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Timing as Circumstantial Evidence of Retaliation in Employment Law Cases

Whistleblower, Clock, Read, Hours

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.”

Harrison-Harper was advised of these complaints, and that they were being investigated on September 24 and October 5, 2014.  On the October 7, 2014 Harrison-Harper told her supervisor that her subordinate had spoken about her in  “sexually suggestive way,” had told people that Harrison-Harper had “flirted with a minor,” and had gone through Harrison-Harper’s girlfriend’s social media accounts.

Harrison-Harper was terminated on October 28, 2014 for “(1) the costumer complaint regarding returning shoes; (2) the employee-discount violation; (3) the rehiring of [the formerly fired employee]; and (4) the failure to document and enforce time and attendance issues.”  Harrison-Harper filed suit against Nike and her supervisors for violation of Title VII, claiming that her termination was retaliation for her complaint on October 7th.

Title VII, just like New Jersey’s Law Against Discrimination, prohibits firing an employee in retaliation for complaints of discrimination or harassment, which Harrison-Harper alleged was the actual reason Nike terminated her employment (New Jersey’s Conscientious Employee Protection Act prohibits retaliation against employees who object to illegal conduct).  In the Third Circuit’s opinion, Judge Chagares explained that a plaintiff must establish a prima facie case of retaliation by “show[ing] that (1) she engaged in protected activity, (2) the employer took a materially adverse action against her, and (3) there was a causal connection between the protected activity and the employer’s action.” He explained that it was the third part of the test which was at issue in this case: whether there was “a causal connection between Harrison-Harper’s protected activity — reporting alleged sexual harassment by [the other employee] — and Nike’s termination of Harrison-Harper.”

As is often the case, there was no “smoking gun” – ie., there was direct testimony that anyone at Nike admitted that retaliation was the reason for Nike’s termination of Harrison-Harper.  She therefore relied on circumstantial evidence, namely that Nike fired her several weeks after her complaint.

The Third Circuit explained that:

Unusually suggestive temporal proximity between the protected activity and the adverse action can be sufficient “to create an inference of causality and defeat summary judgment.” There is “no bright line rule” for unusually suggestive temporal proximity…. three months is not enough, but two days is. That said, courts review the whole record and not merely the length of time between protected activity and adverse action. Courts consider “intervening antagonism or retaliatory animus, inconsistences in the employer’s articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus,” but also relevant to the analysis is whether employment-related issues are documented prior to the protected activity. Courts look at all “circumstantial evidence that support[s] the inference” of causation.

While three weeks is certainly a short period between the protected activity and the adverse action, Harrison-Harper fails to establish causation for two reasons. First, [Harrison-Harper’s supervisor] had received multiple complaints regarding her work and leadership before she reported the alleged harassment. The customer complaint was brought to Sanders’ attention on September 24; Sanders received complaints from other employees on October 3; and Sanders learned of the employee-discount violation on October 5. Upon investigation of these complaints, Sanders also learned of Harrison-Harper’s failure to maintain time and attendance logs of her employees. And she did not report the alleged harassment until October 7…. [T]here was a clear pattern of issues regarding Harrison-Harper’s performance before she complained of the alleged harassment, so she cannot establish causation.

Second, four employees contributed to the decision-making process that resulted in her termination. All four approved the decision. And only one of the four, Sanders, had any knowledge of her report of the purported harassment…. [An employee] cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff’s protected conduct at the time they acted.

The takeaway for employees is that circumstantial evidence, particularly close timing between the complaint and the adverse employment action, is admissible and valuable in proving retaliation.  However, it is not enough.  There needs to be additional evidence supporting the conclusion that the employer’s actual motivation and its excuses were mere pretext.  Moreover, employees should document everything (without taking documents that it would be illegal for them to have).

The takeaway for employers is that while proximity between the complaint and the termination can be powerful evidence in making it seem that the termination was retaliation, it can be overcome.  The best way to overcome it is – like in any employment law case – documentation.  All of the reasons that an employee is being terminated should be thoroughly documented.  This is true even though New Jersey is an employment “at will” state.  The law may allow an employer to fire an employee for any reason as long as it is not illegal, but without documentation a jury could – and very well might – decide that the reasons the employer gave were just pretext, or excuses for retaliation.

Our employment law attorneys represent employers and employees in in all phases of New Jersey employment law, in both federal and state court.  Call us at (973) 890-0004 or fill out the contact form on this page.  We can help.