As employers know, retaliation cases are notoriously difficult to defend. However, two recent decisions from federal courts of appeal may help employers prevail in such cases. The Sixth and Seventh Circuit U.S. Courts of Appeals recently affirmed summary judgment in two retaliation cases, both courts holding that the employees' claims did not establish a causal connection between the protected activity and adverse employment action.
Timing Alone Insufficient Where Multi-Year Gap Between Protected Activity and Adverse Action
In Fuhr v. Hazel Park Sch. Dist., No. 2:08-cv-11652 (6th Cir. Mar. 19, 2013), the Sixth Circuit affirmed summary judgment for Hazel Park School District, finding no causal connection between a coach's prior lawsuit and her subsequent removal from a coaching position. Fuhr served as the high school girls' varsity basketball head coach at Hazel Park High. In 1999, Fuhr sued the school district, alleging gender discrimination based on the school district's failure to hire her as the high school boys' varsity basketball head coach. At the time, the boys' and girls' teams played during different seasons. Fuhr ultimately prevailed and in 2004 became the boys' basketball coach. Anticipating a federal district court order requiring the basketball seasons be played at the same time, the school district removed Fuhr as the girl' head coach in 2006 because it would be too difficult to coach two teams in the same season.
Fuhr sued, claiming that her removal as the girls' coach and other harassing acts were retaliation for prevailing in her previous lawsuit. Fuhr claimed her principal told her that "this is a good old boys network....They are doing this to you to get back at you for winning the lawsuit." The Sixth Circuit determined that the principal's statement was too ambiguous to provide direct evidence of unlawful retaliation. The court next found that Fuhr failed to demonstrate a causal connection between her prior lawsuit and removal as the girls' coach. While a close temporal proximity between events can constitute evidence of a causal connection, here, the "multi-year gap prove[d] fatal" to establishing causality. The court also added that even if Fuhr could prove causation, the school district was able to offer legitimate, non-discriminatory reasons for any alleged harassing actions. Accordingly, the Sixth Circuit affirmed summary judgment for the school district on Fuhr's retaliation claim based on the lack of any temporal proximity.
Employee's Disagreement with Employer's Investigation Does Not Prove Retaliation
In Collins v. American Red Cross, No. 08-cv-50160 (7th Cir. Mar. 8, 2013), the Seventh Circuit affirmed summary judgment in favor of the American Red Cross, finding that the employer's investigation report, albeit possibly incorrect, is not evidence of unlawful retaliation or discrimination. Collins, an African-American woman, worked for the Red Cross. In 2006, Collins filed a racial discrimination charge with the Equal Employment Opportunity Commission ("EEOC") based on harassment from her co-workers. Collins received a "right-to-sue" letter, but did not file a suit. In 2007, Collins's co-workers complained that, among other acts of misconduct, Collins said that the Red Cross was out to get minorities. The human resources officer assigned to investigate found that all of these allegations against Collins were "substantiated," and Collins was terminated.
Collins sued, claiming that her termination was in retaliation for her filing of the EEOC charge. Collins claimed that the report did not really substantiate the claim that Collins said the Red Cross is out to get minorities, and therefore, the report must have been referring to the EEOC complaint. Although the report was "sloppy, and perhaps it was also mistaken or even unfair," Title VII only forbids discriminatory or retaliatory terminations. Nothing in the report suggested the Red Cross was concerned with Collins's EEOC complaint. Collins only provided speculation that the report was incorrect because of the EEOC complaint, and mere speculation is not enough to overcome summary judgment. Accordingly, the Seventh Circuit affirmed summary judgment for the Red Cross on Collins's retaliation claim because she failed to show a causal link between the filing of her EEOC complaint and her subsequent termination.
The Seventh Circuit also affirmed summary judgment on Collins's race discrimination claim because Collins failed to prove that the Red Cross' reason for termination was pretextual, emphasizing that "pretext means a lie." The only piece of evidence Collins offered was that she denied all the allegations raised by her co-worker's complaints. Denying the allegations is not enough to survive summary judgment because the "fact that a statement is inaccurate does not meant that it is a deliberate lie." Evidence that an employer reached the wrong conclusion can suggest discrimination if the conclusion were "incredible on its face." However, here, the court found that the report's conclusions were not incredible, and there was nothing in the record to suggest racial animus toward Collins. While the Red Cross's report may have been wrong, that is not enough for Collins's claim to survive summary judgment.
Sound Employer Practices Remain Key to Successful Defenses
As is clear from the Seventh Circuit case, employer investigations remain a key component of successful defenses of claims. Employers should utilize human resources or other professionals who are trained in both conducting investigations and writing investigation reports to investigate allegations of harassment, discrimination or retaliation. Also keep in mind that, as the Sixth Circuit case suggests, if a long period of time elapses between the employee's protected activity and the adverse action, it is likely that additional evidence of retaliatory conduct will be required in order for the employee to prevail. To defeat any such evidence, employers should be sure that the legitimate, non-discriminatory reasons for the actions taken are well-documented.