The more time that passes between an employee’s protected actions and alleged retaliation, the weaker the inference that the two incidents are linked. However, as demonstrated by a Seventh Circuit Court of Appeals case issued earlier this month, the passage of time alone will not defeat an otherwise plausible retaliation claim.
Malin v. Hospira, Inc. involved a plaintiff who filed an internal sexual harassment claim against a co-worker, despite her claims that her supervisor tried to talk her out of filing the complaint. Three years later, she filed an EEOC Charge, claiming that she had been denied a promotion by the supervisor who allegedly had tried to prevent her earlier complaint. The district court dismissed the retaliation claim, finding that the three years between the harassment complaint constituted a “fatal time gap.”
The Eleventh Circuit disagreed, finding ample evidence of retaliation despite the passage of time since the original incident. While the time gap weakened the retaliation inference, the court cited several other denied promotion opportunities during this time period, and the fact that the supervisor in question had the authority to grant or to block such promotions. The Eleventh Circuit noted that the plaintiff was finally promoted a short time after the supervisor left the company.
There is no absolute passage of time that will conclusively bar a later retaliation claim. Even in circumstances where a decade has passed, employers need to be sure to carefully document employment decisions involving a prior whistleblower, to be sure they can explain the legitimate, non-retaliatory business reasons for the decision made.