Opinion
17-cv-5711 (GRB)(JMW)
2021-08-09
Daniel HAMPTON, Plaintiff, v. Robert WILKIE, in his Official Capacity as Secretary of the United States Department of Veterans Affairs, Defendant.
Matthew Ian Marks, Ricotta & Marks, P.C., Long Island City, NY, Thomas Ricotta, White Ricotta & Marks, P.C., Jackson Heights, NY, for Plaintiff. Megan Jeanette Freismuth, Diane C. Leonardo, United States Attorneys Office, Central Islip, NY, for Defendant.
Matthew Ian Marks, Ricotta & Marks, P.C., Long Island City, NY, Thomas Ricotta, White Ricotta & Marks, P.C., Jackson Heights, NY, for Plaintiff.
Megan Jeanette Freismuth, Diane C. Leonardo, United States Attorneys Office, Central Islip, NY, for Defendant.
MEMORANDUM AND ORDER
Gary R. Brown, United States District Judge
Plaintiff Daniel Hampton, a former employee of the Veteran Affairs Medical Center ("VAMC") in Northport, New York, brings the instant action against defendant Robert Wilkie, in his official capacity as Secretary of the United States Department of Veterans Affairs, claiming hostile work environment, retaliation, and quid pro quo sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), for alleged acts of harassment by his immediate supervisor, Joan Maggiore. The government now moves for summary judgement seeking dismissal of plaintiff's claims. For the reasons set forth herein, the government's motion for summary judgment is DENIED as to the retaliation claim and GRANTED in all other respects.
I. PROCEDURAL HISTORY
On August 18, 2015, plaintiff made initial contact with an Equal Employment Opportunity counselor regarding his sexual harassment and hostile work environment claims. DE 44-5, 44-6. On November 6, 2015, plaintiff filed a formal EEO complaint with the Department of Veteran Affairs, Office of Employment Discrimination Complaint Adjudication. DE 44-6. On April 6, 2016, plaintiff amended his EEO complaint to add the allegation that he was wrongfully terminated on April 1, 2016. DE 44-7. After the Office of Resolution Management completed its investigation, plaintiff elected to have a Final Agency Decision instead of a hearing from the Equal Employment Opportunity Commission. DE 44-8. On February 10, 2017, OEDC issued its Final Agency Decision dismissing plaintiff's complaint. DE 1 ¶ 9. On March 15, 2017, plaintiff appealed the Final Agency Decision to the EEOC. DE 1 ¶ 10. The EEOC did not render a decision within 180 days, DE 1 ¶ 11, and on September 29, 2017 plaintiff filed the instant action alleging hostile work environment, retaliation, quid pro quo sexual harassment, and atmosphere of adverse actions under Title VII. DE 1. On September 25, 2020, defendants filed a motion for summary judgment requesting dismissal of plaintiff's claims. DE 41.
Plaintiff voluntarily withdrew the claim for "atmosphere of adverse actions." DE 42 at 6.
II. FACTS
The following facts are undisputed unless otherwise noted. In December 2009, Daniel Hampton accepted an appointment at the VAMC in Northport, New York with the Sterile Processing Service. DE 47 ¶ 1. He was initially hired for a temporary appointment under 38 U.S.C. § 7405(a)(1), not to exceed three years. DE 47 ¶¶ 2-4. As a Medical Supply Technician, Hampton's duties included sterilizing and assembling surgical instruments. DE 47 ¶ 5. Hampton's immediate supervisor was SPS Chief Joan Maggiore. DE 47 ¶ 6. Maggiore stated in her deposition that Hampton's performance was "exceptional" and she believed he was qualified for the position. DE 50-2 at 13, 22. Hampton claims he did not complete EEO trainings because he had password issues with the online system. DE 47 ¶ 12. According to Hampton, Maggiore told him, "Don't even worry about it, I will do it," and completed the EEO trainings for him under his name. DE 47 ¶ 12; DE 50-1 at 329-30; DE 44-10 at 2. Hampton claims there were no EEO posters in his work area explaining the filing requirements for EEO complaints. DE 47 ¶ 10.
Defendant's Rule 56.1 Statement acknowledges the following allegations made by plaintiff:
• In June 2010, Maggiore called Hampton into her office and asked him to remove his shirt so she could see his new tattoo that he posted on Facebook. DE 47 ¶¶ 16-17.
