On April 6, 2016, Chief United States District Court Judge Keith Watkins sent a Title VII retaliation claim to a jury trial — even though more than 12 years expired between the protected conduct and the retaliatory action. See Pace v. Alfa Mutual Ins. Co., No. 2:13-CV-697-WKW, 2016 WL 1370029 (M.D. Ala. Apr. 6, 2016).
Title VII of the Civil Rights Act of 1964 provides protection to employees who participate in proceedings involving claims of discrimination made by other employees. In Pace, Mr. Pace provided interviews and deposition testimony in September 2000 in connection with a sexual harassment claim made by a co-worker against Alfa Insurance Company and his direct supervisor, Alvin H. Dees, Jr. After the interviews and deposition, Dees resigned from employment with Alfa in October 2000. Mr. Pace continued to work with Alfa.
In the fall of 2012, the executive leadership at Alfa changed, and Dees was rehired as Mr. Pace’s supervisor effective February 1, 2013. On January 31, 2013, Mr. Pace and Dees engaged in a telephone conversation in which Dees said: “[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?” Thereafter, Dees was hostile towards Mr. Pace, and Mr. Pace received a demotion on April 30, 2013. Mr. Pace sued claiming that his demotion was in retaliation for his protected interviews and deposition in 2000.
As part of a retaliation claim, a plaintiff like Mr. Pace must prove that his demotion was caused by his protected conduct (the depositions and interview). The Eleventh Circuit Court of Appeals has generally held that causation is proven by a close period of time between the protected conduct and the adverse job action. But, the Eleventh Circuit has held that a three to four month period of time is too long to prove causation. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
Naturally, Alfa asked Judge Watkins to dismiss the retaliation claim: if three to four months is too long, then 12 years must be far too long. Judge Watkins disagreed and relied heavily upon Dees’s telephone call with Mr. Pace: “The evidence reflects that, on January 31, 2013, the day before officially returning to Alfa, Plaintiff and Dees engaged in a telephone conversation in which Dees said, ‘[B]oy, I bet you thought you’d never have to mess with me again now, didn’t you?’ … Thus, despite the fact that years had passed since the time of Plaintiff’s participation in the Wilson matter, the Plaintiff’s testimony indicates that Dees had not forgotten the circumstances surrounding why he left his employment with Alfa in 2000.” Pace, 2016 WL 1370029 at *9. That finding was sufficient to support causation.
The Pace case is probably an outlier in terms of retaliation claims. Nevertheless, if revenge is a dish best served cold, don’t brag when you are about to retaliate for old protected conduct.