Proving Retaliation: Timing, Causation and Pretext

Proving retaliation means proving a connection: that the employer acted because of the worker's protected activity and not for some other reason. Under federal law (Title VII) that connection is but-for causation; for a claim under the New York City Human Rights Law (NYCHRL), the Second Circuit has said an employer gets summary judgment only if the worker cannot show that retaliation played any part in the decision.⁠^[1][3]

This page covers the third part of a retaliation claim. The first two are in protected activity and what counts as retaliation. Most of the case law described here is federal, decided under Title VII by the U.S. Supreme Court and by the Second Circuit, the federal appeals court that covers New York; each rule below is labeled with the law it belongs to.

How is a federal retaliation claim analyzed?

Title VII retaliation claims in the Second Circuit move through three steps.⁠^[6]

1. The opening showing. The plaintiff shows (1) participation in a protected activity, (2) that the defendant knew of the protected activity, (3) an adverse employment action, and (4) a causal connection between the protected activity and the adverse action. The Second Circuit describes the plaintiff's burden at this stage as "de minimis."⁠^[6]
2. The employer's reason. If the plaintiff makes that showing, a presumption of retaliation arises, and the employer must then articulate a legitimate, non-retaliatory reason for the adverse employment action.⁠^[6]
3. Proof of retaliation. If the employer gives such a reason, the presumption drops out and the employee must prove retaliation.⁠^[6] Under Title VII that means but-for causation.⁠^[1]

At the very start of a federal lawsuit the bar is stated differently. To survive a motion to dismiss, a Title VII retaliation plaintiff must plausibly allege that the defendant took an adverse employment action against him because he opposed an unlawful employment practice.⁠^[7] The general framework for discrimination claims is described in how discrimination and retaliation are proved.

What is the causation standard under each law?

Law	Causation standard stated in the source
Federal: Title VII	But-for causation: the retaliation would not have occurred in the absence of the employer's wrongful action; the lesser "motivating factor" test does not apply⁠[1]
New York City: NYCHRL	Summary judgment for the employer is appropriate only if the plaintiff cannot show that retaliation played any part in the employer's decision⁠[3]
New York State: Executive Law § 296(7)	The statute forbids retaliation "because" a person engaged in protected activity; Executive Law § 300 directs liberal construction regardless of how comparably worded federal laws are construed⁠[8][9]
Federal: FMLA (retaliation for taking leave)	"Motivating factor," in the Second Circuit⁠[10]
New York State: Labor Law § 740 (whistleblower law)	It is a defense that the action was predicated on grounds other than the employee's exercise of protected rights⁠[11]

Federal law. The but-for rule comes from University of Texas Southwestern Medical Center v. Nassar, decided by the U.S. Supreme Court in 2013. The Court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened "motivating factor" test found in a different section of Title VII.⁠^[1]

But-for is not the same as "sole cause." The Second Circuit has explained that but-for causation does not require proof that retaliation was the only cause of the employer's action, only that the adverse action would not have occurred in the absence of the retaliatory motive.⁠^[2]

New York City. In Mihalik v. Credit Agricole Cheuvreux North America, Inc., the Second Circuit stated that on a NYCHRL retaliation claim summary judgment is appropriate only if the plaintiff cannot show that retaliation played any part in the employer's decision.⁠^[3] The City rules are covered in retaliation under the New York City Human Rights Law.

New York State. The retaliation subdivision of the New York State Human Rights Law (NYSHRL) forbids retaliation "because" a person engaged in protected activity.⁠^[8] In 2004, before the State law was amended, the Court of Appeals listed "a causal connection between the protected activity and the adverse action" as an element of retaliation.⁠^[12] Executive Law § 300 now directs that the NYSHRL be construed liberally regardless of whether comparably worded federal civil rights laws have been so construed.⁠^[9] This page does not describe the State standard beyond those three points.

What are the ways to show a causal connection?

The Second Circuit recognizes two routes in Title VII cases. A causal connection can be shown indirectly, by showing that the protected activity was followed closely by adverse treatment or through other circumstantial evidence such as different treatment of fellow employees who engaged in similar conduct. It can also be shown directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.⁠^[13]

Knowledge comes first. Under Title VII in the Second Circuit, the defendant's knowledge of the protected activity is part of the opening showing.⁠^[6] At that stage a plaintiff may rely on "general corporate knowledge" of the protected activity.⁠^[14]

How close in time does it have to be?