• In February 2012, Maggiore asked Hampton if he wanted to "fuck" her. DE 47 ¶ 21.
• In February 2012, Maggiore asked Hampton to come into her office to "earn back" his sick time and rubbed his arm on three occasions. DE 47 ¶¶ 22-23.
• In fall 2012, Maggiore commented that if Hampton was not with his girlfriend, she would "snatch him up." DE 47 ¶ 28.
• In 2013, Hampton overheard Maggiore and another employee discussing anal sex in a common area. DE 47 ¶ 29.
• On January 26, 2015, Maggiore touched Hampton in the stomach area and commented on his weight loss. DE 47 ¶ 33.
• On May 12, 2015, Hampton informed management officials of Maggiore's alleged harassment. DE 47 ¶ 35.
• On May 13, 2015, Maggiore scratched her thigh in front of Hampton and stated, "I was scratching my leg. I don't want you [to] think I was scratching my crotch or anything." DE 47 ¶ 37.
• On June 3, 2015, Maggiore requested that Hampton report to her when he arrives at work. DE 47 ¶ 39.
Defendant's Rule 56.1 Statement does not offer any countervailing evidence to dispute the above allegations.
The parties dispute whether Hampton was converted to a permanent employee in January 2013. According to defendant, the VAMC extended Hampton's temporary appointment for another three years in December 2012 and again November 2015. DE 47 ¶¶ 7-8. Human Resources Officer Wilmino Sainbert explained in his deposition that the VAMC erroneously retained Hampton as a temporary employee past 2012 although a temporary position is not supposed to exceed three years. DE 44-4 at 7-8. Hampton claims he never signed any extension but instead was made a permanent employee on January 22, 2013. DE 47 ¶¶ 7-8. According to Hampton, Maggiore told him that he was a permanent employee. DE 50-1 at 307. In her deposition, Maggiore testified that in 2013 she selected Hampton for a permanent position from a list of qualified candidates: "[T]he Certificate of Eligibles ... [t]hose are the people who qualify and they sent three names and what I would do is select, you know, I would email John, he would tell me I have to send him an email that says I'm selecting this person for the position, which is what I did. ... I don't believe I interviewed Daniel [Hampton] because he was already there, so I just selected him [to become permanent]." DE 50-2 at 32-33. Hence, Maggiore believed Hampton was becoming a permanent employee as of January 22, 2013. DE 50-2 at 33. Human Resources Officer Wilmino Sainbert also stated in his deposition that he "know[s] that [the competitive hiring process] did take place." DE 44-4 at 7. According to the Standard Form 50, however, Hampton's conversion to a permanent position was still "pending" as of December 2012. DE 44-18.
On August 18, 2015, Hampton filed an informal EEO complaint with an EEO representative. DE 47 ¶ 13. On November 6, 2015, plaintiff filed a formal complaint of employment discrimination, VA Form 4939, alleging sexual harassment, discrimination, hostile work environment, and retaliation. DE 47 ¶ 14; DE 44-6.
In late October or early November 2015, Human Resources intern Angel Tejada brought it to the attention of HR Officer Wilmino Sainbert that Hampton's temporary appointment was about to expire. DE 47 ¶ 73. In an email to Angel Tejada on November 18, 2015, Maggiore asked if she should approve sick leave for Hampton and wondered if it "even matter[s] at this point since we are trying to relieve him of his duty?" DE 50-10. Hampton claims that in December 2015 Maggiore failed to approve his leave requests in a timely fashion. DE 47 ¶ 70. On January 4, 2016, VAMC notified Hampton that his temporary appointment would be extended to November 29, 2018 pending completion of the Title 5 competitive or merit promotion hiring process, and invited him to apply for a recently posted permanent position. DE 47 ¶ 74; DE 44-13. Defendant claims Maggiore asked Hampton to sign paperwork to extend his temporary appointment to 2018. DE 47 ¶ 52. Hampton refused to sign because he believed he was a permanent employee. DE 47 ¶ 8; DE 44-13; DE 50-1 at 315. VAMC posted vacancies for permanent positions, but Hampton declined to apply. DE 47 ¶¶ 81-82. Hampton claims Maggiore emailed the union on January 5, 2016 stating that Hampton was not maintaining endoscopes as directed. DE 47 ¶ 53. On February 22, 2016, the Assistant Chief allegedly told Hampton "You should watch your mouth, you don't have Al Sharpton to protect you." DE 47 ¶ 57. On April 1, 2016, Hampton was informed that his temporary appointment would end April 16, 2016. DE 47 ¶ 62; DE 44-12.
