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For an employer to be liable for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), the employee must show the adverse action (the decision to terminate) was made because of the employee’s protected activity (the submission of discrimination complaint).  Employers may prevail against these retaliation claims by showing that the particular individual who made the decision to terminate was not personally aware of the protected activity.  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

An employee claiming that he or she was unlawfully fired in retaliation for filing a discrimination complaint under Title VII must show that the termination was a result of a protected activity, such as a discrimination complaint.  Particularly, “a plaintiff must show: (1) that she engaged in an activity protected under Title VII; (2) she suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action.”  Kidd v. Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013).  To establish the requirement of a causal connection, a plaintiff-employee must show that the relevant decisionmaker was “aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated.” Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712 (11th Cir.2002); Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (finding that an employee-plaintiff must show that the adverse action would not have occurred without the protected complaint)

Because it can sometimes be difficult to determine the motivating cause for a decision-maker’s adverse action, courts may infer that the protected activity caused the adverse action when the adverse action occurs soon after the protected activity.   Bechtel Const. Co. v. Sec’y of Labor, 50 F.3d 926 (11th Cir. 1995) (“Proximity in time is sufficient to raise an inference of causation”).  Courts will permit plaintiffs to demonstrate causation “by showing close temporal proximity between the statutorily protected activity and the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361 (11th Cir. 2007).  “[A]n employee’s termination within days … of his protected activity can be circumstantial evidence of a causal connection between the two.” Jefferson v. Sewon Am., Inc., 891 F.3d 911 (11th Cir. 2018).

While this temporal proximity can be circumstantial evidence of a causal connection, the knowledge of the decision-maker’s protected activity “must be supported by reasonable inferences from the evidence, not mere speculation.”  Clover v. Total System Services, Inc., 176 F.3d 1346 (11th Cir. 1999); see  Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir. 1993) (finding that it was not error to permit a jury to determine whether the decisionmaker knew of a discrimination complaint when the employee aware of the complaint cannot recall if he discussed the discrimination complaint with the decisionmaker).  Courts recognize that merely because some of the corporation’s employees have knowledge of the protected activity does not necessarily the decision-maker has the same knowledge.  Courts therefore do not automatically impute such knowledge to the decision-maker.  Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 800 (11th Cir. 2000) (finding that a corporation’s knowledge of a protected activity does not impute that knowledge to the individual decision-maker).

A recent opinion issued by United States Court of Appeals for the Eleventh Circuit (which is the federal appellate court in charge of federal trial courts in Florida) affirmed that knowledge of protected activity cannot be imputed to an employer who provides evidence that the decision-maker was not aware of the protected complaint.  In Martin, the plaintiff complained of discrimination on the basis of her sex and race, and then she was terminated two days later.  Martin v. Fin. Asset Mgmt. Sys., Inc., 17-14488, 2020 WL 2478868  (11th Cir. May 14, 2020).  The decision-maker who terminated Martin knew that Martin was unhappy with his conduct and that someone had filed a complaint, but the decision-maker claimed that he was not aware that a discrimination complaint had been made by Martin about protected activity.  Additionally, the decision-maker was aware of a prior discrimination complaint made on behalf of Martin 15-months earlier. The human resources employee who received the complaint asserted that she never communicated to the decision-maker that the Martin made a discrimination complaint.

While terminating an employee in such a circumstance might be considered suspicious, Martin held that there was no evidence that the decision-maker was aware of Martin’s discrimination complaint.  Therefore, the appellate court determined that summary judgment had properly been entered in favor of the employer on Martin’s claim of retaliation.  Martin’s presumption that the human resources employee must have told the decision-maker of the complaint could not support a claim of retaliation because there was no evidence of the decision-maker’s knowledge of the complaint.  Martin’s presumption was speculative.  Martin explained that this is not a legitimate factual dispute, but instead a matter of “merely refusing to credit [the plaintiff’s] speculation as evidence.”

Peter Mavrick is a Fort Lauderdale employment lawyer, and also defends businesses in Miami, Boca Raton and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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