Usually, one of the toughest elements to prove in a retaliation case is causation. "Causation" means that the employer's unlawful act was the cause of the employee's injury. Establishing causation requires a showing that the injury would not have occurred "but for" the employer's wrongful conduct. The most common type of circumstantial evidence of a causal connection is referred to as "temporal proximity." The reasoning is, the sooner the adverse action is taken after the employee's protected activity, the stronger the implication that the protected activity was the cause. Generally, courts have found that any length of time more than a few months is too remote to support a finding of causation. But, in a recent case, one court held that three years was not too long.
There Is No Bright Line Rule for Causation
Alabama courts have routinely held that a three to four month time period between an employee's protected activity and the employer's adverse employment action, along with other evidence, may be sufficient to establish causation. However, those courts have also held that "gaps of time standing alone" do not preclude a retaliation claim. In other words, courts are not willing to set out a bright line rule. Each case must be analyzed individually. In a recent Seventh Circuit case, dealing with Title VII and FMLA retaliation, the court rejected the idea that the passage of a specific amount of time between protected activity and retaliation can actually bar a retaliation claim as a matter of law.
In Malin v. Hospira, Inc., et al., the plaintiff sued her employer for retaliation that began in 2003 after she made a complaint of sexual harassment; the complaint culminated in promotion denials and a demotion in 2006. The trial court dismissed the case for lack of causation. However, the Seventh Circuit Court of Appeals disagreed. Instead, the Court found that the plaintiff had offered evidence of other retaliatory behavior between the protected activity in 2003 and the demotion in 2006, and that this evidence "bridged the gap" between the two events. It was for the jury to decide if the conduct was retaliatory.
Why There Cannot Be a Bright Line Rule
The employer argued that the three-year time gap in the Malin case was "fatal" and foreclosed any inference of retaliation. The appellate court did not agree, stating that a bright line test would:
"…ill serve our obligation to be faithful to the legislative purpose of Title VII. The facts and circumstances of each case necessarily must be evaluated to determine whether the evidence in this case permits an inference that [the supervisor] had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006."
This reasoning is supported by the United States Supreme Court decision in National Railroad Passenger Corp. v. Morgan. There, the Supreme Court specifically stated that Title VII does not "bar an employee from using the prior acts [that fall outside the statute of limitations] as background evidence in support of a timely claim."
If you feel you have suffered some form of workplace retaliation, or if you have any questions regarding your employment rights general, please contact Wrady Michel & King , either online or by calling us at (205) 265-1880.