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Best Ohio Wrongful Termination Attorney Answer: What should I do if I report discrimination or retaliation in the workplace and fear that I might be fired for it? If my employer terminates me after I have complained about discrimination or retaliation, what are my rights? What is considered protected activity?

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All employees are protected under Title VII of the Civil Rights Act of 1964 and R.C. § 4112.02(I) from discrimination based on race, gender, national origin, religion, or disability. Likewise, The federal Age Discrimination in Employment Act and Ohio employment laws (found at Revised Code § 4112.02(N), § 4112.05 and § 4112.14) make discrimination against an employee based on his or her age unlawful. These laws also protect employees from retaliation from an employer if they bring or participate in complaints to their employers regarding forms of illegal discrimination or retaliation in the workplace.

Often, the toughest element of an employee’s retaliation claim is proving the causation nexus between his or her protected activity and the employer’s subsequent adverse employment action, such as a demotion or termination. Recently, the Third Circuit Court of Appeals gave their take on the causation element, specifically focusing on the “temporal proximity” between the protected activity and the adverse employment action.

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Specifically, in Blakney v. City of Philadelphia, the Third Circuit Court of Appeals, in a non-precedential decision, discussed two separate issues regarding the “temporal proximity” analysis and whether the temporal proximity, or the time between the protected activity and the adverse employment action, could, by itself, serve as proof establishing causation for a retaliation claim.

First, the Court discussed what is “close enough” in order to support causation in a retaliation claim:

We have found that a temporal proximity of two days is unusually suggestive of causation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989) (reversing summary judgment for the defendant when plaintiff was fired two days after his employer received notice of his EEOC complaint), but have held that a temporal proximity greater than ten days requires supplementary evidence of retaliatory motive, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000) (finding that “where the temporal proximity is not so close as to be unduly suggestive,” the appropriate test is “timing plus other evidence”); see also Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir.2004) (two months is not unusually suggestive); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir.2007) (three months is not unusually suggestive).

Thus, the Court seems to suggest, based on its citations to other case law, that a period up to 10 days is “unusually suggestive” of causation for a retaliation claim, but beyond that amount of time, not so much.

Second, the Court looked at how this period of time should be calculated during a court’s analysis:

We measure temporal proximity from the date on which the litigant first files a complaint. See Jalil, 873 F.2d at 703. Here, Blakney filed an EEOC complaint in 2008 and sued in federal court in 2010. He voluntarily resigned in January 2011 and first sought reinstatement in September 2011—four days after summary judgment was entered against him in the Prior Action. He sought reinstatement a second time in December 2011. Thus, the period between the filing of the EEOC complaint and the City’s failure to reinstate Blakney spans three years, which falls well short of the “unduly suggestive” mark.

This second part could be the most troubling to understand, especially when the Court uses the vague term, “complaint.” What happens if an employee files a complaint with her boss in January, then files an EEOC complaint on May 1 and then is fired on May 10? Which “complaint” acts as the starting point? Does the filing of the EEOC complaint restart the clock? In that situation, certainly the employee’s attorney would say that the termination was based on the EEOC complaint being filed merely nine days earlier, while the employer’s attorney would point out that no action was taken against her for complaining to the employer back in January. It is probably safe to say that the Blakney decision will be revisited when a fact pattern like this calls the vagueness of Blakney’s holding into question.

So where does this leave us? Closeness in time will help a claim, but a longer wait will not kill a claim. If a boss seems intent on retaliating, it is important to document all perceived acts of retaliation. Because each situation is different, it is critical to contact a qualified employment law attorney to help you before you are actually fired.

If you are searching “my boss is retaliating against me”; “I need a lawyer because I have been wrongfully fired or terminated”; or “I have been discriminated against based on my …” race,national origin,gender,age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

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