Plaintiff's co-worker, who also had a temporary appointment, received an identical letter in January 2016 regarding the expiration of her temporary appointment. DE 47 ¶¶ 79-80. Although defendant claims the co-worker was also issued a separation letter, plaintiff avers the co-worker resigned for another job. DE 47 ¶¶ 81-82.
Defendant claims Maggiore was not involved in the decision to terminate Hampton's employment and that this decision was made by Sainbert and Human Resources. DE 47 ¶¶ 75-77. Sainbert stated in his deposition that he had no direct discussion with Maggiore regarding Hampton's employment, but may have spoken with Angel Tejada. DE 44-4 at 16. According to Sainbert, Hampton was terminated because his temporary position expired. DE 44-4 at 18.
III. STANDARD OF REVIEW
Summary judgment shall be granted if the moving party shows there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The Court's function is not "to resolve questions of fact but solely to determine whether, as to any material fact, there is a genuine issue to be tried." Fitzgerald v. Henderson , 251 F.3d 345, 360 (2d Cir. 2001) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). For a fact to be material, it must affect the outcome of the suit. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A genuine dispute of material fact exists if a reasonable jury could return a verdict for the nonmoving party. Id. A mere scintilla of evidence in support of the plaintiff's position is insufficient to defeat summary judgment. Id. at 252, 106 S.Ct. 2505. However, in determining whether there is a genuine issue of material fact, "the court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Fitzgerald , 251 F.3d at 360. Moreover, in discrimination cases, a trial court "must be cautious about granting summary judgment to an employer when, as here, its intent is at issue" because "writings directly supporting a claim of intentional discrimination are rarely, if ever, found ...." Gallo v. Prudential Residential Servs., Ltd. P'ship , 22 F.3d 1219, 1224 (2d Cir. 1994).
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
a. Legal Framework
Defendant argues that plaintiff timely exhausted his administrative remedies only with respect to his retaliation claim based on the April 2016 separation, and therefore his hostile work environment, quid pro quo sexual harassment, and pre-April 2016 retaliation claims should all be dismissed as time-barred. Plaintiff argues his claims are timely under the "continuing violation" doctrine and that the government waived timeliness in the Final Agency Decision. DE 45 at 13; DE 33. Prior to bringing suit under Title VII, a federal government employee must:
(1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, see 29 C.F.R. § 1614.105(a)(1), and, if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint ("EEO complaint") within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice"), see id. § 1614.106(a), (b). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. See 42 U.S.C. § 2000e–16(c) ; 29 C.F.R. § 1614.408(a), (b).
Belgrave v. Pena , 254 F.3d 384, 386 (2d Cir. 2001). Failure to consult an EEO counselor within 45 days is grounds for dismissal. See Bruce v. U.S. Dep't of Just. , 314 F.3d 71, 74 (2d Cir. 2002) (government waived timeliness defense that plaintiff failed to contact EEO counselor within 45 days); Tassy v. Buttigieg , No. 20-CV-2154 (BMC), 540 F.Supp.3d 228, 234–36 (E.D.N.Y. May 17, 2021) (dismissing claim because plaintiff did not contact EEO counselor within 45 days of allegedly discriminatory act).
The exhaustion requirement is a non-jurisdictional, claims-processing rule. Fort Bend Cty., Texas v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1846, 204 L.Ed.2d 116 (2019) ; Terry v. Ashcroft , 336 F.3d 128, 150-51 (2d Cir. 2003). The government may assert failure to timely exhaust administrative remedies as an affirmative defense. Belgrave , 254 F.3d at 386. Agencies do not waive an untimely exhaustion defense by accepting and investigating a complaint. Id. at 387. A timeliness objection is waived only if an agency makes "a specific finding that the claimant's submission was timely." Lanham v. Mansfield , 400 F. App'x 609, 611 (2d Cir. 2010) (quoting Rowe v. Sullivan , 967 F.2d 186, 191 (5th Cir. 1992) ). If an agency decides the merits of a complaint without addressing the question of timeliness, however, it has waived the timeliness defense in a subsequent lawsuit. Bruce , 314 F.3d at 74-75 (citing Ester v. Principi , 250 F.3d 1068, 1071-72 (7th Cir. 2001) ).
