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Claim for Retaliation Not Barred Merely by Passage of Time


Retaliation by an employer against an employee for complaining about sexual harassment is illegal under Title VII. But what if the retaliation takes place over 3 years after the alleged harassment occurred? Has too much time elapsed for there to be a valid claim?

Deborah Malin began working at Abbott Laboratories in April 1996 as an employee of the Information Technology (IT) department. In July 2003, she advised her supervisor that she was going to complain to Human Resources about sexual harassment by Satish Shah, her indirect supervisor. When the direct supervisor notified a divisional manager about her complaint, he was told to do everything in his power to stop her from going to HR. Nevertheless, Malin made a formal sexual harassment complaint, and from that point on, the divisional manager evidenced hostility towards her. HR investigated her allegations and issued a counseling memorandum to the harasser.

In May 2004, Abbott spun off Malin's division from the main company. The divisional manager became chief information officer of the new company and had final decision-making authority on all promotions. Between the 2003 complaint and the 2006 reorganization, the employee applied for several promotions but received none. By January 2006, Malin told her supervisor she believed she was experiencing ongoing retaliation from the IT head because she had reported an incident to HR. The supervisor reported her retaliation comment to HR but no further action was taken.

In 2006, the department went through an extensive reorganization. Malin asserted that Abbott engaged in retaliation prohibited by Title VII when it failed to promote her and effectively demoted her as part of the 2006 reorganization, all because she had made the sexual harassment complaint in 2003.

Malin proceeded under the direct method of proof, which required her to provide evidence that (1) she engaged in a statutorily protected activity, (2) her employer took a materially adverse action against her, and (3) there was a causal connection between the two. The lower court found no causal connection and ruled for Abbot in a summary judgment motion, but the Seventh Circuit Court of Appeals reversed it.

The appeals court rejected Abbot's contention that the three-year time interval was a "fatal time gap" that foreclosed any inference of retaliation. "The mere passage of time is not legally conclusive proof against retaliation." In fact, in a prior ruling, the Seventh Circuit expressly declined to adopt a rule that a long enough interval between protected activity and adverse employment action will bar any inference of retaliation.

The court stated that "A mechanistically applied time frame would ill serve our obligation to be faithful to the legislative purpose of Title VII. The facts and circumstances of each case necessarily must be evaluated to determine whether an interval is too long to permit a jury to determine rationally that an adverse employment action is linked to an employee's earlier complaint."

The evidence in this case permitted an inference that the IT chief had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Thus, the court held that Malin offered sufficient evidence to survive summary judgment on her Title VII retaliation claim.

The takeaway: If you have complained about sexual harassment in your workplace, and then several years later was subject to adverse employment action by your employer, you still may have a cause of action for retaliation if you can show some possibility of a causal connection.
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