Temporal proximity between protected activity and an adverse employment action suggests or doesn't a causative link between the two. But how long is too long? An employer argued to the Seventh Circuit in Malin v Hospira, Inc, 762 F3d 552 (7th Cir 2014) that a "three-year time interval is a 'fatal time gap' that forecloses any inference of retaliation." The court rejected this idea and explained as follows:
"The mere passage of time is not legally conclusive proof against retaliation." Robinson v Southeastern Pennsylvania Transp Auth Red Arrow Div, 982 F2d 892, 894 (3d Cir 1993); see also Carlson v CSX Transp, Inc, 758 F3d 819, 828-30 (7th Cir 2014)(rejecting timing-based rule at the pleading stage and collecting cases); Paluck v Gooding Rubber Co, 221 F3d 1003, 1009010 (7th Cir 2000)("of course, the fact that a year passed between employee's protected expression and her termination does not mean that she cannot prove that retaliation caused her discharge"); Gee v Prinicpi, 289 F3d 342, 345-47 (5th Cir 2002)(reversing summary judgment for employer where employee's complaint and allegedly retaliatory failure to promote were separated by two years); Woodson v Scott Paper Co, 109 F3d 913, 916 (3d Cir 1997)(affirming verdict for plaintiff; reasonable jury could find retaliation where protected activity and plaintiff's termination were separated by two years).
This is really nothing more than a fair, common-sense review of the factual situation that this case presented. The plaintiff, Malin, presented evidence of numerous retaliatory acts occurring during the three-year period at issue that culminated in the ultimate and actionable adverse employment action: her demotion.
We recently discussed a Sixth Circuit case where that court properly reviewed the facts before it indicating that a 15-month period between the protected activity and the retaliation was not that significant. Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later.
The Malin case was brought to my attention by Rick Seymour on the NELA listserve, an invaluable resource enriched by truly gifted lawyers all over the country.