Hostile work environment claims fall under the "continuing violation" exception to the timeliness requirement. Under this doctrine, if one act contributing to a hostile work environment claim is timely, then "the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ; see also Fitzgerald v. Henderson , 251 F.3d 345, 359 (2d Cir. 2001) ("[I]f a plaintiff has experienced a continuous practice and policy of discrimination, ... the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.") (quotation marks and citations omitted). Hostile work environment claims are different from claims arising from discrete acts because they involve repeated acts over time, any one of which may not be actionable on their own. Morgan , 536 U.S. at 115, 122 S.Ct. 2061. The doctrine does not apply to discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire, all of which are separate actionable employment practices. Tassy , 540 F.Supp.3d at 234–36 (citing Morgan , 536 U.S. at 114-15, 122 S.Ct. 2061 ). An employee's dismissal within the statutory period cannot be used "to pull in [a] time-barred discriminatory act" because "continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Patterson v. Cty. of Oneida, N.Y. , 375 F.3d 206, 220 (2d Cir. 2004) (quoting Morgan , 536 U.S. at 112-13, 122 S.Ct. 2061 (quotation marks omitted)) (hostile work environment claim was untimely because the only discriminatory act within the limitations period was termination of employment). A plaintiff cannot rely on a continuing violation theory of timeliness if they did not assert that theory in the administrative proceedings. Fitzgerald , 251 F.3d at 360. Although prior acts are not actionable if time-barred, they can still provide background evidence in support of a timely claim. Morgan , 536 U.S. at 113, 122 S.Ct. 2061.
b. Application
Plaintiff's hostile work environment claim is time-barred because plaintiff failed to contact an EEO counselor within 45 days of at least one alleged act in furtherance of the hostile work environment. 29 C.F.R. § 1614.105(a)(1). Plaintiff makes a half-hearted claim to the "continuing violation" exception, citing National R.R. Passenger Corp. v. Morgan . DE 45 at 13. However, it is undisputed that plaintiff did not timely allege even one act in furtherance of the hostile work environment claim, as is necessary to render the time-barred acts timely. Morgan , 536 U.S. at 117, 122 S.Ct. 2061. On August 18, 2015, plaintiff consulted with an EEO representative regarding alleged harassment that took place on January 26, 2015, May 12, 2015, June 25, 2015, and an unspecified date. DE 44-5 at 1; DE 47 ¶ 13. Because plaintiff did not allege any specific acts of harassment during the 45-day window preceding August 18, 2015, plaintiff's hostile work environment claim is untimely. The only claim for which plaintiff timely exhausted his administrative remedies is the retaliation claim arising out of his April 2016 separation. On April 6, 2016, plaintiff amended his EEO complaint to add a retaliation claim arising out of his termination five days earlier on April 1, 2016. DE 44-7. In the Notice of Amendment, the Office of Resolution Management "ACCEPTED [plaintiff's separation] for investigation as a timely independent actionable claim." DE 44-7 at 7. Thus, the April 2016 retaliation claim is not time-barred because the agency made a specific finding that his submission was timely. Lanham , 400 F. App'x at 611 (timeliness objection is waived if an agency makes "a specific finding that the claimant's submission was timely").
Additionally, because plaintiff failed to address the government's arguments regarding the quid pro quo sexual harassment claim, the Court deems the quid pro quo sexual harassment claim abandoned. See DE 45; Taylor v. City of New York , 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003).
Although plaintiff's retaliation claim is timely, it cannot resuscitate his hostile work environment claims because the termination was not an instance of sexual harassment. In Patterson v. Cty. of Oneida, N.Y. , for example, the Second Circuit held that the plaintiff's hostile work environment claim was untimely because the only alleged discriminatory act within the limitations period was the termination of his employment, and there was no evidence that the termination, even if discriminatory, was in furtherance of the ongoing practice of racial harassment. 375 F.3d 206, 220 (2d Cir. 2004) ; see also Brown v. New York City Dep't of Educ. , 513 F. App'x 89, 91 (2d Cir. 2013) ("The letter notifying Brown of her termination cannot save her hostile work environment claim, because her termination was a separate and discrete act."); Percy v. New York (Hudson Valley DDSO) , 264 F. Supp. 3d 574, 582-84 (S.D.N.Y. 2017) (rejecting argument that termination was the last act in a continuous practice of sexual discrimination that perpetuated a hostile work environment, thereby invoking the continuing violation doctrine, because discrete acts such as termination cannot revive otherwise untimely acts). Because plaintiff's termination on April 1, 2016 was not an act in furtherance of the hostile work environment, it cannot render timely his hostile work environment claim.
