Thursday, July 7, 2011

Retaliation Timing - How Soon is too Soon?

I had an interesting little Twitter conversation the other day (with @JonHyman and @KenBrennan) about when courts will infer that unlawful retaliation occurred simply based on the timing. Jon had a blog entry, Time after time, time alone is not enough to prove retaliation, about a case in which an Ohio appellate court held that the "temporal proximity" of one year between the protected activity and the adverse employment action was insufficient. In response, Ken asked:

@PhilipMiles @jonhyman One year is a long time. What about just a few hours? How soon is soon enough to permit the inference of retaliation?less than a minute ago via Twitter for iPhone Favorite Retweet Reply
I don't believe there is a bright-line rule. I would certainly think a few hours would present a serious problem for the employer. Courts are rightfully hesitant to state an exact time. Let's say they make it one week. If an employer waits eight days, can't the employee come back and say "ah-ha! They waited until the first possible day under the law to retaliate... isn't that indicative of their intent!?" And then you can imagine this game playing out for one more day and then one more.

Here in the Third Circuit, including Pennsylvania, we do have some time frame with which to work. But, it's kept a little gray. As recognized by the Middle District of Pennsylvania earlier this year, a plaintiff can establish a causal connection by proving:
[A]n usually suggestive temporal proximity between the protected activity and the allegedly retaliatory action . . . . The Third Circuit has held that two days between a protected activity and an adverse action is "unusually suggestive" of retaliatory motive, but that three months is not. See Krouse v. Am. Sterlizer Co., 126 F.3d 494, 503 (3d Cir.1997); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir.2007).
Lease v. Fishel, 1:07-CV-0003, 2011 WL 381656 (M.D. Pa. Jan. 28, 2011). It's not hard science, but it does provide some guidance.

Note: I used Twitter Blackbird Pie to embed the tweet. I'd be interested to hear your feedback. I like that it's interactive (you can click Reply, Retweet, the usernames and it behaves as though you were in Twitter). It looks a little rough to me though (particularly the white boxes).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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