When facing claims of retaliation for reports on objections about discrimination under the New Jersey Law Against Discrimination or Title VII of the Federal Civil Rights Act of 1964 (or for whistleblowing under New Jersey Conscientious Employee Protection Act), courts are often faced with the situation where there is no direct evidence in the form of an admission, document, email or tape recording. Therefore, when examining whether an employer took an action because of retaliation, employees are often forced to rely upon circumstantial evidence. One of the strongest types of circumstantial evidence in cases where the employee alleges she was retaliated against because of her objections about discrimination is the amount of time which elapsed between the objection and the employer’s adverse action. However, this is not the sole element which courts will consider – nothing happens in a vacuum.
The United States Court of Appeals for the Third Circuit recently examined just such a situation in a case about Title VII retaliation allegation in the case of Jessica Harrison-Harper v. Nike, Inc., d/b/a/ Converse, Inc. (The Third Circuit hears Federal appeals from the courts of New Jersey, Pennsylvania, Delaware and the United States Virgin Islands).
In that case, Jessica Harrison-Harper was an employee of Nike and manager at a Converse retail store. She was hired in July 2014. During the first several months of her employment numerous complaints were received about Harisson-Harper. For example, a customer complained about her refusal to accept the return of a pair of shoes bought at the store. Nike received multiple complaints about Harrison-Harper from her employees about her mismanagement and demeanor, and also from a neighboring Nike store. There was a complaint that Harrison-Harper violated a family discount policy. She was counseled regarding failure to document employee time and attendance issues, and about her plan to rehire an employee she had previously fired for calling a subordinate a “bitch.”