Tuesday, July 5, 2011

Time after time, time alone is not enough to prove retaliation

More than three years ago, I discussed that an employee needs to prove something more than the mere closeness in time between protected activity and adverse action to prove retaliation. Last week, in Meyers v. Goodrich Corp., the Cuyahoga County Court of Appeals decided a case which further illustrates this point, and clarifies that as more time passes, the more additional evidence of retaliation an employee needs.

In Meyers, an entire year lapsed between when the company’s vice-president of HR interviewed the plaintiff in a harassment investigation and his termination. The Court concluded that the lapse in time, coupled with the lack of any additional evidence of a retaliatory motive, doomed Meyers’s claim:

In this case, no inference of causation can be deduced from “temporal proximity.” Goodrich did not terminate Meyers until a year after he participated in the internal discrimination investigation. Thus, to survive summary judgment, Meyers was required to submit additional evidence of retaliatory conduct—or discriminatory intent—between the time he took part in the protected activity and the time he was fired.

There is evidence that sometime before October 2006, Goodrich managers met to discuss how to improve the overall performance of its employees, including supervisors…. The managers ranked Meyers the 24th lowest-performing production supervisor out of 26 supervisors…. Meyers's manager at that time, sent Meyers a letter on October 26, 2006, notifying him that he had 30 days to improve and maintain his performance in certain areas, which were outlined in the letter. But notably, this occurred three months before Meyers took park in the internal investigation.

Even according to Meyers, after January 2007 when the protected activity occurred, the evidence indicates that Goodrich's conduct—if anything—was favorable to him, not retaliatory. He received a 3.5 percent merit raise in April 2007, where he asserts he “was in line with the raises of several of his fellow supervisors.” …

As Meyers concluded in his appellate brief, “[t]he record is simply devoid of any evidence" that Goodrich treated him badly in 2007…, i.e., “[n]o write-ups, no disciplinary actions, no poor reviews.”

Retaliation continues to be the most dangerous EEO claim employers face. The Meyers case shows that employers can win these cases, provided they engage in the proper handling of employee performance issues, coupled with the passage of time, following protected activity.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.