Timing of Retaliation Claims, Quirky Question # 61
Quirky Question # 61:
I am the General Counsel of a small company. As our company’s only attorney, I have to provide expertise in a wide variety of substantive areas. In connection with retaliation claims, I occasionally hear about “temporal proximity.” When I’m advising my clients, I’d like to be able to provide them some clear guidance regarding the length of time during which they need to be sensitive to the possibility of retaliation claims. Can you share any insights into this issue?
Dorsey’s Analysis:
Retaliation claims are becoming increasingly common. Numerous federal and state statutes prohibit retaliation against employees availing themselves of various types of statutory protections. Retaliation claims can arise in connection with the federal and state anti-discrimination prohibitions (Title VII, the ADEA, the ADA, and parallel state statutes providing protection against discriminatory conduct). Indeed, the EEOC reports that retaliation claims are one of the fastest growing categories of discrimination charges. Retaliation claims, however, can arise in many other contexts as well (e.g., OSHA, workers’ compensation, FLSA, FMLA, etc.). Virtually every statutory scheme that affords some type of protection to employees also prohibits retaliation against employees who exercise their rights under those statutes.
The “temporal proximity” you reference is merely the length of time between the protected conduct and the subsequent adverse job action. The closer in time between the protected conduct (e.g., filing a complaint of sexual harassment) and the adverse consequence (e.g., transfer or discharge), the more likely courts are to infer a causal relationship between the protected conduct and the employer’s subsequent action. The more remote in time, the more likely that courts will conclude that there were other, unrelated or intervening factors that motivated the subsequent decision.
There is no hard and fast guideline I can provide you regarding the appropriate time lag between protected conduct and later adverse action. My intuitive sense (based on reading a lot of retaliation cases) is that courts are somewhat skeptical about adverse job actions that occur within six months of an employee exercising some statutorily protected right. Between six months and twelve months, courts are more receptive to the employers’ arguments that there were other factors that caused the adverse decision. When a year or more has passed, courts are somewhat skeptical about the employees’ arguments that the subsequent adverse job action was retaliatory.
Although, in general, the closer the temporal link, the more likely courts will infer a retaliatory motive, every case must be evaluated on its individual circumstances. For example, imagine a situation where an employee complained of age discrimination on October 15 and an employer terminated his employment on October 20. It would surprise no one if that employee then accused the company of retaliatory conduct based on his protected conduct of filing a charge of discrimination. But, if the company had discovered on October 16 that the employee had been embezzling corporate funds for the preceding year, it certainly would be justified in terminating the employee. Such a decision would not be “retaliatory” notwithstanding the temporal proximity between the charge-filing and the employee’s termination.
A recent case from the federal court in the Eastern District of Tennessee illustrates the flip side of this situation. In Taylor v. Gatlinburg, No. 3-06-00273 (E.D. Tenn. August 26, 2008), a District Judge denied the City’s motion for summary judgment on the plaintiff’s retaliation claim. The plaintiff, Mike Taylor, a Captain in the Fire Department, contended that the City of Gatlinburg refused to let him take a test to become Fire Chief in retaliation for his involvement in a Fair Labor Standards Act lawsuit (FLSA). The surprising fact of the case was that Taylor and nine others had participated in the FLSA lawsuit 15 years before he was denied the opportunity to seek the Fire Chief position. Really! I’m not making this up.
The court downplayed the significance of the 15-year gap between the protected conduct and the adverse job action, perhaps justifiably. One reason the court did so was that the City seemingly advanced pretextual reasons for why Taylor was not selected as the Fire Chief. The City pointed to his lack of a college degree, but three of the four candidates who were allowed to proceed through the application process beyond the point at which Taylor was eliminated did not have a college degree. Further, the individual selected to be the Chief did not have a college degree. The court also examined other evidence suggesting a possible nexus between Taylor’s participation in the FLSA suit and his rejection for the Chief position. This evidence included statements by individuals that the City Manager, Cindy Ogle, who made the decision regarding who would be the Chief had been the City Manager 15 years earlier when the FLSA suit was brought and had periodically made critical comments about those who brought the suit, including Taylor. Taylor offered additional evidence that the Ms. Ogle also had stated that Taylor would never be the Chief because he had “sued the City.”
When evaluating this outcome, keep in mind the procedural posture of the Taylor lawsuit. The case reached the court on a motion for summary judgment by the City, a context in which all factual disputes are resolved in favor of the non-moving party (here, Taylor). Whether Taylor will be able to persuade the fact-finder at trial that the City Manager still harbored resentments about the FLSA litigation some 15 years after it had concluded remains to be seen. If he succeeds on his retaliation claim, it will be the longest time “gap” of which I am aware in a retaliation case.
Two final points regarding retaliation claims. First, as I tell my clients, do not convert an infirm underlying claim into a compelling retaliation claim. For example, an individual may file a charge of age, race or sex discrimination. The company may know that this claim is wholly without merit. But, if the company’s response to this “frivolous” claim is to terminate the employee or take some other adverse job action, the company may have created a very strong retaliation claim for the employee. In other words, a retaliation claim does not have to be connected to a valid underlying claim; it will succeed or fail on its own fact pattern.
Second, when confronted with a claim of discrimination, or a claim alleging some other type of statutory violation, it is preferable to bring in an objective observer when trying to determine how to address some other aspect of the employee’s conduct. For example, if an individual accuses a supervisor of sex discrimination and later seeks a promotion, it would be advisable to involve someone other than the accused in the determination of whether the employee should be promoted. If the accused supervisor is the decision-maker and decides that the employee should not receive the promotion, you can be confident that the retaliation claim will soon follow. Even if the negative decision on the promotion was entirely legitimate, your firm still will have to explain why it let the accused make the promotion decision and articulate how that person was able to divorce him- or herself from the underlying accusations of discriminatory conduct.
