Time Is On Your Side — Or At Least, It Can Be

by Butler Snow LLP
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Defending retaliation claims can often be an uphill battle, but a recent Sixth Circuit decision serves as a good reminder of not only the elements an employee must show to establish his or her case, but also how employers can overcome claims by having legitimate reasons for their decisions.  The decision may also allay fears of some frivolous retaliation claims by confirming that too much time between the protected activity and the alleged retaliation can prove fatal to the claim.

Facts

Geraldine Fuhr worked at Hazel Park High School as a teacher and coach since 1989.  In 1999, Fuhr sued the school district alleging sex discrimination under Title VII and state law based on the employer’s failure to hire her as the boys’ varsity basketball coach, in addition to her role as girls’ varsity basketball coach.  A jury found in favor of Fuhr, and in 2001, the court ordered that she be instated as varsity boys’ coach, a decision affirmed by the Sixth Circuit Court of Appeals in 2004. 

Unrelated to Fuhr’s case, parents filed suit in 2001 against the state athletic association alleging separation of the girls' and boys' basketball seasons violated Title IX, leading to a decision in April 2007 to align the girls' and boys' schedules for the same time.  Although Fuhr served as coach for both teams since 2001, in anticipation of the Title IX case decision and simultaneous seasons, in June 2006, the school removed Fuhr as coach of the girls’ team, leaving her as coach of the boys’ team only. 

In 2007, 2008, and 2009 Fuhr filed charges with the EEOC for sexual discrimination and retaliation, alleging that since winning her first case, she had been harassed and that her authority had been undermined.  After receiving a right to sue letter, she filed suit in April of 2008 specifically alleging that she was dismissed as the girls' varsity coach in retaliation for winning her first case.  The district court granted summary judgment to the employer on the claims.  Fuhr appealed the summary judgment on her retaliation claims to the Sixth Circuit. 

Sixth Circuit Decision

On appeal, Fuhr argued that she had presented both direct evidence of retaliation under Title VII and a prima facie (minimally sufficient) case of retaliation using circumstantial evidence.  Plaintiffs may show retaliation through either direct evidence, which requires a conclusion that unlawful retaliation was a motivating factor in the employer’s action and requires no inference to make such a conclusion, or through circumstantial evidence.  Fuhr argued that the principal’s statement to her saying “this is a good old boys network” and “[t]hey are doing this to get back at you for winning the lawsuit” was direct evidence of retaliation.  The Court disagreed, finding that the statement required inferences to know both who the “good old boys network" included and to which acts the principal was referring.  This left only Fuhr’s circumstantial case. 

To show retaliation using circumstantial evidence, a plaintiff must show that he/she took protected action under Title VII, that this action was known to his/her employer, that adverse employment action was subsequently taken, and that a causal connection between the protected activity and the adverse action existed.  The employer did not dispute that Fuhr took protected action about which it knew, but did argue that no causal connection was established.[1]

The Sixth Circuit affirmed the lower court’s decision that Fuhr failed to establish the necessary causal connection.  The Court acknowledged that the temporal proximity between the protected activity and the adverse action cannot establish causation alone, but noted that it “always plays a role in establishing a causal connection.”  Fuhr brought her case in 1999, and the decision was not affirmed on appeal until March 2004.  The first adverse action she alleged occurred on April 27, 2006, though, leaving at least a two year gap.  The Court held that this “multi-year gap prove[d] fatal” to Fuhr’s case, stating “while temporal proximity alone cannot establish a causal connection, a lack of temporal proximity alone can be fatal to an attempt to establish a causal connection.”  Fuhr v. Hazel Park School Dist., 710 F.3d 668 (6th Cir. 2013).

Bottom Line

While the Court tempered its statement by limiting it to “circumstances such as [Furh’s],” without specifically clarifying what those circumstances are, the case should comfort employers.  Employers are often hesitant to take necessary employment action when an employee previously made a complaint or filed a suit.  Of course, action should never be taken on the basis of the protected complaint or suit, and employers should always document their legitimate business reasons for taking such action.  But, while there is no guarantee an employee will not file suit, employees cannot simply rely on protected activity from years past without more to establish a retaliation case. 

[1] The employer also argued that Fuhr failed to prove that she experienced an adverse action; however, this was based on a procedural, rather than factual, basis, and therefore is not discussed in this article.

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