Long Gap Not Fatal To Retaliation Claim

A retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII) requires that there be protected activity, a materially adverse employment action, and a causal connection between the protected activity and the adverse action. 

An employee engages in protected activity when, for example, he opposes an unlawful employment practice or participates in an investigation, proceeding, or hearing regarding conduct that is proscribed by Title VII.  A materially adverse action includes employment decisions such as denial of promotion, refusal to hire, denial of employment benefits, discipline, termination, and other actions that may dissuade a reasonable person from engaging in protected activity.  The causation element requires that the protected activity be the “but for” cause of the adverse action.  Causation can be shown by direct or circumstantial evidence.  One form of circumstantial evidence is temporal proximity.  If an adverse employment action occurs soon after an employer learned of protected activity, the short period of time between the two events can be evidence of a causal connection.

In a recent decision, Tutt v. Wormuth, No. 19-2480 (4th Cr. Sept. 8, 2021) (unpublished), the Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina), found that an employee adequately alleged in his complaint that he was permanently reassigned because of protected activity even though the reassignment occurred 15-16 months after the protected activity.   The plaintiff properly alleged that his supervisor made numerous comments regarding the plaintiff’s protected activity sufficient to make his retaliation claim plausible.

After the district court dismissed the Tutt’s claims, he appealed, and argued that he had included sufficient factual allegations in his complaint to show causation and that the trial court erred by focusing “solely on the gap between his protected activity and the adverse action while ignoring evidence of retaliatory animus that occurred during that period.”  The appellate court agreed. 

While recognizing that, “[m]ost commonly, a plaintiff may establish that the adverse action bears sufficient temporal proximity to the protected activity to establish an inference of causation,” the court acknowledged that “[i]n cases where temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus.”  While the 15- or 16-month gap between Tutt’s protected activity and his permanent reassignment weakened an inference of causation — and was not sufficient to establish causation — the additional factual allegations filled the gap.

The case provides a useful reminder that a long gap between protected activity and adverse action does not necessarily render a retaliation claim not viable, particularly where “evidence of recurring retaliatory animus during the intervening period can be sufficient to satisfy the element of causation.”  The court vacated the dismissal of the retaliation claim and remanded to the trial court for further proceedings.

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