Title VII Employer Retaliation Claims are Harder to Prove Than You Might Think!
December 8, 2011
Let’s say your boss is a real, well, you know . . . You decide to go and complain to your HR representative about his (or her) behavior, and the next thing you know, your request for vacation time is denied, or you receive a negative employee evaluation. It sounds like a good case of employer retaliation, right? Maybe. But then again, maybe not. As many South Florida employment attorneys know, Title VII employer retaliation claims are harder to prove than you might think.
First, keep in mind that Title VII is generally designed to prohibit discrimination in the workplace on the basis of race, sex (and pregnancy), color, religion, or national origin. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-62 (2006) (citing 42 U.S.C. sec. 2000e-2(a)). That means that as a plaintiff in an employment discrimination action, you’ll generally have the burden of showing that you were discriminated against because you belong to one of the protected classes. Title VII does not create “a general civility code for the American workplace.” Burlington Northern, 548 U.S. at 68 (citations omitted). Generally speaking, Title VII does not afford a cause of action for “petty slights,” “personality conflicts,” “snubbing,” or other actions which might fall into the category of “ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Burlington Northern, 548 U.S. at 68 (citations omitted).
Title VII’s anti-retaliation provision provides,
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Burlington Northern, 548 U.S. at 62 (citing 42 U.S.C. sec. 2000e-3(a)). This section is to be construed broadly. See Thompson v. North American Stainless, LP, 131 S.Ct. 863, 868 (noting that in Burlington Northern, “we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.”) (citing Burlington Northern, 548 U.S. at 62).
Notwithstanding the broad construction to be afforded the anti-retaliation section, the Eleventh Circuit still requires a plaintiff in an anti-retaliation action to show that (1) he or she was engaged in statutorily protected expression; (2) he or she suffered an adverse employment action; and (3) there was some causal relationship between the two events. See Burgos v. Napolitano, 330 Fed. App’x. 187, 189 (11th Cir. 2009) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). Filing an EEOC claim, opposing a discriminatory practice, or participating in Title VII enforcement proceedings have been held to constitute expressions protected by Title VII. See Burgos, 330 Fed. App’x at 189; Valentine v. Legendary Marine FWB, Inc., No. 3:09cv334/MCR/EMT, 2010 WL 1687738, *4 (N.D. Fla. April 26, 2010). As illogical as it may sound, merely enjoying a benefit conferred by Title VII, or making a general complaint of discrimination is not legally sufficient for claims of employer retaliation. See Valentine, 2010 WL 1687738 at *3-*4 (holding that plaintiff’s generalized claim that she was discriminated against by being terminated while on FMLA maternity leave was legally insufficient for claim of retaliation because exercise of right to FMLA maternity leave “is simply not the same as opposing a discriminatory practice or participating in an enforcement proceeding under Title VII.”) (citing Marshall v. Mayor and Alderman of City of Savannah, Ga., No. 09-13444, 2010 WL 537852, at *8-9 (11th Cir. Feb.17, 2010) (unpub.); Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1568-69 (11th Cir. 1987)).
The Eleventh Circuit construes “the causal-relationship prong” broadly, meaning that “a plaintiff simply has to demonstrate that the protected activity and the adverse action are not completely unrelated.” Burgos, 330 Fed. App’x at 190 (citing Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)). “A plaintiff satisfies this element if she provides sufficient evidence that her employer had knowledge of the protected expression and “that there was a close temporal proximity between this awareness and the adverse action.” Burgos, 330 Fed. App’x at 190 (quoting Higdon, 393 F.3d at 1220).
Perhaps the biggest hurdle a plaintiff may face in a retaliation case is showing a close temporal proximity between the Title VII protected activity and the retaliation. Although a time difference of one month has been accepted, time spans of three, four, and six months have been found to be insufficient as a matter of law to establish a temporal nexus. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period insufficient); Burgos, 330 Fed. App’x at 190-191 (holding that six month delay between filing of EEOC claim and the adverse employment action constituted “a substantial delay” and “without more, is insufficient to support an inference of causation.”); Higdon, 393 F.3d at 1220 (holding that, by itself, three months was insufficient to prove causation, but noting that the Court previously held that one month is “not too protracted.”) (citing Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986)).
What does all of this mean for you, the employee who complained about your boss, and then found yourself on the receiving end of some adverse employment action? Basically, you’ll have to think about three important questions: (1) At the time the adverse employment action occurred, were you participating in some form of expression that is protected by Title VII, such as making and EEOC claim or participating in EEOC enforcement proceedings? (2) Is there a close enough temporal proximity between your Title VII protected activity, and the adverse employment action? (3) Were you truly discriminated against because you are a member of a protected class, or were you perhaps singled out because of an unfortunate personality conflict with your boss?