Defendant clearly demonstrated that Toole relied on credible evidence that Gilman caused the desk incident as well as his prior offenses in deciding to terminate Gilman. Gilman did not prove by a preponderance that Toole and Rizzuto fired him in retaliation for his complaints.
A. The Legal Standard
The three step process established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) governs the evidentiary burdens in Title VII cases. See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993)
First, plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. 113 S. Ct. at 2752. Second, if plaintiff establishes a prima facie case, the burden shifts to defendant "to articulate some legitimate, non-discriminatory reason" for defendant's actions. Burdine, 450 U.S. at 253 (quoting Green, 411 U.S. at 802). This burden of articulation or production does not require defendant to prove an absence of a discriminatory motive. St. Mary's Honor Ctr., 113 S. Ct. at 2749. Defendant "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus" or raise "a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254-55, 257.
Finally, plaintiff has the burden of proving by a preponderance of the evidence that the legitimate reason proffered by defendant is not the true reason, but is instead a pretext for discrimination. Burdine, 450 U.S. at 256. Plaintiff must prove discrimination "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. "It is plaintiff's task to demonstrate that similarly situated employees were not treated equally." Id. at 258. Plaintiff, at all times, has the ultimate burden of persuading the trier of fact that defendant intentionally discriminated against him. St. Mary's Honor Ctr., 113 S. Ct. at 2749.
To establish a prima facie case of retaliation, Gilman must show: (i) activities protected under Title VII; (ii) employer knowledge of the activities; (iii) the employer's adverse action against Gilman; and (iv) a causal connection between the protected activities and the discipline, rather than that other factors contributing to the adverse employment action. See, e.g., Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994); Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134 (2d Cir. 1993); Manoharan v. Columbia Univ. Col. of Phys. & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Davis, 802 F.2d 638, 642.
B. Conclusions of Law
The record contains little evidence that Toole and Rizzuto knew of the EEO complaints and none that the suspension and dismissal resulted from such knowledge. In short, Gilman failed to establish the "causal connection" element of his prima facie case. Gilman's failure of proof relieved defendant of any "burden of production." Nonetheless, defendant articulated legitimate nondiscriminatory reasons for the disciplinary actions. Defendant does not dispute that Gilman's filing of EEO complaints constitutes "protected activity" or that the supervisors "took adverse action" by suspending and terminating him. Defendant denies that Gilman's union grievances constitute protected activity. I need not decide whether the union grievances are protected activity because even assuming that they are, Gilman still has not proved causation. Similarly, I need not decide whether Gilman proved that his supervisors knew of his EEO complaints at the time they disciplined him. Even with proof of knowledge plaintiff has failed to carry the day. Knowledge alone does not prove retaliation. An employer's knowledge of an employee's protected activity,
without more, cannot itself be sufficient to take a retaliation case to the jury. Were the rule otherwise, then a disgruntled employee, no matter how poor his performance or how contemptuous his attitude toward his supervisors, could effectively inhibit a well-deserved discharge by merely filing, or threatening to file, a discrimination complaint.
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991); see Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.) ("complainant [who files a complaint is not clothed] with immunity for past and present inadequacies, unsatisfactory performance, and uncivil conduct in dealing with subordinates and with his peers"), cert. denied, 488 U.S. 892, 102 L. Ed. 2d 218, 109 S. Ct. 228 (1988).
Gilman offered no direct evidence of causation. Absent direct evidence a Title VII plaintiff can prove the causal connection element of her prima facie case indirectly where the adverse employment action closely follows her protected activity. Manoharan, 842 F.2d at 593. Gilman filed so many EEO complaints that some of them were bound to precede his suspensions and termination. This, however, proves little. For example, Gilman filed only one EEO complaint against Toole before she suspended him in December of 1987. Gilman had filed that complaint four years before the suspension and it had long since been dismissed. One month and again six months after that suspension Gilman filed further EEO complaints against Toole. A time graph suggests that Gilman sought to retaliate against Toole by filing complaints against her following the suspension, rather than vice-versa.
A Title VII plaintiff can also indirectly prove causal connection by showing "a similarity between her conduct and that of non-protected employees who were treated differently." Williams v. Casey, 691 F. Supp. 760, 767 (S.D.N.Y. 1988). Gilman's efforts to raise such an inference failed. The allegedly analogous employees were not supervised by Toole and Rizzuto, did not work in the same division of the Postal Service, held different positions, had different disciplinary records and conducted themselves differently from Gilman. (JX 45, 46). Gilman argues that the supervisors discriminated against him because Woods and Borick received lesser discipline. Not so. Woods and Borick were not "similarly situated" to plaintiff because they had, among other things, different supervisors, held different positions, and Toole had determined that Gilman was responsible for the assaults. See Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 191 (1st Cir. 1990) ("evidence that the co-worker[s] were not discharged is insufficient to sustain [plaintiff's] burden with regard to pretextuality"). In other words:
Employees are not "similarly situated" merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.