Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

Retaliation under Title VII: A Three-Year Gap Is Not Enough to Refute Causation Under Certain Circumstances


Retaliation under Title VII: A Three-Year Gap Is Not Enough to Refute Causation Under Certain Circumstances

In retaliation cases under Title VII of the Civil Rights Act, the question that frequently arises in evaluating the requisite element of causation is whether “timing is enough.”  Many courts have held that although temporal proximity between the protected activity and the adverse employment action is sufficient to establish a prima facie case, such close timing, standing alone, is insufficient to meet plaintiff’s ultimate burden of proof.  But in Malin v. Hospira, Inc.,___ F.3d ___, Case No. 13-2433 (August 7, 2014), the Seventh Circuit addressed the converse question.  The issue addressed in Malin was whether a three-year gap conclusively refuted a retaliation claim.  The appellate court expressly rejected the principle that “the passage of a particular amount of time between protected activity and retaliation can bar [a retaliation] claim as a matter of law.”  Slip op. at 2.  

Plaintiff had first complained of sexual harassment by her indirect supervisor in 2003, against the strong admonitions of her supervisor’s manager in the IT Department, who remained the ultimate decision-maker over personnel decisions involving plaintiff.  During the ensuing three years, plaintiff applied for several promotions, but was never promoted even though her immediate supervisors told her that they would recommend her for a promotion.  As a result of a reorganization of the IT Department in 2006, plaintiff was effectively demoted when the same manager created a new position over plaintiff.  She performed the duties of the newly created position and received praise from her supervisor and the outside consulting company who advised the company on the reorganization, but was not actually promoted to the new position and never received the higher salary grade assigned to that job.  When the position was ultimately filled, plaintiff was not considered for the opening.  Despite the fact that three years had elapsed between the plaintiff’s 2003 sexual harassment complaint and the 2006 reorganization of the IT Department, the court overturned summary judgment in the employer’s favor because the plaintiff offered evidence of other acts of retaliation by the same manager during that time span “that bridges the gap between the two events.”  Slip op. at 2. 

Significantly, for all such promotions sought by plaintiff, the final decision-maker was the manager who instructed plaintiff’s supervisor in 2003 to do all he could to stop her from complaining to the Human Resources Department about the alleged sexual harassment.

The district court ruled that three years was too long a time span to support an inference of retaliation.  However, the Seventh Circuit refused to hold that a three-year period was a “fatal time gap” that would refute a finding of retaliation under Title VII.  The court stated:

. . . a long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation.

Slip op. at 14.  Because the time interval was long enough to weaken an inference of retaliatory animus, the appellate court allowed plaintiff to rely on other circumstantial evidence to support her claim.  Describing her manager as having “a long memory,” the court cited the evidence that her supervisors’ efforts to promote her to the newly created position following the 2006 IT reorganization were consistently rebuffed.  The court determined that a reasonable jury could therefore find that the manager’s decision not to promote plaintiff, and to effectively demote her, in connection with the 2006 reorganization was retaliatory even though three years passed after she engaged in protected activity.  Moreover, plaintiff was entitled to introduce evidence regarding the company’s failure to promote her during those three years, even if those decisions were time-barred, as circumstantial evidence that the 2006 reorganization was part of a pattern of retaliation.  It was error for the district court to overlook this evidence.

            This case is instructive to management who might assume erroneously that an employee no longer retains the mantle of protection against adverse employment actions when the employee’s prior complaints of alleged discrimination or harassment occurred several years earlier.  In contemplating the layoff or dismissal of an employee, an employer should go back through the employee’s entire personnel record to determine whether the employee ever engaged in protected activity.  If so, the employer should be vigilant to ensure that the decision-maker has no ax to grind against the employee and that any adverse employment actions are fully supportable, regardless of how long ago the protected activity occurred.