“Vengeance and retribution require a long time; it is the rule.”
Charles Dickens, A Tale of Two Cities,
Book 2, Chapter 16
This article addresses how the passage of time affects the burden of proof for claims involving employment retaliation. Human experience confirms that adverse actions may take place years after the motive to retaliate develops.2 Protected activity may never grow stale for those it offends.3 Nevertheless, courts place a far greater emphasis on temporal proximity in retaliation cases than in other discrimination cases.
Courts seem to use temporal proximity evidence as a gatekeeper — either requiring that the adverse action take place soon after the employee’s protected activity, or, if there is a delay, requiring an explanation for why the timing is consistent with a retaliatory motive.4 Courts routinely assume that gaps in time as short as three or four months fail to support the inference of a retaliatory motive.5 The First Circuit has held that a gap of one year is normally inconsistent with a finding of retaliation, unless there is additional, affirmative evidence of lingering retaliatory hostility.6
On the other hand, race discrimination may be proven by circumstantial evidence with no reference to timing. For example, if a Black employee with 10 years’ seniority seeks to prove that her termination was based on race, she may prevail by showing that she was qualified for the position and was replaced by someone with similar qualifications, and that the employer’s explanation for her termination was not the real reason. She need not provide additional evidence of timing, such as showing that the employer was somehow reminded of her race shortly before her termination. This is because we understand that race discrimination is not expressed as a reflexive reaction, but as a cognitive bias that waxes and wanes based on factual circumstances and changes in the decision-maker too.
The de facto focus on timing in retaliation cases seems to rest on the unsupported assumption that employers will forgive or forget whistleblowing in a few months — that retaliatory animus evaporates quickly. Conversely, the courts assume that people who retaliate cannot contain their impulse for revenge and are compelled to act quickly. While courts recognize exceptions to these non-scientific, unsupported notions of retaliatory bias, the exceptions are deemed to be so contrary to ordinary human experience that special evidence is required to explain a substantial delay. These unwarranted assumptions make it more challenging to prove retaliation than other types of discrimination.
For the reasons discussed herein, we should end our peculiar devotion to temporal proximity — a focus that has no parallel in discrimination cases. This unique emphasis causes courts to apply a more restrictive prima facie case to retaliation claims. Worse still, courts apply the fiction of evaporating bias at the summary judgment stage, where no inferences favoring the employer should be considered. This article concludes that retaliation can be proven with the same types of circumstantial evidence that support other types of discrimination cases, and without specific reference to timing. Delayed action should not be viewed, especially at summary judgment, as inconsistent with retaliation. Delayed action is what ordinary retaliation looks like. Retaliation is a dish that has been, and will continue to be, served sometimes hot and sometimes very, very cold.
I. Anti-Retaliation Laws Do Not Require Focus On Temporal Proximity
It is illogical to impose a focus on temporal proximity in retaliation cases when such focus is not applied to discrimination cases. Discrimination and retaliation laws are parallel, with interconnected prohibitions, and neither set of laws contains any statutory “timing” requirement.
Federal and state statutes prohibit discrimination based on protected status, such as race, gender, age, religion and handicap.7 The same laws prohibit retaliation for voicing complaints about discrimination based on protected status.8 Those engaging in protected conduct are as protected as those targeted for their race or gender.9 Employees who pursue retaliation claims use the same procedures, are subject to the same standards, and have access to the same remedies as those who pursue discrimination claims.10 Even the purposes of anti-discrimination and anti-retaliation laws are bound together, as the prohibition against retaliation is essential to the ultimate goal of ending discrimination.11
However, retaliation is not just like discrimination — it is discrimination. Civil rights statutes do not use the word “retaliation,” and instead use variations of the word “discriminate” to define retaliatory misconduct.12 For example, the Title VII anti-retaliation provision makes it unlawful “for an employer to discriminate against any of his employees . . . because he has opposed [an unlawful practice].”13 Likewise, Massachusetts law uses the term “discriminate” to describe retaliation for opposing protected activity.14 The word “retaliation” is used as shorthand by courts and litigants (and the author of this article), since the statutes do not use the word.15
Supreme Court cases confirm that retaliation is not just related to discrimination, but is discrimination.16 The court interprets statutory provisions prohibiting race and gender discrimination as including prohibitions against retaliation, because, for example, retaliation against an employee for complaining about sex discrimination means the complainant is being victimized on the basis of sex.17 “Retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.”18 Thus, discrimination and retaliation are a co-mingled and overlapping set of ideas.