Defendant did not waive its affirmative defense of untimely exhaustion of administrative remedies. The government waives a timeliness defense only if the agency makes "a specific finding that the claimant's submission was timely." Lanham , 400 F. App'x at 611 ; see also Belgrave , 254 F.3d at 387. In the Final Agency Decision, the government specifically stated that "all of the incidents identified by Complainant during EEO counseling occurred well beyond the 45-day deadline." DE 44-9 at 2. Although the Final Agency Decision stated that it "waive[d]" the 45-day deadline and adjudicated plaintiff's claims, plaintiff was advised that "his claims may be dismissed at a later stage due to untimely EEO Counselor contact." Id. Although an agency waives a timeliness defense in a subsequent lawsuit if "an agency decides the merits of a complaint without addressing the question of timeliness ," Bruce , 314 F.3d at 74-75 (emphasis added), here the agency specifically found that plaintiff's pre-April 2016 claims were untimely and warned him that the government may assert untimeliness as a defense in future litigation. Thus, the government did not waive the timeliness defense for the purposes of the instant action. Because plaintiff did not consult with an EEO counselor within the 45-day window with respect to the hostile work environment, quid pro quo sexual harassment, and pre-April 2016 retaliation claims and no exception applies, all of said claims are time-barred. The only claim for which plaintiff timely exhausted his administrative remedies is the retaliation claim arising out of his April 2016 separation.
V. RETALIATION
Title VII prohibits employers from retaliating "against any ... employee[ ] ... because [that individual] has opposed any practice" made unlawful by Title VII. 42 U.S.C. § 2000e–3(a). To make out a prima facie case of retaliation, a plaintiff must show: (1) they engaged in a protected activity; (2) their employer was aware of this activity; (3) the employer took adverse employment action against them; and (4) a causal connection exists between the alleged adverse action and the protected activity. Summa v. Hofstra Univ. , 708 F.3d 115, 125 (2d Cir. 2013) (citing Schiano v. Quality Payroll Sys., Inc. , 445 F.3d 597, 608 (2d Cir. 2006) ). Under the McDonnell Douglas burden-shifting framework, once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the employer to demonstrate a legitimate, non-discriminatory reason for its action. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; Summa , 708 F.3d at 125. If the employer demonstrates a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to establish, through direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation. Id.
The government does not dispute that plaintiff engaged in a protected activity by filing a complaint with the EEO and that the employer was aware of this protected activity. DE 48 at 13. Hence, the only issues to resolve are the third and fourth factors, to wit: whether the employer took an adverse employment action and whether there is a causal connection between the adverse action and the protected activity.
a. Adverse Action
Title VII's antiretaliation provision is not limited to discriminatory actions that affect the terms and conditions of employment. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). An adverse action must be "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. at 57, 126 S.Ct. 2405. The standard is objective. Id. at 68, 126 S.Ct. 2405. Hence, the adverse action must exceed "petty slights or minor annoyances." Id. ; see also Hicks v. Baines , 593 F.3d 159, 164-65 (2d Cir. 2010) (explaining the standard for Title VII retaliation claims). The purpose of the antiretaliation provision is to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. White , 548 U.S. at 68, 126 S.Ct. 2405 (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ).
Drawing all reasonable inferences in plaintiff's favor, the Court finds there is a genuine dispute of material fact regarding whether plaintiff suffered an adverse employment action. After plaintiff filed a formal EEO complaint, VAMC no longer treated plaintiff as a permanent employee and his temporary position subsequently expired. A reasonable jury may conclude that this effective termination would dissuade a reasonable worker from making a charge of discrimination. See, e.g. , Huan Wang v. Air China Ltd. , No. 17-CV-6662(MKB)(JO), 2020 WL 1140458, at *16 (E.D.N.Y. Mar. 9, 2020) (jury could reasonably find retaliatory adverse employment action where plaintiff suffered a de facto termination because defendant ended the management contract with plaintiff's company and entered into an identical agreement with a new company that did not re-hire plaintiff). Alternatively, a reasonable jury could also find that the VAMC's failure to convert plaintiff from temporary to permanent although Maggiore had selected him for the position was an adverse employment action because it was effectively a failure to promote. Indeed, the January 4, 2016 letter to plaintiff suggests he could have been converted to a permanent position through merit promotion. DE 44-13.
