Best Ohio Employment Discrimination Attorney Answer: If a year passes between my reporting of race discrimination at work and my employer’s retaliation, do I still have a retaliation claim? How much time can pass between my complaining about gender discrimination and when my boss can fire me? If my employer waits a really long time before retaliating against me for filing a Workers’ Compensation Claim, is he in the clear?
While revenge may be a dish best served cold, the more time that passes between an employee’s engaging in legally protected conduct - reporting unlawful discrimination or filing a Worker’s Compensation Claim, for example – and an employer’s act of retaliation, the more difficult it may be to establish a causal connection between the two events. However, as the United States Sixth Circuit Court of Appeals (Ohio) recently pointed out, in retaliation cases there is no magic amount of time, between an employee’s legally protected activity and an employer’s subsequent retaliation, that will automatically absolve the employer of liability. Certainly, if there was a set number of days, months or years, your evil employer, boss, or manager would simply count off the time on the calendar, circle the date and bide the time until it was safe to fire you.
As employment discrimination attorneys have blogged about employment retaliation in the past, the same laws that protect employees from unlawful retaliation in the workplace(Title VII of the Civil Rights Act of 1964, ADA, ADEA, Ohio’s R.C. § 4112) also prohibit employers from retaliating against an employee who opposes unlawful discriminatory conduct. It is unlawful to discriminate against an employee because the employee has opposed any unlawful discriminatory practice or because the employee has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing alleging unlawful discrimination. Plainly, your employer may not retaliate against you because you have opposed your employer’s discriminatory behavior.
Most employers, for obvious reasons, are not going to come right out and say, “We are retaliating against you because you complained that we discriminate against Black people.” When there is no direct evidence that the employer has retaliated, an employee may establish a prima facie case that she was retaliated against by showing that: (1) you engaged in legally protected conduct; (2) your employer, boss or supervisor was aware that the employee engaged in such legally protected conduct; (3) subsequent to this awareness, the employer, boss or manager took an an action adverse to you as the employee; and, critically, (4) there was a causal connection between the legally protected conduct and the adverse employment action. If the employee can make out a these elements, what employment discrimination lawyers call a prima facie case, the burden then shifts to your employer to show a legitimate, non-retaliatory reason for the adverse employment action.
It was the fourth factor above that was recently at issue in Sharp v. Aker Plant Services.
In 2009, Aker terminated Mr. Sharp as part of a “workforce reduction.” At the time of the termination, Mr. Sharp’s supervisor informed him that the company was letting him go, instead of younger, less experienced employees, because the company wanted to groom a younger employee who would be around longer. Sharp brought an age discrimination suit against the employer. In the original age discrimination case, the Sixth Circuit held:
But Aker says that although Hudson mentioned Kirkpatrick’s younger age, he did not mean to discriminate unlawfully because of Sharp’s age. Instead, Aker insists that Hudson merely was trying to articulate — inartfully, as it turns out — a legitimate business purpose distinct from age. The Supreme Court has taught that an aspect of employment that could correspond to age, such as years in service, could be a legitimate basis to distinguish among employees for employment privileges and benefits, say in the area of pensions, as long as the other feature is “analytically distinct” from age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). …
Hudson’s remarks in this case, taken in the light most favorable to the plaintiff, disclose no analytical step between computing an employee’s potential longevity with the company and his age. Instead, Hudson stated in essence that Aker’s succession plan was to hire or retain younger workers at the expense of older workers because it was more likely that the former would stay with the company longer than the latter. That reasoning suggests no analytical path that strays from an age-based rationale. It certainly cannot be said to be “analytically distinct” from age. Sharp therefore has offered evidence that Hudson used potential longevity with the company as a proxy for age.
Aker also argues that Sharp acknowledged, and Hudson agreed, that Hudson’s comments could apply to anyone because a younger individual could leave at any time. Assuming that is true, potential longevity is no measuring stick at all. It simply becomes another way to “artfully” say: “We’ve chosen the younger candidate because, well, he is younger.” That constitutes direct evidence that age was the reason for terminating Sharp, and summary judgment in favor of Aker should not have been granted.
Now, let’s turn to the next decision by the Sixth Circuit Court of Appeals (Ohio) in Sharp v. Aker Plant Services.The employer’s actions while the original age discrimination suit was still pending got them in more hot water than the original claim. In 2010, a staffing agency attempted to place Mr. Sharp in a different position at Akers. The company responded by informing the staffing agency that it knew of Sharp and did not want him for the position because he had violated a company rule the last time he worked for them. Interestingly, the rule Sharp allegedly violated concerned bringing recording devices onto company property. Sharp had brought a recording device onto company property a few days after being informed that he was terminated…in order to document that he was being terminated because of his age. Akers defended against the claim of retaliation by asserting that because fifteen months had passed since Sharp made the initial claim of discrimination and the time that Akers declined to rehire him, Sharp could not show a causal relationship between the two events.
