Anti-retaliation statutes abound in both federal and state laws to protect employees who report or oppose certain prohibited activities.[i] It follows that employers must be vigilant in taking steps to ensure that they are protecting themselves from the ever increasing number of retaliation claims. Retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) have increased by almost 40 percent since 2006, and in 2010 they accounted for 36.3 percent of all individual charges filed with the EEOC.[ii]
The Framework of a Retaliation Claim
To succeed on a cause of action based on an anti-retaliation provision, each of the retaliation laws generally requires plaintiffs to establish the same three elements: (1) the employee engaged in protected activity; (2) the employer subjected him/her to an adverse action; and (3) there was a causal connection between the protected activity and the adverse action. The causal connection element of a successful retaliation claim often requires an analysis of temporal proximity, i.e., the timing between the protected activity and the adverse action. The employee must also demonstrate that the employer had knowledge of the protected activity prior to the adverse action.
This article provides an overview of the elements of a retaliation case but focuses on the use of temporal proximity to establish the requisite causal connection. Temporal proximity is the crucial element in many retaliation claims because an employee rarely is able to produce direct evidence of the retaliatory motive behind an employer's adverse actions. In other words, the period of time between the protected activity and the adverse employment action may be used as circumstantial evidence of an employer's retaliatory conduct—the inference of retaliation is much stronger if the period of time is short. It is not surprising then that temporal proximity is one of the most common forms of circumstantial evidence used to establish causal connection.
This article will use Title VII as the legal backdrop to discuss the elements of a successful retaliation claim. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin.[iii] It also protects employees against retaliation from their employers when employees oppose illegal discrimination in the workplace or participate in an investigation or other process to challenge alleged discrimination.[iv] If a plaintiff presents credible direct evidence of discrimination, an employer may still prevail if it proves that it would have subjected the employee to the same employment decision regardless of the employee's protected activities.[v] Direct evidence is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption."[vi] An example of direct evidence of retaliation would be an email from a supervisor stating that the employer fired an employee because the employee filed a complaint against the employer for racial discrimination. Rarely does this direct evidence exist. Therefore, a plaintiff may also rely on circumstantial evidence of retaliation to establish his/her Title VII claim.
In McDonnell Douglas Corp. v. Green, the Supreme Court set forth a burden shifting approach for Title VII discrimination cases which was subsequently adopted for Title VII retaliation claims as well.[vii] Under this approach, a plaintiff's retaliation claim may succeed without direct evidence. To do so, the plaintiff must establish a prima facie case of retaliation by producing enough circumstantial evidence regarding protected activity, adverse action, and causal connection to create an inference of retaliation.[viii] If the plaintiff succeeds in establishing a prima facie case of retaliation, the burden shifts to the defendant to produce evidence of a legitimate, non-retaliatory reason for the adverse action taken against the plaintiff.[ix]
If the defendant satisfies its burden, the presumption of retaliation established by the plaintiff in his/her prima facie case disappears and the burden shifts back to the plaintiff to prove each element of retaliation outright; some courts refer to this final step as requiring the plaintiff to prove that the employer's stated reason was actually pretext for retaliation.[x] If the plaintiff proves pretext, the plaintiff has satisfied the ultimate burden of proof and will be entitled to various remedies against the employer.[xi]
Under Title VII, an employee engages in a protected activity when s/he opposes an unlawful employment practice, makes a charge, or participates in an investigation, proceeding, or hearing related to Title VII.[xii] The courts generally recognize two forms of protected activities: (1) conduct under the participation clause of Title VII, and (2) conduct under the opposition clause of Title VII.[xiii]
The participation clause protects the employee who files a charge of discrimination against an employer with an administrative agency or testifies before or participates in a state or federal administrative agency investigation of another employee's discrimination charge. Threatening to file a charge of discrimination against an employer with an administrative agency is also considered participation conduct.[xiv]
On the other hand, the opposition clause prohibits employers from discriminating against employees for opposing employment practices rendered unlawful by Title VII. Examples of opposition conduct include employee complaints to management, a union, or other employees, or filing internal grievances regarding their employer's unlawful employment practices. The opposition clause extends beyond employees who instigate formal complaints; it also protects employees who speak out about discrimination, not on their own initiative, but in response to questions asked in an employer's internal investigation.[xv]
