Causation -- the link between protected activity and an adverse employment action -- is usually time-bound and temporally proximate, meaning the adverse action follows fairly soon on the heels of the protest or report. But what about when the lapse of time is greater?
The Sixth Circuit discussed recently in Kirilenko-Ison v. Bd. of Educ. of Danville "two situations in which even a long lapse of time is not fatal to a plaintiff's causation showing." One is where the employer "took advantage of its first meaningful opportunity to retaliate against the [employee], even if that opportunity did not arise until several months after the plaintiff's protected conduct." Second, even if more than enough time has passed to preclude a finding of causation based on close timing alone, "an employee can still prevail if she couples temporal proximity with other evidence of retaliatory conduct to establish causality."
The plaintiffs in this case were two nurses, who voiced strident concerns about the school system was looking after two students with difficult medical conditions. One of the nurses engaged in the protected activity in May - December 2016; she was working under a three-year contract funded by a grant that lapsed at the end of June 2017. She sought full-time employment in the Fall 2017 and was not hired, despite a very solid record. The failure to rehire her was an adverse employment action, and it was "the first meaningful opportunity the school board had to retaliate against her." Therefore, the Sixth Circuit reversed a summary judgment for the school board by the district court.
