problem. However, this does not show that Mattox and Marvelli
took reasonable steps to file a complaint with SIUH prior to
February. Plaintiffs do not indicate that they attempted to
speak to anyone at SIUH about filing a complaint prior to
February. Furthermore, it is undisputed that Walsh, the acting
Executive Director, visited CHAPS, at least on some occasions,
but plaintiffs did not inquire about how to lodge a complaint.
The first indication that plaintiffs contacted someone at SIUH
is Marvelli's claim that she called SIUH on Monday February 8,
1999. Plaintiffs met with SIUH representatives 7 business days
later, on the following Tuesday, and on February 17, 1999, 8
business days after Marvelli claims she made her first phone
call to SIUH, defendants instituted protective measures. A
reasonable jury could not conclude that this response time of
approximately a week and a half was anything but prompt. See
Walsh v. National Westminster Bancorp., 921 F. Supp. 168
(S.D.N.Y. 1995) (granting summary judgment in favor of an
employer on a sexual harassment claim where the employer
investigated a sexual harassment claim and terminated the
offending employee within 6 days).
Mattox's and Marvelli's Retaliation Claims
Retaliation claims under Title VII and § 1981 are analyzed
under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973). Richardson, 180 F.3d at 426; Lizardo v. Denny's,
Inc., 270 F.3d 94, 105 (2d Cir. 2001) (holding that retaliation
claims are cognizable under § 1981). In order to establish a
prima facie case of retaliation, a plaintiff must show (1)
participation in an activity, protected under
anti-discrimination statutes, that is known to the defendant,
(2) an employment decision or action disadvantaging the
plaintiff, and (3) a causal connection between the protected
activity and the adverse decision. Richardson, 180 F.3d at
426. A causal connection "may be established either indirectly
by showing that the protected activity was followed closely by
discriminatory treatment, or through other evidence such as
disparate treatment of fellow employees who engaged in similar
conduct, or directly through evidence of retaliatory animus
directed against a plaintiff by the defendant." Johnson v.
Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citation and quotation
omitted) (emphasis in original).
Once a prima facie case has been established, the employer
must articulate a legitimate, non-discriminatory reason for
having taken the action of which the plaintiff complains. Id.;
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981);
McDonnell-Douglas Corp., 411 U.S. at 802-03, 93 S.Ct. 1817. If
this is done, the burden shifts back to the plaintiff to prove
that the allegedly legitimate reason is merely a pretext for
discrimination. McDonnell-Douglas Corp., 411 U.S. at 804, 93
S.Ct. 1817. However, "a reason cannot be proved to be a `pretext
for discrimination' unless it is shown both that the reason was
false, and that discrimination was the real reason." St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993) (citation omitted); see also Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 146, 120 S.Ct.
2097, 147 L.Ed.2d 105 (2000) (holding that the fact-finder may
infer discrimination from the falsity of the employer's
explanation). In the summary judgment context, St. Mary's
requires a plaintiff to "establish a genuine issue of material
fact either through direct, statistical or circumstantial
evidence as to whether the employer's reason for discharging her
is false and as to whether it is more likely that a
discriminatory reason motivated the employer to make the
adverse employment decision." Gallo v. Prudential Residential
Services Ltd., Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994).
In this case, it is undisputed that Mattox and Marvelli
engaged in protected activity by complaining about Huie's
alleged harassment, and that they were subject to the adverse
employment action of termination. However, assuming that Mattox
and Marvelli could meet the minimal requirements of establishing
a causal connection based on the fact that only one month passed
between the protected activity and the adverse employment
action, St. Mary's Honor Ctr., 509 U.S. at 506, 113 S.Ct.
2742, they have not raised a genuine issue of material fact that
defendants' articulated reason for their termination was
pretextual and retaliation was the true reason.
Defendants articulate a legitimate, non-discriminatory reason
for terminating Mattox and Marvelli. CHAPS, which SIUH had just
acquired, was losing $400,000 annually because of a lack of
patients, and Walsh decided to outsource CHAPS' operations to
UPG. The physicians at UPG had their own patient base, and Walsh
thought that this would improve CHAPS cash-flow. As a result,
defendants claim they terminated all CHAPS' employees. It is
undisputed that neither Huie nor Appel were involved in any
manner with Walsh's decision to contract with UPG and terminate
Mattox and Marvelli.
Plaintiffs argue that defendants have failed to offer a
legitimate, non-discriminatory reason because they do not submit
business records in support of their claims. In reply, Walsh
submits an independent audit dated December 28, 1999 from KPMG
showing a negative cash flow of $400,000. Defendants claim that
this report was provided to plaintiffs during discovery.
Plaintiffs also argue that the reasons offered by Walsh in his
deposition were too vague and conclusory to satisfy defendants'
burden of articulating a legitimate, non-discriminatory reason
for Mattox and Marvelli's terminations. In support of this
argument, plaintiffs cite to Walsh's testimony that the reason
for terminating Marvelli was that "[w]e were deciding to go in a
different direction, and I felt that it was better to everybody,
during this reconstruction — let's go start with a fresh team"
and "I just felt that besides her sporadic attendance when I was
there, that she was entrenched with the same model, the same
concept that was already there. The culture was there and the
model. I felt a new team was the right decision." However,
Walsh's full response to questions about why defendants were
terminated is "clear and specific." See Dister v. Continental
Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988). Walsh
testified as follows:
Q Why did you determine that they [Mattox and
Marvelli] should be terminated?
A It was a business decision. The two or three weeks
that I spent there, I noticed a lack of patients,
and the time that the doctors were doing noting
because of the lack of patients.
I then looked at the revenue that were
being generated there, and the actual costs of
the doctors and Ms. Marvelli, and I decided that
we should go in a different direction.
Q What was the direction that you decided to go in?