EVIDENCE OF AN EMPLOYEE HAVING FILED A HARASSMENT COMPLAINT YEARS BEFORE ANY ALLEGED RETALIATION CAN BE ENOUGH OF A CAUSAL LINK FOR AN EMPLOYEE TO PURSUE A RETALIATION CLAIM UNDER TITLE VII
Shortly after starting work as a correctional officer in 1995, Lawana Porter reported alleged incidents of sexual harassment by her immediate supervisor, Sergeant Wheeler, including requests for dates and to take overnight trips to Reno with him. She turned to a co-worker and president of the local police officers union, Pete DeSantis, for help. Subsequently, Mr. DeSantis also began to allegedly harass Ms. Porter, claiming he could make her feel better with his tongue and inviting her to go on an overnight trip to Reno to pick up union supplies and later to a union convention in Sacramento. Ms. Porter never reported the alleged acts of harassment by Mr. DeSantis, but her reports of harassment by Sergeant Wheeler resulted in Wheeler receiving an “Employee Counseling Record” during February 1996.
At the same time Sergeant Wheeler was disciplined, Mr. DeSantis became a sergeant with authority over Ms. Porter. Starting in 1997 and continuing through 1998, Sergeant DeSantis allegedly denied Ms. Porter requests for vacations and numerous transfers. In September 1998, Ms. Porter reported Sergeant DeSantis’ conduct to Lieutenant Anglea, which resulted in another internal investigation. In November 1998, Ms. Porter left on medical leave and did not return until September 2000. Ms. Porter claims to have been retaliated against, both during and after her leave by supervisors and co-workers.
The trial court dismissed Ms. Porter’s retaliation claims finding that the time period between her reporting of the alleged acts of sexual harassment and when the alleged retaliation occurred for having made such reports was too long to prove a causal link between the two. The U.S. Court of Appeals for the Ninth Circuit reversed, finding that “causality is not dependent, as a matter of law, on temporal proximity”. The court ruled that circumstantial evidence of a pattern of antagonism following protected conduct can give rise to an inference of discrimination despite a lapse of time between the two because “immediacy between the cause and effect does not disprove causation”. It also clarified that any rule establishing a certain period of time after which there can be no causality between protected conduct and retaliation is unrealistically simplistic.
This case is important for Nevada employers as it definitively establishes that the Ninth Circuit Court will refuse to discount evidence of retaliatory motivations simply because it is linked to protected activity, such as reporting sexual harassment, that occurred months or years before the alleged retaliation. Thus, such evidence should likewise not be discounted by employers when conducting investigations into alleged retaliation.
Porter v. California Dep’t of Corr., No. 02-16537 (9th Cir. Sept. 10, 2004).