However, Title VII only protects employees who oppose actions taken by the employer; it does not protect an employee's opposition to the independent behavior of a coworker unless the employer condones the discriminatory behavior.[xvi] And, although the Supreme Court has not definitively addressed this issue, it cited without disapproval a Ninth Circuit decision which held that Title VII protects not only those employees who oppose practices that are actually found to be unlawful under Title VII but also employees who oppose employer conduct based on a reasonable belief that there was a Title VII violation.[xvii]
In Yanowitz v. L'Oreal USA, Inc., the California Supreme Court held that an employee's stated objections and refusal to obey her supervisor's order that she terminate an employee and replace her with a more attractive employee was protected activity under FEHA's opposition clause.[xviii] The court concluded that where an employee articulates a reasonable belief that certain employer conduct is discriminatory, the employer is prohibited from retaliating against the employee for that conduct.[xix] However, if the employee does not voice his/her belief that the employer is engaging in discriminatory behavior, the employee generally will be unable to establish the protected activity element of the prima facie claim.[xx]
The term "adverse action" does not appear in Title VII; however, the term has been adopted by the courts to refer to the sufficiency of an action taken that will support a cause of action for retaliation. In Burlington Northern v. White, the United States Supreme Court held that an adverse employment action is any materially adverse action which "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."[xxi] Thus, an adverse action may extend beyond workplace-related or employment-related acts to cover any action that a reasonable employee would view as materially adverse.[xxii]
The California Supreme Court held that the standard for determining whether there was an adverse action under the FEHA was the "materiality" test, which requires "an employer's adverse action to materially affect the terms and conditions of employment."[xxiii] Accordingly, the scope of adverse action under the FEHA is arguably narrower than that of Title VII because it is limited to actions that affect employment.
Title VII only prohibits adverse action taken because of an employee's protected activity. The causal link may be established with direct evidence or with inferences derived from circumstantial evidence.[xxiv] Thus, the issue becomes what level of proof is required to demonstrate a causal connection in the prima facie case. The proximity between the protected activity and the adverse action may be used to establish a prima facie showing of causation. As discussed below, some courts have even held that temporal proximity may be used to prove pretext.
In Chen v. County of Orange, a state court FEHA case, the court highlighted the importance of the causation requirement in retaliation claims and explained that "the possibility of a retaliation claim creates the problem of conferring a de facto immunity on the complainant despite poor job performance or the [fact that the complaint has no merit]. Consider a hypothetical of a ne'er-do-well employee who wants to manipulate the system to his/her advantage: ‘Not doing your job well? Ax about to fall? Never fear: file a discrimination claim, no matter how meritless. Your employer will be afraid to take any action because now you can sue for retaliation.'"[xxv] To circumvent this abuse of anti-retaliation statutes, the courts require a causal connection between the protected activity and the adverse action. Thus, the causal link requirement prevents employees from asserting baseless discrimination claims in an attempt to scare their employer from taking an adverse action against them out of fear of liability under an anti-retaliation statute.
In Clark County School Dist. v. Breeden, the United States Supreme Court indicated that close temporal proximity alone may be sufficient to establish a prima facie causal connection.[xxvi] Although demonstrating causality is not always dependent on temporal proximity, employers may raise the lack of temporal proximity to argue that the plaintiff failed to establish the causality element of his/her prima facie retaliation claim.[xxvii]
The court in Breeden also added another requirement for a plaintiff to establish a prima facie showing of causal connection: the employer's knowledge of the protected activity.[xxviii] Both the temporal proximity requirement and the knowledge requirement are discussed more thoroughly below.
Temporal proximity. In California and the Ninth Circuit, the courts recognize temporal proximity as being highly probative of a causal connection and give substantial weight to evidence of temporal proximity. These courts also recognize that the prima facie burden of production is less onerous than the plaintiff's ultimate burden of proof. This view leads to more successful plaintiffs than in jurisdictions that give little weight to temporal proximity because it eases the plaintiff's burden in establishing the causality requirement of the prima facie retaliation case. This is particularly true because temporal proximity is often the only evidence of causal connection that a plaintiff has. In jurisdictions that give little weight to temporal proximity, these claims will fail.
Temporal proximity may be crucial for a successful retaliation claim. If the plaintiff cannot establish a prima facie causal connection, the burden will not shift to the employer and the plaintiff's claim will fail. For those plaintiffs whose only evidence of a causal connection is the period of time between the protected activity and the adverse action, the sufficiency of temporal proximity will be determinative of whether they can establish a prima facie showing of retaliation. Unfortunately, there is no period of time that has been definitively held to automatically satisfy the plaintiff's prima facie burden to demonstrate causation. As such, the sufficiency of the amount of time between the protected activity and the adverse action for establishing causation by way of temporal proximity will vary from case to case.