Nothing in the parallel anti-retaliation or anti-discrimination laws refers to a temporal proximity requirement. There is no reason courts should direct their focus on timing for one more than the other.
II. The Rules Of Evidence Do Not Permit A Mandatory Focus On Temporal Proximity
The rules of evidence do not support the exaggerated focus on timing that we see in retaliation cases. Properly understood, timing issues are equally relevant to discrimination cases as they are to retaliation. A discrimination case can hinge upon the date of notice to an employer of an employee’s race or gender. Yet, and despite the relevance of timing to both kinds of claims, courts are much more concerned about timing in retaliation cases.19
The burden on plaintiffs in both retaliation and discrimination cases is to show that the adverse action would not have occurred but for the unlawful bias.20 The rules of evidence governing proof of causation for both types of claims are the same.
One way to prove causation in retaliation — but not the only way21 — is to show a close temporal proximity between the protected activity and the adverse action.22 It is important to remember that a short gap is a type of circumstantial evidence of causation — not an element of a retaliation claim.23 As stated above, many courts have found that retaliation occurred after a long delay. Supra fn.2.
Under the analysis that has developed, where adverse employment actions follow closely on the heels of protected activity, a causal relationship may be inferred. Mole v. Univ. of Mass., 442 Mass. 582, 595 (2004). As the time between the two events increases, courts seem to believe that the inference weakens and ultimately evaporates. Id. at 595.24 When there is a substantial delay, courts do not simply ignore the lack of affirmative evidence of causation; rather, they tend to require an explanation of how the delay is consistent with retaliation.25
A review of case law26 shows that courts almost always focus on timing issues in retaliation cases — either to determine if there was a short gap, or to scrutinize the record for an explanation of the delay.27 The tendency to overvalue this type of evidence is statutorily unnecessary, creates the risk of distorting the proper understanding of the elements of such claims, and has the effect of delegitimizing otherwise probative evidence.
An overemphasis on timing allows employers to game the system. For example, one business-side article suggests that employers simply delay intended terminations to hide the actual timing of their decision-making.
[I]f you have an employee who engaged in protected activity close in time to a possible termination, you . . . may decide to move forward with the termination anyway, but you will at least understand that the timing of the termination makes it more risky for the company and you will have the opportunity to minimize risk to the company. Or, you may decide to move the termination to a later date.
“Top Five Termination Mistakes,” June 8, 2018, www.magmutual.com/learning/article/top-five-termination-mistakes/ (emphasis added). It is also possible that an employer could hasten its efforts to fire an employee to avoid the appearance of retaliation.28
The courts’ single-minded focus should be rejected, just like other occasions where judges have erroneously imposed requirements for certain types of evidence in discrimination cases. For example, when some courts began to suggest that comparator evidence would be required in all discrimination cases, that notion was quickly rejected.29 Likewise, the Supreme Court has stated that evidence of pretext may take many forms, and a plaintiff is not restricted to proving pretext in a particular way. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (District Court erred by instructing the jury that the plaintiff needed not show that her replacement was less qualified). This type of correction is long overdue with respect to timing evidence, because other types of evidence are just as probative of a retaliatory motive, if not more so.30
Courts acknowledge that, like discrimination, retaliation may be established using different types of circumstantial evidence.31 No single type of evidence is required. “Temporal proximity is but one method of proving retaliation.”32 There is no reason to overemphasize temporal proximity, an optional and unnecessary type of evidence, in retaliation cases.
III. The Unmerited Focus On Temporal Proximity Has Distorted The Burden Of Proof In Retaliation Cases
As will be shown below, courts routinely impose a prima facie standard for retaliation claims, and focus on temporal proximity in a manner different from, and stricter than, their treatment of discrimination claims. This article will briefly discuss the types of evidence that support discrimination cases, in contrast to the evidence courts require in retaliation cases.
