Three-year time lapse alone not sufficient to bar Title VII retaliation claim

Summary judgment in favor of an employer on an employee’s Title VII and FMLA retaliation claims for her demotion in a restructuring that occurred three years after her sexual harassment complaint was reversed and remanded for trial. A reasonable jury could find from the employee’s evidence that the demotion was part of a manager’s long-term effort at retaliation for a sexual harassment complaint she made over his objections or in retaliation for her use of FMLA leave during the reorganization. In reversing the district court, the appeals court rejected the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law. Although three years is a significant period of time, in this instance the employee offered evidence of other retaliatory behavior between a 2003 sexual harassment complaint and a 2006 reorganization and demotion that bridged the gap between the two events, leaving the issue of causation for a jury trial (Malin v Hospira, Inc, August 7, 2014, Hamilton, D).

Sexual harassment complaint. In July 2003, the employee advised her supervisor that she was going to complain to Human Resources about sexual harassment by her indirect supervisor. When the direct supervisor notified a divisional manager about the employee’s complaint, he was told to do everything in his power to stop her from going to HR. Nevertheless, the employee made a formal sexual harassment complaint, and from that point on, the divisional manager evidenced hostility towards the employee. HR investigated the employee’s allegations and issued a counseling memorandum to the harasser.

Failure to promote. In May 2004, the employer spun off the employee’s division from the main company. The divisional manager became chief information officer of the new company and had final decisionmaking authority on all promotions. Between the 2003 complaint and the 2006 reorganization, the employee applied for several promotions but received none. By January 2006, the employee told her supervisor she believed she was experiencing ongoing retaliation from the IT head because she had reported an incident to HR. The supervisor reported her retaliation comment to HR but no further action was taken.

Reorganization. In 2006, the department went through an extensive reorganization, overseen by the IT chief. At the same time, the employee notified the employer that she needed to take FMLA leave effective immediately. As a result of the reorganization, the employee was again denied a promotion; instead, a new position was created to which she was to report. While the new position remained vacant, the employee was effectively demoted as her position was downgraded. In the meantime, the employee successfully performed the duties of the vacant position. She repeatedly asked why she had not been officially promoted even though she was performing the duties of the position and it remained vacant. In response, her supervisor referred her to the IT chief, who had final authority on promotions. Ultimately, the IT chief recommended that the employee’s supervisor interview an external candidate for the vacant position.

Title VII retaliation claim. The employee asserted that the employer engaged in retaliation prohibited by Title VII and the FMLA when it failed to promote her and effectively demoted her as part of the 2006 reorganization, all because she had made the sexual harassment complaint in 2003. Specifically, she alleged that the IT chief effectively froze her career by blocking her attempts to rise any further in the company and by effectively demoting her as part of the 2006 reorganization.

The employee proceeded under the direct method of proof, which required her to provide evidence that (1) she engaged in a statutorily protected activity, (2) her employer took a materially adverse action against her, and (3) there was a causal connection between the two. Finding the first two elements satisfied, the Seventh Circuit focused on element (3) — whether the employee presented evidence that would allow a reasonable jury to find a causal connection between her 2003 complaint to HR and the adverse actions taken against her during and after the 2006 reorganization.

Causation. Here, the appeals court found ample evidence to support the inference that the employer retaliated against the employee for her 2003 sexual harassment complaint when it carried out the 2006 reorganization. In the reorganization itself, the employee was not promoted despite being singled out as a model “relationship manager” by the outside consulting company involved in the reorganization. For the year following the reorganization, she performed the duties of the position she had been denied without any increase in salary, manager level, or benefits. Additionally, she received positive performance evaluations for performing the empty position’s duties. When the empty position was eventually posted, her application was not even considered.

Three-year gap not fatal. Although the employer pointed out that three years had passed between the employee’s complaint and the reorganization, the appeals court rejected its contention that the three-year time interval was a “fatal time gap” that foreclosed any inference of retaliation. “The mere passage of time is not legally conclusive proof against retaliation.” In fact, it a prior ruling, the Seventh Circuit expressly declined to adopt a rule that a long enough interval between protected activity and adverse employment action will bar any inference of retaliation. Rather, the evidence in this case permitted an inference that the IT chief had a long memory and repeatedly retaliated against the employee between 2003 and 2006. Thus, the court held that the employee offered sufficient evidence to survive summary judgment on her Title VII retaliation claim.

FMLA retaliation. Similarly, the appeals court determined that the employee offered sufficient evidence to survive summary judgment on her FMLA retaliation claim. The district court had found that by the time the employee’s sister notified the employer of her need for FMLA leave, the employer had already decided not to promote her as part of the reorganization. If that were correct, there could not have been a causal connection between the employee’s FMLA leave and an earlier decision not to promote her. Contrary to the district court, however, the Seventh Circuit found that there was a genuine issue of material fact regarding when the employer made the decision not to promote the employee as part of the reorganization. The employee asked for FMLA leave on June 19, well before the reorganization was announced on July 12. The employer pointed to no evidence to support its assertion that the promotion decision pre-dated the employee’s FMLA request. Thus, a reasonable jury could find that the employer retaliated against the employee for requesting FMLA leave when it did not promote and effectively demoted her as part of the 2006 reorganization.
By Ronald Miller, J.D.