In Breeden, the Supreme Court appeared to accept the lower court's definition of temporal proximity as "very close" timing between protected activity and adverse action.[xxix] However, the court did not expressly adopt that definition, nor did it provide its own definition of temporal proximity.[xxx] In that case, the court concluded that the plaintiff failed to establish causality based on temporal proximity because the adverse action was taken 20 months after the protected activity.[xxxi]
In a Ninth Circuit Court of Appeals Title VII retaliation case, the court held that the plaintiff established her prima facie showing of causation based solely on the fact that the employee was subjected to an adverse action seven weeks after she in engaged in protected activity.[xxxii] But another court held that four months between the protected activity and the adverse action was insufficient for this purpose.[xxxiii] Another court quickly determined that, where there was only one day between the protected activity and the adverse action, the plaintiff had demonstrated causation based on temporal proximity alone.[xxxiv]
Where a court finds that the timing between the protected activity and the adverse action is too remote to establish a prima facie showing of causation based on temporal proximity alone, the plaintiff must then offer additional evidence of causation to satisfy his/her burden.[xxxv] The plaintiff may establish the causal connection requirement with evidence that the employer made statements about how much it dislikes the employee, the employer's failure to follow its own policies when dealing with the affected employee, or the employer's disparate treatment of employees. Therefore, employers should adopt written policies that require supervisors and management to document legitimate business reasons for making employment decisions. In addition, where a plan of action already has been contemplated—even if not yet definitively determined—before the employee engages in some form of protected activity, the employer does not need to suspend the previously planned action once it discovers that the employee who will be affected has filed a retaliation claim.[xxxvi] Finally, where discipline is warranted, employers should apply it consistently for similar infractions.
Knowledge. The knowledge requirement is based on the realization that an employer cannot take adverse action against an employee because of the employee's protected activity if the employer had no knowledge of the protected activity.[xxxvii] An employer does not need actual knowledge of the protected activity if there is circumstantial evidence that indicates the employer should have known that the employee engaged in such activity.[xxxviii] In addition, under the "cat's paw" theory of liability, an employer may be liable under Title VII based on the discriminatory animus of a supervisor, who influences, but does not make, the ultimate employment action.[xxxix]
Generally, employers may defeat a retaliation claim by demonstrating that all of the decision makers behind the alleged retaliatory act were not aware of the protected activity at the time of the adverse act.[xl] Employers may be able to prevent the plaintiff from establishing causation by having the actual decision makers declare under penalty of perjury that they were unaware of the protected activity and set forth specific legitimate reasons for the challenged action.[xli]
One state court decision emphasized that lack of knowledge of the employee's protected activity will not provide a defense "unless it extends to all corporate actors who contributed materially to an adverse employment decision."[xlii] In other words, knowledge may be imputed to the ultimate decision maker. For example, if a supervisor initiates an investigation into an employee's conduct purely for retaliatory reasons and the investigation leads to the employer taking an adverse action against the employee, the supervisor's retaliatory purpose may be imputed to the employer even if the investigation was conducted independently from the supervisor and the employer did not know of the supervisor's retaliatory motive.[xliii] Accordingly, employers must take a proactive and preventative approach. An employer must inform employees and supervisors that it will not tolerate retaliation in any form and that it encourages employees to report unlawful activity.
Legitimate, Non-Retaliatory Business Reason
Once the plaintiff establishes the prima facie retaliation case, the burden of production then shifts to the defendant to offer evidence that the action taken was for a legitimate, nondiscriminatory reason.[xliv] The burden of production is different from the plaintiff's ultimate burden of proof and simply requires the defendant to produce substantial evidence which demonstrates why the adverse action was legitimate and nondiscriminatory.[xlv] For example, an employer may satisfy its burden by offering evidence that a downturn in business required the employer to conduct layoffs and that, in determining which employees to layoff, it used a variety of factors including, seniority, performance, and qualifications.[xlvi] Evidence of a legitimate, non-retaliatory business reason for the challenged action therefore often provides employers with a defense to retaliation claims.
If the jury rejects the employer's proffered explanation, it may infer retaliation without any additional proof from the plaintiff.[xlvii] However, if the defendant satisfies its burden, the presumption of retaliation that arose when the plaintiff established his/her prima facie case "simply drops out of the picture" and the burden shifts back to the plaintiff to prove that the defendant's alleged legitimate reason is really pretext for retaliatory animus.[xlviii] With thorough documentation of employer actions, and policies, procedures, and training that encourage equitable treatment of employees, employers should feel confident in their ability to defend their employment decisions if subsequently challenged.
