Is there temporal proximity between the protected activity and the retaliatory act when fifteen months separates the two? There can be where the evidence shows that the "employer had no opportunity to retaliate sooner" the Sixth Circuit explained in Sharp v Aker Plant Services, No 14-5415 (Jan. 13, 2015).
Tommy Sharp was let go during a force reduction in January 2009. Two months later in March, after recording some statements by his supervisor indicating that Sharp's release was age-motivated, Sharp sent the employer a demand letter protesting the age discrimination he claimed to underlay his termination. Sharp eventually filed an age discrimination suit, got a reversal of a summary judgment in the Sixth Circuit, Sharp v. Aker Plant Services, 726 F3d 789 (6th Cir 2013), before losing a jury trial. Meanwhile, in July 2010, a staffing agency attempted to place Sharp with Aker but Aker rejected Sharp by email the following day. So, some fifteen months separated Sharp's protected activity (the demand letter he sent in March 2009) and the retaliatory action, the rejection in July 2010. Following his rejection Sharp filed suit claiming that his rejection was retaliation for filing the age discrimination suit following his termination.
As with his first suit, the district court granted summary judgment against Sharp finding, among other things, that he had not established a causative link between his protected activity and the retaliation, since some fifteen months separated the two. Sharp appealed and, for the second time, the Sixth Circuit reversed in his favor.
The Sixth Circuit rejected the district court's causation analysis. First, although the district court had ruled that Sharp could not establish causation because of the fifteen month time span, the Sixth Circuit emphatically observed that "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." Second, Aker retaliated against Sharp at its first and earliest opportunity, a reality that supported a finding of temporal proximity:
Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity. See Fischer v. UPS, 390 Fed Appx 465, 469 (6th Cir 2010)(finding that the plaintiff could establish causation after two-and-a-half-year interval based on the "practical reality" that he took an extensive period of medical leave during that time); Dixon v Gonzales, 481 F3d 324, 335 (6th Cir 2007)
The Sixth Circuit's unanimous opinion was authored by Circuit Judge Deborah Cook and joined by Circuit Judge Julia Gibbons and visiting District Judge James S. Gwin of the Northern District of Ohio, a panel that would ordinarily be viewed as not favorable toward an employment discrimination plaintiff appealing a summary judgment.
An earlier post discussed this case: More Than Six Months Between Protected Activity and Retaliation Does Not Preclude Causative Link, Sixth Circuit Again Emphasizes.
