Y. Feb. 11, 2013).
In Straebler, plaintiff alleged in her complaint that she complained about specific employer conduct relating to weekend work under the wage and hour laws and under the applicable collective bargaining agreement (CBA). Analyzing the specific allegations in the complaint, Judge Batts determined that the plaintiff alleged a 13-month gap between her last complaints about the alleged wage and hour violations, with continued complaining relating only to whether or not the practice complied with the CBA. Because only complaints regarding compliance with the statute (as opposed to the CBA) were protected for purposes of the wage-hour retaliation claim (brought pursuant to state law), the court turned to the question of whether, by alleging such a fact pattern, it was “plausible” that plaintiff’s termination related to the protected activity occurring 13 months beforehand. The court ruled that, absent other facts tending to support retaliation, such a time period did not sufficiently buttress the retaliation claim.
Straebler is a positive result for New York employers and will be cited extensively by employers confronted with similar allegations of “delayed” retaliation. Nevertheless, retaliation remains one of the most common and dangerous claims brought by employees, a trend likely to be fueled by the DOL’s newly-announced regulations governing investigation of alleged retaliation under the Affordable Care Act. Employers must remain vigilant in managing incumbent employees who have raised “protected” workplace issues.