Thursday, April 3, 2014

3d Cir. Provides "Temporal Proximity" Retaliation Analysis

The Third Circuit recently released a non-precedential Title VII (and PHRA and 1981) retaliation opinion in Blakney v. City of Philadelphia. The Court provided a succinct rundown of temporal proximity precedent involving two major issues.

First, how close in time is "close enough" to suggest retaliation:
We have found that a temporal proximity of two days is unusually suggestive of causation, see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989) (reversing summary judgment for the defendant when plaintiff was fired two days after his employer received notice of his EEOC complaint), but have held that a temporal proximity greater than ten days requires supplementary evidence of retaliatory motive, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000) (finding that “where the temporal proximity is not so close as to be unduly suggestive,” the appropriate test is “timing plus other evidence”); see also Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir.2004) (two months is not unusually suggestive); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir.2007) (three months is not unusually suggestive).
Second, how should the Court calculate the timing:
We measure temporal proximity from the date on which the litigant first files a complaint. See Jalil, 873 F.2d at 703. Here, Blakney filed an EEOC complaint in 2008 and sued in federal court in 2010. He voluntarily resigned in January 2011 and first sought reinstatement in September 2011—four days after summary judgment was entered against him in the Prior Action. He sought reinstatement a second time in December 2011. Thus, the period between the filing of the EEOC complaint and the City's failure to reinstate Blakney spans three years, which falls well short of the “unduly suggestive” mark. See Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir.2001) (finding that protected activity that extended “over a substantial period of time” is “insufficient to establish causation”).
Frankly, I find the latter issue a little problematic. Let's say a guy files a lawsuit on Monday and gets fired on Tuesday - there's nothing "unduly suggestive" about that timing if he has had an EEOC/PHRC charge pending for a couple of years? That's tough to swallow.

In any event, Blakney is nothing new, but it does include a nice short summary of where we are with temporal proximity analysis in the Third Circuit.