Three-Year Time-Interval Between Protected Activity and Adverse Job Action Not a Bar to Title VII or FMLA Retaliation Claims

On August 7, 2014, the 7th Circuit reversed summary judgment on Title VII and FMLA retaliation claims. Malin v. Hospira, Inc., No. 13-2433 (7thCir., August 7, 2014). In order to state a claim for Title VII or FMLA retaliation, a plaintiff must provide evidence of: (1) protected expression; (2) materially adverse employment action; and (3) a causal connection between the two. A formal complaint of sexual harassment to human resources and a request for FMLA leave constitute protected activity. A failure-to-promote and a demotion constitute materially adverse employment action. InMilan, three years stood between the protected activity and adverse employment action. However, a lengthytime-interval between the protected activity and adverse job action is not an absolute bar to a retaliation claim. As time passes between the protected activity and adverse action, the inference of retaliation weakens, but the plaintiff may still support her retaliation claim with other circumstantial evidence. The unique facts and circumstances of each retaliation case must be evaluated, regardless of the timing between protected activity and adverse action, for which there is no bright-line rule.

InMilan, the plaintiff was consistently singled out by management as a top performer and good fit for various open positions for which she applied but was not even considered. These facts raised an inference of retaliation, despite the passage of three years. Additionally, prior incidents of the failure-to-promote the plaintiff were admissible as background evidence to bridge the protected activity and adverse job action, even though the incidents occurred outside of the 300-day time-limitation under Title VII.

On the FMLA retaliation claim, conflicting evidence as to whether the employer had already decided to not promote the plaintiff before she requested FMLA leave, combined with othercircumstantial evidence, raised an inference that the employer denied plaintiff promotions and demoted her in retaliation for her FMLA leave request.

The 7th Circuit held that the plaintiff provided sufficient evidence to withstand summary judgment on her FMLA and Title VII retaliation claims and, therefore, reversed the district court’s entry of summary judgment on each of these claims.