Reminder – Retaliation Claim Can Succeed even if Discrimination Claim Fails

A recent Ninth Circuit Court of Appeals’ decision is a reminder that employee claims for retaliation can succeed even where the employee’s claims for discrimination fail, and that the shorter the time period between the protected activity and the adverse employment action, the more likely an employee’s retaliation claim will survive summary judgment. 

In Alioto v. Associate Creditors Exch., the District Court granted the employer’s motion for summary judgment on all of the employee’s work related claims.  On appeal, the Ninth Circuit Court of Appeals agreed that the employee failed to establish her Title VII hostile work environment claim, because the conduct complained of was not sufficiently severe or pervasive to alter the conditions of her employment.  However, the Court of Appeals reversed dismissal of the retaliation claim because it found that a reasonable jury could find that the employee established a causal link between her protected activity and the termination of her employment, as her employment was terminated two hours after she complained about her coworker’s behavior.  http://www.ca9.uscourts.gov/memoranda/view_subpage.php?pk_id=0000011344

The lesson: terminating an employee right after they complain is a bad idea unless you have a well documented file so you can show the temporal proximity of the termination was a coincidence.

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