A. Circumstantial Evidence Supporting Discrimination Cases
Discrimination may be proved by direct or circumstantial evidence.33 The McDonnell Douglas framework, a common method for evaluating the sufficiency of circumstantial evidence in discrimination cases,34 requires that the plaintiff produce evidence of a prima facie case and pretext.35
The prima facie burden is often expressed as a four-pronged test involving a flexible set of proofs that may be tailored to the facts of the case.36 The first three steps can be satisfied if the plaintiff produces evidence showing that: (1) that the plaintiff was in a protected class; (2) the plaintiff was qualified for the job; and (3) the plaintiff was rejected. Id. The fourth element, which is generally designated as evidence giving “rise to an inference of unlawful discrimination,” is, as a practical matter, usually described with easy-to-meet criteria — e.g., the position remained open and the employer sought applicants with qualifications similar to those of the plaintiff, or the plaintiff was replaced.37 (Some jurisdictions accept an even lighter burden of proof at the prima facie stage).38
The prima facie case raises an inference of discrimination by eliminating the most common non-discriminatory reasons for the employer rejecting the plaintiff: (1) the plaintiff lacking the required qualifications, and (2) job elimination.39 This initial burden is not onerous, and must not be equated with the ultimate burden of proof for demonstrating discrimination.40
After establishing a prima facie case, the employer provides evidence of its asserted legitimate business reason for the adverse action, after which the plaintiff may establish an inference of unlawful discrimination by showing that the employer’s asserted reason was pretextual.41 For example, it would be pretextual for an employer to fire an employee for matters it knew were not within the employee’s authority or control.42 Pretext evidence is sufficient to raise an inference of discrimination, even though it does not specifically address the presence of discriminatory bias.43 Nor is there a requirement for discrimination plaintiffs to prove they were subjected to an adverse action shortly after the employer learned of their protected status, such as race or gender. A discriminator is not assumed to act on a hair trigger. Plaintiffs can prove their cases indirectly, based on proof that they were qualified and replaced, and the employer’s justification for the adverse action was not the actual reason. This is so even if they have been with the employer for a period of years.
B. Circumstantial Evidence Supporting Retaliation Cases
The McDonnell Douglas burden-shifting approach can also be used to establish retaliation.44 Under a modified McDonnell Douglas approach for retaliation cases, plaintiffs can establish a prima facie case by showing that: (1) they engaged in protected activity; (2) they were thereafter subjected to an adverse action; and (3) a causal connection exists between their protected activity and the adverse action.45 Retaliation decisions describe the prima facie burden as “not onerous” or “de minimis.”46
However, the different descriptions of the prima facie case imply a harsher burden for retaliation claims. For discrimination, the prima facie case is not meant to track the plaintiff’s ultimate burden, and is satisfied with proof of qualification and replacement. Replacement and qualification evidence is deemed supportive of a discrimination case because it tends to eliminate from consideration common justifications for termination: job elimination and incompetence.47 Even beyond replacement evidence, courts construing discrimination claims have recognized a wide range of non-onerous, circumstantial evidence that satisfies the fourth element.48
In contrast, the prima facie burden for retaliation claims is frequently described in terms that directly track the ultimate burden: establishing a causal connection between protected activity and an adverse action. Che, 342 F.3d at 38; Mesnick, 950 F.2d at 827; Mole, 442 Mass. at 591-92.49
For the most part, courts do not focus on replacement or qualification evidence when describing a retaliation prima facie case. If replacement and qualification evidence is helpful and relevant in discrimination cases as tending to eliminate common, non-discriminatory reasons for adverse actions, why are they not equally helpful in retaliation cases? In contrast to the wide range of evidence that satisfies the fourth element in discrimination cases, retaliation cases tend to focus solely on temporal proximity at the prima facie stage.50
Assuming a retaliation plaintiff satisfies the prima facie burden, the plaintiff can prevail by demonstrating that the employer’s explanation for its adverse action is pretextual — same as in the discrimination context.51 Neither discrimination nor retaliation cases require direct evidence, nor do they necessarily require additional evidence after establishing pretext.52 However, temporal proximity is again often considered at this stage,53 even though, if anything, pretext evidence is more probative in retaliation cases than discrimination cases.54
While courts seem united in their adoption of a McDonnell Douglas approach to both discrimination and retaliation claims, their application of the method is asymmetrical and reflects an improper, ubiquitous focus on temporal proximity in retaliation cases. Plaintiffs’ attorneys are encouraged to fight this by supporting their retaliation prima facie cases with qualification evidence, replacement evidence and other types of evidence, just as they do in discrimination claims, and emphasizing that the prima facie case is a flexible set of proofs that do not depend upon temporal proximity.
