explaining that a plaintiff must show: (1) he engaged in a protected activity; (2) the employer was aware of this protected activity; (3) the employer later took an adverse employment action against him; and (4) there was a causal connection between the protected activity and the adverse employment action
How later courts described this case
- explaining that a plaintiff must show: (1) he engaged in a protected activity; (2) the employer was aware of this protected activity; (3) the employer later took an adverse employment action against him; and (4) there was a causal connection between the protected activity and the adverse employment action
- stating, in the context of a retaliation claim, that “where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”
- explaining that temporal proximity alone is sufficient to establish a prima facie case of retaliation when an employer “immediately retaliates against an employee upon learning of his protected activity” meaning “little other than protected activity could motivate the retaliation”
- explaining that temporal proximity would be enough where the “employer’s learning of the protected activity is so closely followed by the employer’s taking of -7- Case No. 17-3737, Stein v. Atlas Indus., Inc. an adverse action that the two are virtually contemporaneous”
Written by the judges who cited it.
The opinion
ALICE M. BATCHELDER, Circuit Judge,
concurring.
I join in all but section 11(B) of the lead opinion. While I join in the result the opinion reaches in section 11(B) — namely, that an employer’s firing an employee within minutes of learning of the employee’s protected activity is enough to establish a prima facie case of retaliation — I write separately for two reasons. First, I cannot agree with the lead opinion’s reading of this circuit’s precedents on the question of whether “temporal proximity” alone can satisfy the causal connection prong of the McDonnell Douglas framework. Second, I cannot agree that actions an employer took not only prior to learning of the employee’s protected activity — but also prior to the protected activity itself — can possibly amount to evidence of retaliation.
The lead opinion takes an expansive view of the precedent in this circuit. In Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir.2000), a case in which we affirmed the district court’s determination that the plaintiff had not established a prima facie case of retaliation, we stated in dicta that “while there may be circumstances where evidence of temporal proximity alone would be sufficient to support [an inference of a causal link], we do not hesitate to say that they have not been presented in this case.” Then, the majority in DiCarlo v. Potter, 358 F.3d 408 (6th Cir.2004), seized upon that dicta, along with several unreported cases — which have no precedential value — to claim that we “have embraced the premise that in certain distinct cases” the time between the protected activity and the adverse employment action is so brief that it “is deemed indirect evidence such as to permit an inference of retaliation to arise,” 358 F.3d at 421 , and to hold that “[i]n light of our prior precedent the temporal proximity between the two events [2 weeks] is significant enough to constitute indirect evidence of a causal connection so as to create an inference of retaliatory motive.” Id. at 422 . In fact, however, until DiCarlo we had never held that temporal proximity, standing alone, satisfies the fourth prong of the McDonnell Douglas analysis. See Asmo, 471 F.3d at 598-601 (J. Griffin, dissenting) (explaining the development of the precedent in this circuit).
There is another line of cases in this circuit, indeed the great majority of cases, standing for the proposition that temporal proximity alone is not sufficient to establish a causal connection for a retaliation claim. See e.g. Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir.2007); Randolph v. Ohio Dept. of Youth Serv., *529 453 F.3d 724, 737 (6th Cir.2006); Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001). Those cases required other evidence of retaliatory conduct, in addition to temporal proximity, to demonstrate a causal connection. See Tuttle, 474 F.3d at 321 (citing Moore v. KUKA Welding Sys., 171 F.3d 1073 , 1080 (6th Cir.1999)). But we have never — at least in a published opinion — dealt with a case like the one before us here. Nguyen should be read as leaving the door open very slightly for a finding that in a case in which the employer’s learning of the protected activity is so closely followed by the employer’s taking of an adverse action that the two are virtually contemporaneous— exactly the circumstances in this case — the temporal proximity between the two is alone sufficient to establish the causal connection necessary for the fourth prong of a prima facie case of retaliation.
As the lead opinion points out, upon arriving at Zeidler Tool & Die on the morning of October 19, 2004, DeForge learned of Mickey’s EEOC complaint. When Mickey arrived at 7:30 a.m., De-Forge immediately fired him. There was virtually no time between these two events for DeForge to engage in any other conduct that would demonstrate any retaliatory motive or intent. Hence, Zeidler “ironically [has] a stronger defense than those who delay in taking adverse retaliatory action.” Lead opinion at 7. In this factually unusual case, the extremely close temporal proximity between these events does permit an inference that DeForge fired Mickey because of Mickey’s protected activity.
Realizing that our precedent suggests that temporal proximity is not enough to establish the fourth prong of a prima facie case of retaliation, the lead opinion attempts to supply additional evidence of retaliation in the form of actions taken by DeForge before Mickey filed his EEOC claim. Specifically, the opinion states:
[E]ven assuming that close temporal proximity by itself is not enough to establish causation for the purposes of a retaliation claim, the reduction in Mickey’s salary and benefits in 2004, along with DeForge’s occasional inquiries regarding Mickey’s retirement plans, constitute sufficient additional circumstantial evidence to establish a prima facie case.
Lead opinion at 526. Apparently recognizing the logical fallacy of using as evidence of retaliation events that preceded the act allegedly prompting the retaliation, the opinion declares that “although these events occurred prior to [Mickey’s] protected conduct, a reasonable juror could conclude that Zeidler’s actions, coupled with exceptionally close temporal proximity, demonstrate an underlying bias that tends to prove the later termination involved retaliatory discrimination.” The opinion cites no authority in support of this proposition, and I must respectfully disagree with it.
“Retaliate,” according to Merriam-Webster’s Online Dictionary, available at http://www. merriam-webster. com/ dictionary/retaliate (last visited January 24, 2008), is either a transitive verb meaning “to repay (as an injury) in kind,” or an intransitive verb meaning “to return like for like; especially: to get revenge.” One cannot repay or act in response to or get revenge for something that has not yet happened. No reasonable juror could conclude that DeForge intended to retaliate against Mickey for his filing the EEOC charge before he was aware that Mickey had done so, let alone before Mickey had undertaken the protected activity in the first place, and therefore, DeForge’s actions prior to Mickey’s filing of the EEOC charge cannot be evidence of retaliation *530 for that protected activity. This evidence is immaterial to Mickey’s retaliation claim and cannot be used to support it.
I concur in the lead opinion’s conclusion that Mickey has presented sufficient evidence of retaliation to survive summary judgment, but I would simply hold that the unique circumstances of this case — De-Forge’s firing Mickey immediately after learning that Mickey had filed an EEOC charge — suffice to establish the causal connection prong of Mickey’s prima facie case. I cannot agree that the actions DeForge took before Mickey filed his EEOC charge, upon which the lead opinion relies, are material or relevant to this claim.