Please ensure Javascript is enabled for purposes of website accessibility
Home / Expert Opinion / Workplace Issues: ‘But-for’ causation for retaliation best suited for a jury

Workplace Issues: ‘But-for’ causation for retaliation best suited for a jury

Lindy Korn

Lindy Korn

The Court of Appeals has reversed summary judgment in a Title VII retaliation case, interpreting for the first time the Supreme Court’s “but for” reasoning in retaliation cases, Kwan v. The Andalex Group, LLC, 12-2493-cv, decided Dec. 16.

Kwan worked as vice president of acquisitions for a family-owned real estate management firm. One of her early supervisors said that plaintiff’s performance was “very good.” A subsequent supervisor complimented plaintiff’s work, and she received a performance-based bonus.

Nine months after the plaintiff got that bonus, she was fired, a day after she left work early. The plaintiff said she had permission to do so; management said she did not. The plaintiff’s termination took place three weeks after she told one member of management that she was being discriminated against in respect to salary and bonuses. Another corporate officer fired the plaintiff.

The Court of Appeals reversed summary judgment on the retaliation claim and provided guidance on the new “but for” causation standard that is best suited for a jury.

Firstly, the court held that the fact that the plaintiff complained about discrimination to a corporate officer is enough to show that the company knew about her protected activity. The Second Circuit explained:

“This case is a good illustration of why corporate knowledge is sufficient for purposes of a prima facie case of retaliation. If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing.”

Secondly, The Second Circuit closely scrutinized management’s reasons for termination. The shifting explanations from the CEO stating that the business focus had changed, while another person in management testified that the “plaintiff’s termination was the culmination of her poor performance …” The problem is that only one reason was cited in the defendant’s EEOC position statement. The Court of Appeals held that shifting explanations support a finding of pretext, which could get you a trial in a retaliation case.

Thus, this case tells us that management has to get the story straight when the plaintiff sues your client for discrimination or retaliation. Shifting explanations does not look good to the court or the jury, and they suggest the employer is dissembling in order to avoid liability.

The majority reiterates that “A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, non retaliatory reasons for its actions. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” In other words, pretext alone can get you a trial in a retaliation case.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).