IV. Delayed Retaliation Is As Consistent With Human Nature As Rapid Retaliation
Many of the decisions cited above consider retaliation cases at the summary judgment stage, where all reasonable inferences should favor the non-moving party, and none should favor the moving party. Although close timing can play an important role in some cases,55 the absence of close timing should not result in an inference favoring the employer in Rule 56 proceedings.
A review of the cases, and the courts’ frequent focus on timing in retaliation cases, creates the concern that courts are drawing inferences in favor of employers when an adverse action does not closely follow protected activity.56 For this reason, we must discuss the nature of retaliation and demonstrate why delayed retaliation is as consistent with human nature as swift retaliation. As will be shown, the psychological basis for delayed retaliation can run much deeper than the desire to not get caught.
A retaliatory mindset is just like other types of cognitive bias, which manifest in specific situations and which may take time to develop.57 For example, the “glass ceiling” reflects a type of discrimination that occurs over time. An employer may be enthusiastic about hiring women in subordinate positions, but may decline to promote them into more prestigious or traditionally male-dominated positions after they have developed seniority and expertise.58 Thus, we easily understand that glass ceiling discrimination takes place long after the employee’s gender is revealed. Likewise, an employer may continue to retain a whistleblower in a lower-level position, but be unwilling to promote him/her into a management position years later. There is no reason why delay should be a neutral, understood aspect to a gender discrimination case, but a reason for skepticism in a retaliation case.
Just like a racial or sexual stereotype, retaliatory bias allows a tired mind to take shortcuts that disfavor the protected employee in specific circumstances.59 It means that someone who has complained will not be given the benefit of the doubt when another controversy arises, or be subject to increased scrutiny.60 It means that over time, subtle disadvantages may add up, and finally lead to a tangible, adverse action.61 A final adverse action may be preceded by any number of decisions and judgments by various actors that are compounded, and within any one of those stages, a retaliatory mindset can affect the ultimate outcome.62
Retaliatory feelings may be subjectively experienced by the wrongdoer as a benign desire to protect the employer or to return harmony to the workplace.63 The stain of retaliatory bias — feelings of resentment, embarrassment, or fear for one’s reputation or career based on being the subject of a complaint — undoubtedly affects the wrongdoer’s mental process, the effects of which accumulate over time.64
A retaliatory act is not necessarily an impulsive one. Biases can exist for extended periods of time, even among well-meaning individuals. For example, assume a lawyer, who becomes a judge, is assigned a case in which the plaintiff was previously a client from two years before. Obviously, the judge should recuse, because the judge would undoubtedly have some bias with respect to the former client.65 We demand recusal in this situation based on accepted notions of human nature. It should not come as a surprise, then, that after an employee reports sexual harassment, an employer’s retaliatory sentiment could persist for an extended period of time.
We must no longer accept the misguided notion that those who retaliate are so out of control that they cannot delay their effort to rid the workplace of a whistleblower. Frequently, the retaliator is not even the person about whom the complaint was made. Just as a judge should not preside over proceedings involving a former client, so too should we recognize that employers have the potential for lingering biases. Extraordinary evidence of temporal proximity should not be required to prove employer bias similar to that which we presume applies to all judges.
Many cases demonstrate that retaliation may take place years after protected activity.66 In one case, the Massachusetts Commission Against Discrimination held that the evidence showed “a decades-long struggle between Complainant and [Respondent] over allegations of gender discrimination,” and rejected the employer’s contention that it had long forgotten those disputes.67 Let’s not acknowledge that institutional memory exists, but then refuse to apply the concept to discrimination.
Even in criminal law, which requires proof beyond a reasonable doubt, prosecutors prove cases based on motives that originated years earlier. Prosecutors are not limited to motive evidence relating only recent events; to do so would require the release of many murderers and other wrongdoers. For example, in Commonwealth v. Henderson, 486 Mass. 296 (2020), the jury convicted the defendant of first-degree murder. The motive, according to the prosecutor, was the defendant’s anger toward the victim for having “snitched” to law enforcement two years before the murder. Id. at 297. The court held that the motive evidence was admissible, even in the absence of a limiting instruction. Id. at 306-307. In criminal law, it is perfectly reasonable to infer, beyond a reasonable doubt, that a defendant may be motivated to take retaliatory action based on conduct occurring years before.68 Likewise, it should be accepted that employers may wait years to retaliate, particularly in civil cases where the burden of proof is more lenient.
