Avoiding Retaliation Claims - How Much Time to Wait After a Claim is Filed to Take Action
Do you like tricks or treats? Depending on your perspective, you'll either find something to like or dislike about a decision just issued by the District Court of Connecticut.
Judge Vanessa Bryant -- who has been busy issuing decisions and posting them online seemingly every few days -- granted a summary judgment motion by an employer, where the employee had claimed that she was retaliated against for filing a discrimination claim the prior year.
The court found no temporal link between the complaint and the "adverse employment action".
In Anderson v. Department of Children & Families, State of Connecticut, (Civil Action No. 3:05-cv-00167) (October 30, 2007), the Plaintiff had previously filed discrimination claims in both federal court and the CHRO in 1996 and 1997 (Her prior discrimination claims were dismissed in 1999).
According to the decision, in 2002, Elizabeth Anderson filed a new charge with the CHRO claiming race discrimination and retaliation. In late 2003, her employer, Department of Children & Families (DCF) placed her on administrative leave and investigated her for violating DCF policy. DCF ultimately reprimanded her and ordered her to return to work on March 12, 2004. She then filed suit in federal suit claiming claiming that DCF’s investigation and reprimand constitute retaliation. DCF countered that the investigation and reprimand were unrelated to Anderson’s CHRO complaints.
DCF ultimately moved for summary judgment submitting a memorandum of law and a statement of undisputed facts stating, among other claims, that the temporal proximity between the CHRO complaint in 2002 and the alleged retaliation in 2003 was insufficient to establish retaliation. The Plaintiff submitted her opposition brief (and somehow also claimed summary judgment as well, though the court later dismissed that as "moot".)
The court agreed with DCF:
As to the final requirement of a prima facie case, Anderson must show a causal connection between her protected activity—her 2002 CHRO complaint—and the adverse employment action—DCF’s investigation and reprimand in late 2003. Anderson relies on the concept of temporal proximity to establish the necessary causal connection. However, “[t]he cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close . . . .” Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing cases holding that three or four months between the protected activity and the adverse action is insufficient to establish causality in the absence of other evidence). In the present case, if DCF intended to investigate and reprimand Anderson in retaliation for her 2002 CHRO complaint, it could have done so much earlier than late 2003. Anderson has failed to satisfy the final requirement of a prima facie case.
The court's reasoning is an interesting use of logic and one that is used by employers in defending itself in other cases too. Employers often suggest: If I wanted to retaliate, why would I wait a year to do so? The court here, at least, found that logic convincing enough to throw out a retaliation claim. That is even more important here because the plaintiff had previously filed discrimination claims as well. If there was a case where an employer could be assumed to be "angry" for all the claims filed by the Plaintiff, this would be one. But the court refused to bite.
For employers considering employment action against employees who file discrimination claims, the case provides some support for the proposition that it can still take such action after a sufficient amount of time has passed. How much time? Clearly here, 15 months was enough. Could it be shorter? Certainly and the court's reference to a Supreme Court case of 3-4 months suggests that.
Avoiding retaliation claims should be a key concern for any employer who has had an employee file a discrimination clam. But the employer should not run scared out of each and every employment decision it needs to make. With a bit of a time buffer and more support for the decision, an employer can reduce the risk of liability on an inevitable retaliation claim.
We always seem like we're walking a fine line in advising clients on this issue. Common sense always tells us that retaliation should be a bang-bang event -- protected activity with the retaliation right on its heels. Our court of appeals in Cleveland recently published an opinion holding that 3 months is too long for retaliation. But faced with even a 3 month gap, I'm not comfortable advising clients that they are safe taking action without some more time having passed. It's not necessarily a question or running scared, and every case has to be evaluated on its own merits, but 3 months to me still seems too present too high of a risk of getting a jury trial.
Good point Jon. It all depends on the factual circumstances. Suppose an employer had a memo already prepared to terminate an employee on Monday, while I complaint came in the previous Friday. There, the employer might have a good defense to a retaliation claim, even if the action occurred just a few days afterwards. Courts have struggled with finding what that line is -- 3 months? 3 months and a day?