Ultimate Burden of Proof and Pretext
Once the employer satisfies its burden of producing evidence of a legitimate, non-retaliatory reason for taking the challenged action against the employee, the burden shifts back to the employee to establish that the explanation is merely pretext for the employer's true retaliatory motive. The plaintiff needs to produce "very little" direct evidence of pretext to survive a motion for summary judgment.[xlix] One California court recently clarified that although pretext is relevant, the central inquiry must be "whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus."[l]
However, the plaintiff may create such a strong inference of retaliation in the prima facie case that he or she may not have to produce any direct evidence of pretext to survive the defendant's motion for summary judgment and take the case to the jury.[li] As a result, the jury may take into account the weaknesses in the employer's evidence of legitimacy "in considering whether those reasons constituted the real motive for the employer's actions, or have instead been asserted to mask a more sinister reality."[lii] Therefore, an employer's legitimate reason for the challenged action will only provide a complete defense where the plaintiff's showing is too weak to sustain its ultimate burden of proof.[liii]
Temporal proximity to prove pretext. Currently there is conflicting authority regarding whether an employee may rely on temporal proximity to establish that the employer's proffered explanation for the challenged action is pretext for retaliatory motive. In courts that allow the use of temporal proximity to establish pretext, temporal proximity may prevent the defendant from succeeding on a motion for summary judgment because these courts view temporal proximity as creating a genuine issue of material fact for the jury by raising an inference of pretext.
In Arteaga v. Brinks, Inc., the plaintiff was the subject of an internal investigation. During the investigation, the plaintiff informed his employer that he was suffering from injuries which he believed were work related.[liv] The employer fired the plaintiff days after he reported his injury based on the results of the employer's internal investigation.[lv] In plaintiff's lawsuit alleging retaliation under the FEHA, the employer satisfied its burden of producing a legitimate, non-discriminatory explanation for the termination—the employee had stolen $7,688.00 from the employer.[lvi]
The plaintiff then argued that defendant's proffered explanation was pretextual because he was terminated less than a week after he disclosed his physical disability.[lvii] The court held that "the temporal proximity between an employee's disclosure of his symptoms and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process…[b]ut temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination."[lviii] The court bolstered its conclusion by emphasizing that the employer began the internal investigation which led to the plaintiff's termination before the employee notified the employer about his injuries.[lix] The court clarified that plaintiffs may use temporal proximity as one factor to establish pretext.[lx]
However, in Dawson v. Entek International, the plaintiff filed a retaliation claim against his employer under Title VII.[lxi] The plaintiff went to human resources to lodge a complaint regarding repeated and extreme sexual orientation discrimination. Within two days, plaintiff was terminated.[lxii] In that case, the court held that "in some cases, temporal proximity can by itself constitute sufficient circumstantial evidence of retaliation for purposes of both the prima facie case and the showing of pretext."[lxiii] The court indicated that the gravity of the plaintiff's complaints in that case may have contributed to its conclusion that temporal proximity was sufficient to establish pretext.[lxiv]
Because Dawson is such a recent case, there is little authority interpreting its holding. However, if more courts follow its holding that temporal proximity may be used to establish causation and pretext, employers may have a more difficult time winning retaliation cases on summary judgment after presenting a legitimate, non-retaliatory reason for the adverse action. Regardless, until the case law regarding this issue is developed more thoroughly, an employer still has a good chance of prevailing on a motion for summary judgment if plaintiff's only evidence of pretext is temporal proximity.
The increase in retaliation claims should not make employers feel as though they cannot discipline an employee when warranted. Remember that, even after an employee engages in some form of protected activity, an employer may still proceed with previously contemplated action against the employee if there was a legitimate basis for doing so prior to the protected activity.[lxv] Accordingly, proper documentation and legitimate reasons for the action should provide a solid defense to any action taken against an employee regardless of the proximity between the activity that is allegedly protected and the adverse action.
Melanie M. Poturica (firstname.lastname@example.org) is a partner, and Ian A. Wright (email@example.com), an associate, of Liebert Cassidy Whitmore's Los Angeles office. The firm, which maintains offices in Los Angeles, San Francisco, and San Diego, represents public sector management in all aspects of labor and employment law, including labor relations, civil litigation, and education law.
[i] For example, Title VII of the Civil Rights Act of 1964, the Fair Employment and Housing Act, the California False Claims Act, the Myers-Milias-Brown Act, the Americans with Disabilities Act, the Family and Medical Care Leave Act, the California Family Rights Act, and the Age Discrimination in Employment Act all contain provisions that protect employees from retaliation.
