We all understand that filing a discrimination charge with a government agency is protected activity, but one employee recently claimed that withdrawing such a charge is also protected. Read on to see how the court responded to that novel approach.
“Karen” worked as a senior business analyst at AgStar Financial Services, which provides financial and credit services to agricultural and rural clients in Wisconsin and Minnesota. In 2011, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which she asserted that her supervisor based salary and promotional decisions on her age and gender. The charge was cross-filed with the Wisconsin Equal Rights Division (ERD). On August 3, 2012, the EEOC dismissed her charge without finding evidence to support her allegations of discrimination.
Although the EEOC charge was dismissed, Karen’s ERD charge remained open until she voluntarily withdrew it on June 16, 2014. Many months later, on February 17, 2015, she received her 2014 performance evaluation, in which her supervisor rated her work average and recommended an average performance salary increase of 3.1%. Karen wasn’t pleased, and at a follow-up meeting on February 23, she referred to AgStar as the “Good Ol’ Boys Club” and claimed the performance review was retaliation for her 2011 EEOC charge.
On May 23, 2015, Karen filed a new charge with the EEOC in which she repeated her allegation that the 2014 performance review was retaliation for her 2011 charge. On July 1, 2016, the EEOC found her claim lacked merit and dismissed it. She then sued the company in federal district court in Minnesota under federal and state discrimination laws. The company filed a motion for summary judgment (dismissal of the case without a trial).
4 Years Is Too Long to Assume a Retaliatory Motive
Karen claimed that the 2014 performance evaluation and minimal salary increase were retaliatory based on three specific instances of protected activity:
- Filing her 2011 EEOC charge;
- Later withdrawing her charge with the ERD in June 2014; and
- Raising the issue of discrimination/retaliation during the February 23, 2015, meeting with her supervisor.
U.S. District Judge Ann Montgomery only needed to look at the calendar in dismissing both the first and the third claims. In rejecting the first claim, the judge explained that a gap of more than 3 years between the EEOC charge and the challenged performance review was too long to establish a causal connection, at least without any other evidence indicating retaliation.
Judge Montgomery dismissed the third claim just as swiftly, reminding Karen that a disappointing evaluation issued on February 17 couldn’t logically have been retaliation for a statement made on February 23.
Retaliation for Not Opposing the Employer’s Practice?
To support her second claim, Karen contended that the withdrawal of her ERD claim was protected activity because it “gave notice to AgStar that she had no recourse against [it], implying that AgStar would have been very reluctant [about] taking adverse action against her while a claim of discrimination was being investigated.”
In other words, the company wouldn’t have dared to take action against her while a claim was pending, but the withdrawal of the claim “caused” the company to finally decide it was safe to retaliate against her.
Judge Montgomery disagreed, noting simply that protected activity is defined as conduct that opposes discrimination, and choosing to withdraw a claim of discrimination cannot be considered an act that opposes an employer’s unlawful conduct. Accordingly, the case was dismissed in its entirety. Winkelman v. AgStar Fin. Servs., ACA, 2017 U.S. Dist. LEXIS 184281 (Dist. Ct. Minn., Nov. 7, 2017).
What We Learn from This
This case reminds us that timing is critical in assessing retaliation claims. When an adverse employment action is taken years after the protected activity, a retaliatory motive isn’t likely to be inferred. Moreover, retaliation for protected activity obviously cannot be inferred when the allegedly retaliatory act occurs before the protected activity actually takes place. Finally, an employee isn’t likely to be successful in claiming retaliation if she argues that the retaliation began when she stopped engaging in protected activity. Enough said.
Grant Gibeau, a contributor to Minnesota Employment Law Letter, may be contacted at firstname.lastname@example.org.