Social science recognizes that long-term workplace animosities can lead to delayed retaliation. Conflict in the workplace “can generate a range of powerful negative emotions that can in turn fester into an on-going legacy of animosity, dislike, anger and even hatred.”69 Where an employee believes a co-worker or subordinate committed a “transgression” or “betrayal,” the resulting anger can “persist and fester,” and, in time, turn into a “grudge.” Id. at 41-42.
Grudges “provide the fodder for revenge motivation.” Id. at 43. The more an individual thinks about a transgression, the more the individual may perceive a benefit to no longer working with the employee, leading to “long-term” problems. Id. at 42. In other words, the passage of time can increase retaliatory bias, not reduce or eliminate it.70 Id.
By obsessively thinking about the event, dwelling on the injury, and re-experiencing the intense emotions evoked, revenge motivation fuels thoughts and plans for retaliation. At the extreme, there can be a sense of towering indignation or self-righteous rage motivating a desire for vengeance and harm to the offender. Id. at 42.
Grudges gain long life not only through obsessive ruminations, but by providing a psychological benefit to the one holding the grudge. Id. at 42. Those with a grudge may retain a sense of control and potency that develops, in part, from the perception of upholding certain principles or standards. Id. at 42. Retaliation, although negative in nature, creates the perceived benefit of intimidating others who might consider committing a similar transgression. Grudges can run particularly deeply when individuals feel they are part of a group under attack. Id. at 42-43 (“strong in-group identification was negatively associated with forgiveness”). Finally, delayed retaliation can be experienced by the retaliator as “sweeter” than immediate retaliatory action. The psychological benefits of grudges cannot be ignored when examining how the passage of time affects retaliation claims.
There is a cottage industry trying to ascertain the best methods for dissipating workplace grudges, which would be unnecessary if retaliatory animus simply evaporated after a few months. Id. at 43-51. Psychology confirms that which the cases demonstrate: that retaliatory impulses often do not soften, but rather manifest into action after delay.
Management can perceive protected activity, such as reporting workplace discrimination or harassment, as disloyal.71 Because protected reports of harassment and discrimination are precisely the types of “transgressions” that can trigger lingering grudges and delayed reprisals, it is unreasonable to assume that retaliation must be swift.
The expectation of prompt retaliation may, in part, be rooted in the outdated notion of a traditional workplace, where an emotional manager, driven by impulse, can simply terminate an employee. The contemporary workplace is a creature of Equal Employment Opportunity trainings, personnel procedures, progressive discipline, documented evaluations, oversight, group decision-making, and human resources oversight.72 Thus, we no longer work in environments where rapid reprisals are always the case, or even the norm.
When evaluating a summary judgment motion, a significant gap in time between the protected activity and adverse action should not be viewed as making retaliation less likely. Delayed action is exactly what unlawful retaliation looks like — it is consistent with retaliatory bias. At worst, delay should be seen as a neutral factor without a negative inference.73 On the other hand, delay should be seen as affirmative evidence of retaliation where it dovetails with a narrative supporting the claim.74 At the summary judgment stage, courts should avoid the impulse to consider delay a weakness in the plaintiff’s case.75
V. A Path Forward: The Verdrager Case
A pair of Massachusetts decisions highlight the continuing problems with timing evidence, and point to their solution. As stated above, the prima facie case is generally considered as a four-part burden of production, for example, to show that the plaintiff was (1) protected by law; (2) qualified for the position; (3) terminated; and (4) replaced.
In the first decision, the Massachusetts Supreme Judicial Court (SJC) modified the prima facie discrimination cases to require only the first three elements, eliminating the fourth prong, which has generally been described as evidence giving “rise to an inference of unlawful discrimination.” Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 (2016). This development may be based on the presumption that after an acceptably performing plaintiff is terminated, the employer will act to replace the plaintiff with a similarly qualified individual.76 Furthermore, employers who claim an employee was terminated due to job elimination may assert that justification at the second stage of the burden-shifting framework. Thus, not much is lost by the change.