[ii] See http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
[iii] Title VII of the Civil Rights Act of 1964, 42 USC § 2003 et seq.
[v] Clark County School Dist. v. Breeden (Breeden) (2001) 532 U.S. 268, 272.
[vi] Davis v. Chevron, USA, Inc. (5th Cir. 1994) 14 F.3d 1082, 1085 (alterations in original, quotations and citations omitted).
[vii] McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802; see also Miller v. Fairchild Industries, Inc. (9th Cir. 1986) 797 F.2d 727, 731-32 (Stating "[t]he order and allocation of proof for Title VII suits outlined in [McDonnell], also covers actions for [retaliation].").
[viii] McDonnel Douglas Corp., supra, 411 U.S. at 802.
[xi] Id. at 804.
[xii] See 42 USC § 2000e-3(a).
[xiii] EEOC v. Nalbandian Sales, Inc. (E.D. Cal. 1998) 36 F.Supp.2d 1206, 1209.
[xiv] Gifford v. Atchison, Topeka & Santa Fe Railway Co. (9th Cir. 1982) 685 F.2d 1149, 1156, fn. 3.
[xv] Crawford v. Metro. Government of Nashville and Davidson City, Tenn. (2009) 129 S.Ct. 846, 851-53.
[xvi] Silver v. KCA, Inc. (9th Cir. 1978) 586 F.2d 138, 141.
[xvii] Breeden, supra, 532 U.S. at 270; see also Rucker v. Higher Educational Aids Bd. (7th Cir. 1982) 669 F.2d 1179, 1182 (Interpreting Title VII, the court stated, "it is the good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case.").
[xviii] Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036.
[xix] Yanowitz, supra, 36 Cal.4th at 1036.
[xx] Id. at 1046.
[xxi] Burlington Northern & Santa Fe Railway v. White (2006) 548 U.S. 53, 68.
[xxii] Id. at 69; see also Thompson v. North American Stainless, LP (2011) 131 S.Ct. 863, 868 (confirming cause of action for third-party retaliation for persons who did not themselves engage in protect activity).
[xxiii] Yanowitz, supra, 36 Cal.4th at 1036.
[xxiv] Jordan v. Clark (9th Cir. 1998) 847 F.2d 1368, 1376.
[xxv] Chen v. County of Orange (2002) 96 Cal.App.4th 926, 948-49.
[xxvi] Breeden, supra, 532 U.S. at 237-74.
[xxvii] Porter v. California Dept. of Corrections (9th Cir. 2005) 419 F.3d 885, 896, fn. 6.
[xxviii] Breeden, supra, 532 U.S. at 273.
[xxxi] Id. at 272.
[xxxii] Thomas v. City of Beaverton (9th Cir. 2004) 379 F.3d 802, 812.
[xxxiii] Hughes v. Derwinski (7th Cir. 1992) 967 F.2d 1168, 1174-75.
[xxxiv] O'Neal v. Ferguson Construction Co. (10th Cir. 2001) 237 F.3d 1248, 1255.
[xxxv] Id. at 1253.
[xxxvi] Breeden, supra, 532 U.S. at 272.
[xxxvii] Breeden, supra, 532 U.S. at 273.
[xxxviii] Hernandez v. Spacelabs Medical, Inc. (9th Cir. 2003) 343 F.3d 1107, 1116.
[xxxix] Staub v. Proctor Hospital (2011) 131 S.Ct. 1186, 1193-94.
[xl] Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 73.
[xli] Id. at 574-75.
[xlii] Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 109.
[xliii] Id. at 113.
[xliv] Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806.
[xlv] Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142.
[xlvi] Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918.
[xlvii] Reeves, supra, 530 U.S. at 151-53.
[xlviii] St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 511.
[xlix] Chuang v. University of California Davis (9th Cir. 2000) 225 F.3d 115, 1127-28.
[l] Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.
[li] Chuang, supra, 225 F.3d at 1128.
[lii] Mamou, supra, 165 Cal.App.4th at 715.
[liv] Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 334.
[lvi] Id. at 352.
[lvii] Id. at 353.
[lx] Id. at 354.
[lxi] Dawson v. Entek International (9th Cir. 2011) 630 F.3d 928, 932-33.
[lxii] Id. at 936.
[lxiii] Id. at 937.
[lxv] Breeden, supra, 532 U.S. at 272.
Reprinted with permission from CPER No. 202 (June 2011). Copyright by the Regents, University of California. The California Public Employee Relations Program (CPER) provides nonpartisan information to those involved in employer-employee relations in the public sector. For more information, visit http://cper.berkeley.edu