In considering whether there is a causal connection between an employee’s legally protected conduct and an employer’s retaliation, a court may consider whether there is a temporal connection between the two events. Common sense dictates that if an employee complains on a Monday that she is being discriminated against and on Tuesday she is fired, a fact finder should consider the timing. At the opposite end of the spectrum, if an employee complains about discrimination and is passed over for a promotion some eight years later, absent any other evidence of employment retaliation, a court ought to be allowed to infer that the events are likely unrelated.
Mr. Sharp’s case is unique, though. The protected activity that gave rise to the retaliation occurred after he was separated from the company and, as such, the company had no opportunity whatsoever to retaliate against him until the staffing agency contacted Akers about potentially rehiring him. At literally its first opportunity to do so, Akers retaliated against Sharp for opposing age discrimination. It just took fifteen months for such an opportunity to present itself. The court held that such a scenario presented enough evidence of retaliation to put the matter to a jury:
The district court erred. As an initial matter, the court assessed Sharp’s ability to show temporal proximity and to produce comparators as discrete inquiries. The court needed instead to consider those two factors in light of one another—together with Sharp’s other circumstantial evidence—to determine whether “an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action.” Nguyen, 229 F.3d at 563 (“[N]o one factor is dispositive in establishing a causal connection . . . .”); see also Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (holding that a plaintiff must adduce supporting evidence of causation in inverse proportion to the temporal proximity between his protected activity and the adverse action).
Second, the district court erred in rejecting Sharp’s evidence of temporal proximity on the sole ground that more than six months elapsed between his letter and Aker’s refusal. To be sure, this court requires a very brief interval between protected activity and adverse action before it permits a plaintiff to demonstrate causation solely on the basis of temporal proximity. See Mickey, 516 F.3d at 524–25. But our precedent expressly rejects the district court’s position that a span of more than six months between protected activity and adverse action categorically precludes finding causation. Dixon, 481 F.3d at 335; see also Harrison v. Metro. Gov’t of Nashville & Davidson Cnty., 80 F.3d 1107, 1118–19 (6th Cir. 1996) (holding that the evidence supported a prima facie case of causation where the alleged retaliation occurred one year and three months after the protected activity), overruled on other grounds as recognized by Jackson v. Quanex Corp., 191 F.3d 647, 667 n.6 (6th Cir. 1999). The need to look past a six-month interval “is especially true in the context of a reinstatement case, in which the time lapse between the protected activity and the denial of reinstatement is likely to be lengthier than in a typical employment-discrimination case.” Dixon, 481 F.3d at 335.
Finally, the court erred in rejecting Sharp’s proposed comparators on the ground that none previously filed age-discrimination suits against Aker. A plaintiff need only “demonstrate that he or she is similarly situated to the claimed comparator in all relevant respects. In the disciplinary context, . . . the plaintiff and her proposed comparator must have engaged in acts of comparable seriousness.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 916–17 (6th Cir. 2013) (internal citations and punctuation omitted). The filing of an age discrimination suit matters not in ascertaining whether other employees engaged in comparable misconduct. The district court thus unreasonably circumscribed Sharp’s ability to produce a comparator. …
Considering the evidence in the light most favorable to Sharp, one could reasonably infer that Aker declined to rehire Sharp in retaliation for his then-pending discrimination action. Yes, it was fifteen months later. But because Aker terminated Sharp months before he disclosed his intent to sue, no opportunity for retaliation manifested until the staffing agency tried placing Sharp back at DuPont’s Louisville plant. Aker rejected Sharp on the same day it received his application. And Atkins, the Aker employee who fielded the proposal that Sharp fill Aker’s vacancy at the DuPont plant, became personally involved in the underlying lawsuit just two months before rejecting him. This combination of circumstances means that the fifteen-month interval between letter and rejection could be consistent with a retaliatory motive. In addition, Sharp offers evidence that his co-worker, Gary Stanfield, brought a smart phone to the plant daily between 2008 and Sharp’s rejection. … The record supports Sharp’s contention that Stanfield’s phone came equipped with video recording equipment and that Stanfield used the phone to take pictures while at the plant. … Despite Hudson’s deposition statements that such conduct violated worksite policies, Aker never disciplined Stanfield. … A jury could reasonably find, therefore, that Stanfield brought a multi-purpose, handheld electronic device to the plant and used it as a camera or recording device. These facts similarly situate Stanfield and Sharp in all aspects relevant to Aker’s stated reason for rejecting Sharp’s application: “the use of electronic recording devices on company property.” Given Sharp’s low burden of production at this first stage of the inquiry, see Dixon, 481 F.3d at 333, the evidence concerning Stanfield and the chronology of events establishes a prima facie case of retaliation
The employer attempted to serve its revenge cold, but it still got itself into hot water.
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