Timing is one form of indirect evidence. The U.S. Supreme Court has said that cases accepting mere temporal proximity as sufficient evidence of causality for the opening showing uniformly hold that the proximity must be "very close." It cited decisions finding 3-month and 4-month periods insufficient, and said that action taken 20 months later suggests, by itself, no causality at all.⁠^[15]

The Second Circuit has not set a cutoff. It has said that it has not drawn a bright line defining the outer limits beyond which a temporal relationship is too attenuated, and it has previously held that five months is not too long.⁠^[4]

Its Title VII decisions show how fact-specific the question is:⁠^[4][16]

Gap between protected activity and employer's action	Case	What the Second Circuit said
Three weeks from complaint to termination	Zann Kwan v. Andalex Group LLC (2013)	Sufficiently short to make the opening showing of causation indirectly through temporal proximity⁠[4]
Less than two months after an internal complaint, and ten days after a State agency complaint	Quinn v. Green Tree Credit Corp. (1998)	The causation prong of the opening showing was satisfied⁠[16]
Four months	Summa v. Hofstra University (2013)	"Strong reason" to find the span sufficient "in this case"⁠[16]
Seven months	Summa v. Hofstra University (2013)	"Within the temporal range that we have found sufficient to raise an inference of causation"⁠[16]

None of these periods is a rule; the Second Circuit has said it has not drawn a bright line.⁠^[4]

Is timing enough to win?

Not by itself, in federal court. In the Second Circuit, temporal proximity alone is insufficient to defeat summary judgment at the pretext stage, that is, after the employer has given its reason. A plaintiff may, however, rely on the evidence from the opening showing, including temporal proximity, together with other evidence such as inconsistent employer explanations.⁠^[5]

Summary judgment is the point at which a judge decides whether there is enough evidence for a trial; it is explained in summary judgment in employment cases.

What is pretext, and how is it shown?

A pretext is a stated reason that is not the real one. In Title VII cases the Second Circuit has said that a plaintiff may prove retaliation was a but-for cause by demonstrating weaknesses, implausibilities, inconsistencies or contradictions in the employer's proffered legitimate, non-retaliatory reasons. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.⁠^[2] In Zann Kwan, the evidence of that kind was the employer's shifting and inconsistent explanations for the firing.⁠^[2]

The kinds of evidence the Second Circuit has named for Title VII claims translate into factual questions such as:⁠^[2][13]

• Has the employer's explanation changed over time, or does it differ from one document to another?
• Were coworkers who did similar things, but had not complained, treated differently?
• Did anyone involved in the decision say or write something showing hostility to the complaint?
• Did criticism of the worker's performance begin only after the complaint?

Keeping an accurate, dated record helps answer those questions for either side; see building a record. For the common situation where discipline starts soon after a complaint, see put on a performance plan after complaining.

What can the employer show?

The employer's side of the federal framework is the legitimate, non-retaliatory reason at step two.⁠^[6] A complaint does not freeze an employee's record in place: the EEOC states that if an employee's protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.⁠^[17] Under Title VII, the petty slights and minor annoyances that all employees experience are not retaliation.⁠^[18]

For managers, the same Title VII decisions name the evidence a plaintiff may point to: inconsistent or contradictory explanations for the decision, and different treatment of fellow employees who engaged in similar conduct.⁠^[2][13] Common employer arguments are collected in what employers argue, and guidance for supervisors is in for managers and small employers.

What do people commonly get wrong?

• "The federal causation rule applies to every claim." The Second Circuit applies a "motivating factor" standard to FMLA claims for retaliation after taking leave, and has stated the "any part" formulation for NYCHRL retaliation claims.⁠^[10][3]
• "If the first complaint was not proved, the retaliation claim falls with it." Under Title VII in the Second Circuit, a plaintiff may prevail on retaliation even when the underlying conduct was not in fact unlawful, given a good-faith, reasonable belief that it was.⁠^[19]