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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Does A Long Gap Between Worker’s Discrimination Complaint & Discharge Destroy A Retaliation Clam?

retaliation

For more than two decades, our Citrus County, Florida retaliatory termination lawyers have fought for the rights of Florida employees who have been retaliated against for complaining about perceived discrimination in the workplace. Having represented retaliation victims for more than twenty years, our Inverness, Florida retaliatory termination attorneys know that employers maintain that a lengthy passage of time between an employee’s discrimination complaint and termination is legally conclusive proof against a retaliatory discharge. In other words, employers contend that when there is a long time gap between an employee’s discrimination complaint and termination, the long time gap, by itself, forecloses a retaliatory discharge claim.

However, as observed by the U.S. Seventh Circuit Court of Appeals in Lalvani v. Cook County, 269 F.3d 785 (7th Cir. 2001), “[t]here will be cases” in which an employee can prove a retaliatory discharge claim despite “a substantial time lag” between the employee’s discrimination complaint and termination. Thus, as the Seventh Circuit explained in Veprinsk v. Flour Daniel, Inc., 87 F.3d 881 (7th Cir. 1996), a time gap of “five to ten years” between an employee’s discrimination complaint and termination is not too long if the employee “has evidence from which one may reasonably infer that her . . . employer waited in the weeds” to retaliate.

In this article, our Citrus County, Florida retaliatory termination lawyers explain how the recent decision by the U.S. District Court for the District of Arizona in Sayers-Russell v. Southwest Airlines Company, Case No. 19-05426 (D. Ariz. Jan. 15, 2021) demonstrates that the mere passage of time between events does not, by itself, foreclose a retaliatory discharge claim, and that retaliation may be established even when there is a period of months or years between an employee’s discrimination complaint and termination.

Worker Claims Retaliatory Discharge

In that case, Leslie Sayers-Russell (Sayers-Russell) brought a retaliatory discharge case against her former employer, Southwest Airlines Company (Southwest), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects employees from discrimination on the basis of sex. Title VII also protects employees from retaliation when they lodge a sex discrimination complaint internally or with the U.S. Equal Employment Opportunity Commission (EEOC). Sayers-Russell alleges that Southwest violated Title VII by firing her in retaliation for making a sex discrimination complaint with the EEOC.

Sayers-Russell worked as a Field Instructor for Southwest. In December 2016, Sayers-Russell filed a sex discrimination complaint with the EEOC alleging adverse treatment based on her sex by her direct supervisor, DiDomenico. The EEOC complaint was resolved through a mediation agreement dated January 31, 2017. In her retaliation lawsuit, Sayers-Russell claims that DiDomenico, starting in January 2019, began “criticizing [her] unfairly for her work.”

For example, Sayers-Russell claims that DiDomenico “sent her a critical email” to her about not having completed her instructor-led training conducted on January 28, 2019 within the time allowed. Sayers-Russell contends that when she told DiDomenico before the training that she would not be able to complete it on time, he told her she would “own” her decision, which she took as consent to exercise her professional judgment and instead finish it the following day. Sayers-Russell further alleges that when she asked DiDomenico why he did not directly order her to finish her instructor-led training in one day, rather than telling her that she would “own” her decision, DiDomenico responded by saying that he did not want her going to the EEOC and filing another EEOC complaint. Sayers-Russell also claims that DiDomenico “criticized” her for leaving work early one day and “criticized” her for not first informing him of her early departure, but did not criticize other employees for similar conduct that “was standard practice.” DiDomenico also “criticized” Sayers-Russell for inaccurately logging her timekeeping data entry, which she thereafter corrected.

On June 28, 2019, Southwest fired Sayers-Russell. The legitimate, non-retaliatory reasons offered by Southwest for Sayers-Russell’s termination were her failure to complete instructor-led training on the day it was supposed to be completed, her poor reviews on her training, incorrectly logging her timekeeping data entry, and leaving early without notifying DiDomenico. Sayers-Russell claims that these reasons are a pretext to cover-up her retaliatory discharge.

Employee Can Still Prove Retaliatory Discharge

Southwest filed a motion with the trial court seeking dismissal of Sayers-Russell’s retaliatory discharge claim. In doing so, Southwest argued that the long time gap between Sayers-Russell’s EEOC discrimination complaint and termination—over three and a half years—was legally conclusive proof against retaliation. The trial court denied Southwest’s motion for dismissal and ruled that it was for a jury to decide whether Sayers-Russell was fired in retaliation for lodging a sex discrimination complaint with the EEOC over three and a half years earlier.

In denying Southwest’s motion for dismissal, the trial court explained that close timing between an employee’s discrimination complaint and termination is but one method of proving a retaliatory discharge claim, and a significant gap between the two events does not destroy a retaliation claim. When temporal proximity between the two events is missing, the trial court observed, courts look to the intervening period for other evidence of retaliatory animus. In looking to the intervening period between Sayers-Russell’s EEOC discrimination complaint and termination, the trial court pointed to DiDomenico’s alleged remarks that he did not want Sayers-Russell going to the EEOC and filing another EEOC complaint. This purported remark, the trial court pointed out, was made some four months before Sayers-Russell was fired and was evidence that DiDomenico “still harbored resentment for the EEOC complaint.”

In ruling that Sayers-Russell was entitled to a jury trial on her retaliatory discharge claim despite the more than three and a half year gap between her EEOC discrimination complaint and termination, the trial court also observed that there was evidence that other Flight Instructor’s “routinely” left work early without informing DiDomenico first, that other Flight Instructors also incorrectly logged their timekeeping data entry without punishment, and that other Flight Instructors were treated more favorably after receiving poor reviews on their training. Based on this evidence, the trial court concluded, a jury could reasonably find that Southwest’s proffered explanation for terminating Sayers-Russell was a pretext for retaliation.

Inverness, FL Retaliatory Discharge Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida retaliatory termination attorneys have litigated retaliation claims in Florida courts for more than twenty years. If you have been fired in retaliation for exercising your employee rights or have questions about your protection from retaliation under the federal employment laws, please contact our office for a free consultation with our Inverness, Florida retaliatory termination lawyers. Our employment and labor law attorneys take retaliatory discharge cases cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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