b. Causation
To satisfy the causation prong, the plaintiff must show that retaliation was a "but-for" cause of the adverse action, i.e. , that the adverse action would not have occurred in the absence of the retaliatory motive. Zann Kwan v. Andalex Grp. LLC , 737 F.3d 834, 845 (2d Cir. 2013) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ). A but-for cause need not be the only cause of the employer's actions; in fact, an adverse employment action may have multiple but-for causes. Zann Kwan , 737 F.3d at 845-46, 846 n.5. The causal connection needed for a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action. Summa , 708 F.3d at 127-28 (2d Cir. 2013) (four months between plaintiff's complaints and denial of job position); Espinal v. Goord , 558 F.3d 119, 129 (2d Cir. 2009) (six months).
Although temporal proximity alone is insufficient to rebut the employer's nondiscriminatory reason for the adverse employment action, temporal proximity combined with other evidence such as inconsistent employer explanations may defeat summary judgment. Zann Kwan , 737 F.3d at 847. 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, nonretaliatory reasons for its action." Id. at 846. "A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Drawing all reasonable inferences in the plaintiff's favor, the Court finds there is a genuine dispute of material fact regarding causation. In a case in which there is an email that says, "we are trying to relieve him of his duty," a reasonable jury may find that VAMC would not have engaged in the adverse employment action if it were not for the fact that plaintiff filed an EEO claim. The day after plaintiff spoke with management about Maggiore's harassment in May 2015, she scratched her thigh in front of plaintiff and stated, "I was scratching my leg. I don't want you [to] think I was scratching my crotch or anything." DE 47 ¶ 37. Then, less than two weeks after plaintiff filed his formal EEO complaint in November 2016, Maggiore told HR intern Angel Tejada in an email "we are trying to relieve [Hampton] of his duty." DE 44-6; DE 50-10. Around that same time, Tejada informed the HR Officer Wilmino Sainbert that Hampton's temporary appointment was expiring, and Sainbert realized that plaintiff had never been converted to a permanent position although Maggiore had filled out all the required paperwork back in 2013. DE 47 ¶ 73; DE 44-4 at 3-5, 22-23; DE 44-15; DE 50-2 at 32-33. At trial, the close temporal proximity between the filing of the EEO claim and HR's realization that plaintiff is not a permanent employee combined with Maggiore's statement that "we are trying to relieve [Hampton] of his duty" may be sufficient to rebut the government's proffered nondiscriminatory reason for the adverse employment action. Zann Kwan , 737 F.3d at 847 (temporal proximity to adverse employment action combined with inconsistent employer explanations may lead a reasonable jury to infer that defendant's explanation is pretextual).
Although the VAMC offered Hampton an opportunity to apply for a permanent position and offered to extend his temporary appointment once again, there is still sufficient evidence supporting plaintiff's retaliation claim to create a genuine issue of material fact. The government fails to explain why they could not have continued treating plaintiff as a permanent employee while his conversion was pending or, better yet, simply convert him to a permanent employee. Based upon Maggiore's testimony, it appears that in 2013 Hampton went through the competitive hiring process required for permanent employees. DE 50-2 at 32-33. Sainbert also recalled that the competitive hiring process took place. DE 44-4 at 7. Hence, a reasonable jury may find it implausible that plaintiff had to go through the competitive hiring process yet again in order to be converted to a permanent employee. Given Maggiore's admission that Hampton's work was "exceptional," the government's proffered reason for ending plaintiff's employment could reasonably be found to be pretextual. Finally, even if the jury found the expiration of plaintiff's temporary appointment were also a but-for cause of the adverse employment action, plaintiff could still satisfy the causation requirement because an adverse employment action can have multiple but-for causes. Zann Kwan , 737 F.3d at 845-46, 846 n.5.
Because there are genuine issues of material fact regarding whether plaintiff was subject to an adverse employment action and whether a causal connection exists between the adverse action and the protected activity, the defendant's motion for summary judgment is denied.
VI. CONCLUSION
Based on the foregoing reasons, it is hereby Ordered that the defendant's motion for summary judgment is denied in part and granted in part, as set forth in this opinion. The parties are advised that the case will be set for trial in January 2022, and counsel is directed to confer and submit a joint pre-trial order by October 29, 2021.