CIRCUMSTANTIAL EVIDENCE OF RETALIATION

CIRCUMSTANTIAL EVIDENCE OF RETALIATION 1. Evidence raises inference that retaliation was the cause of the challenged action; 2. Respondent produces evidence of a legitimate, non-retaliatory reason for the challenged action; and 3. Complainant proves that the reason advanced by the respondent is a pretext to hide the retaliatory motive. An initial inference of retaliation arises where there is proof that the protected activity and the adverse action were related. Typically, the link is demonstrated by evidence that: (1) the adverse action occurred shortly after the protected activity, and (2) the person who undertook the adverse action was aware of the complainant's protected activity before taking the action. An inference of retaliation may arise even if the time period between the protected activity and the adverse action was long, if there is other evidence that raises an inference of retaliation. For example, in Shirley v. Chrysler First, Inc. , a 14-month interval between the plaintiff's filing of an EEOC charge and her termination did not conclusively disprove retaliation where the plaintiff's manager mentioned the EEOC charge at least twice a week during the interim and termination occurred just two months after the EEOC dismissed her charge. Common non-retaliatory reasons offered by respondents for challenged actions include: poor job performance; inadequate qualifications for the position sought; violation of work rules or insubordination; and, with regard to negative job references, truthfulness of the information in the reference. For example, in one case, the plaintiff claimed that she was discharged for retaliatory reasons but the employer produced unrebutted evidence that she was discharged because of her excessive absenteeism. In another case, the plaintiff alleged that his former employer's negative job reference was retaliatory, but the defendant established that the evaluation was based on the former supervisor's personal observation of the plaintiff during his employment and contemporary business records documenting those observations. Even if the respondent produces evidence of a legitimate, nondiscriminatory reason for the challenged action, a violation will still be found if this explanation is a pretext designed to hide the true retaliatory motive. Typically, pretext is proved through evidence that the respondent treated the complainant differently from similarly situated employees or that the respondent's explanation for the adverse action is not believable. Pretext can also be shown if the respondent subjected the charging party's work performance to heightened scrutiny after she engaged in protected activity.