The second decision, Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 382 (2016), provides an excellent comparison of differences in treatment of prima facie cases of discrimination and retaliation. Verdrager was an associate attorney in a Boston law firm, who reported, in the summer of 2004, that her supervisor was sexually harassing her. Id. at 386. In October 2004, the supervisor asked a client to submit her criticisms of Verdrager in writing, and provided a negative evaluation of Verdrager’s performance. Id. at 387. In September 2005, a managing attorney blamed Verdrager’s pregnancy on her honeymoon and discussed reducing her schedule. Id. at 389. During Verdrager’s pregnancy, employees questioned her commitment to her job, Id. at 400, and criticized her for being unavailable, while a male associate was unavailable without consequence. Id. at 398-99. When Verdrager took medical leave, her manager interviewed her neighbors to determine whether her at-home conduct was consistent with the medical conditions she reported. Id. at 389. In February 2007, after a lackluster evaluation, Verdrager was told that her salary was being reduced and her seniority “stepped back” two years. Id. at 391.
Verdrager filed suit, alleging that the step back was both gender discrimination and retaliation. The trial judge granted summary judgment on both claims. The retaliation case was dismissed with a primary focus on timing — because there was allegedly no evidence that the job action was “designed to retaliate against [Verdrager] for her complaints over a year earlier with regard to [the supervisor].” Id. at 394-95.
On appeal, with respect to the discrimination claim, the SJC described the prima facie burden in accordance with the three-step approach, requiring the plaintiff to show that she was (1) in a protected class; (2) performing acceptably; and (3) subject to an adverse action. Id. at 396-97, representing the standard set of proofs, which required the defendant to respond by articulating its reasons for the adverse actions. Id.
With respect to the retaliation claim for the “step back,” the SJC described the prima facie burden as: (1) the plaintiff was in the protected class; (2) she suffered an adverse action; and (3) there is a causal connection between the protected conduct and adverse action, Id. at 406-407, mirroring the ultimate burden of proof in retaliation cases.
Despite these side-by-side recitations of prima facie requirements, there is no explanation for why one count focused on specific, readily available evidence, like acceptable performance, and the other substituted the plaintiff’s ultimate burden of proof as an essential element of her prima facie case.
The way to resolve this unfortunate asymmetry is by applying to retaliation claims the prima facie burden used for discrimination claims: protected class; qualification; and adverse action. Jurisdictions that use the four-step prima facie burden for discrimination cases should apply the same approach to retaliation claims: protected class; qualification; adverse action; and replacement. The burden of proving pretext should also apply to both discrimination and retaliation claims, equally. The same types of evidence should suffice to satisfy the burdens of these parallel claims — retaliation is discrimination.
Retaliation often takes place over a substantial period of time. Retaliatory bias is like any other type of cognitive bias, which may manifest only in certain conditions, and may fester, or even increase, over time. The gatekeeper role that some courts have applied to temporal evidence in retaliation cases, but not in discrimination cases, should be eliminated. When evaluating the sufficiency of evidence of retaliation, the mere passage of time tells us nothing — delayed retaliation is typical retaliation. We should adopt prima facie discrimination standards to retaliation claims, allowing plaintiffs the ability to prove retaliation based on qualification, replacement and pretext evidence. If we do so, proximate timing will not be seen as a presumptive requirement in retaliation cases, and there will be no need to justify its absence. Retaliation cases have been placed at a disadvantage as compared to other discrimination cases. The misguided notion that retaliation occurs immediately and that unlawful bias simply evaporates must be eradicated.
Robert S. Mantell is a partner with Powers, Jodoin, Margolis & Mantell LLP in Boston. Mantell’s practice focuses on plaintiff-side employment law litigation.
*1. The author wishes to express his appreciation to Caryn Groedel, Esq., for her help in the preparation of this article.
2. E.g., Tryon v. MBTA, 98 Mass. App. 673 (2020) (employee fired in retaliation for a report of overtime fraud occurring more than nine years earlier); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 382, 407 (2016) (gap of two and a half years does not preclude finding of retaliation); Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., 671 F.3d 49, 56-57 (1st Cir. 2012) (retaliation occurred five years after protected activity); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 n.6 (7th Cir. 1996) (jury could find that employer “waited in the weeds” for 10 years before retaliating); George v. Youngstown State Univ., 966 F.3d 446, 459-61 (6th Cir. 2020) (retaliation possible after a nine-year interval); Gee v. Principi, 289 F.3d 342, 347 n.3 (5th Cir. 2002) (two-year gap between protected activity and retaliation acceptable for retaliation claim); Monteiro v. Cambridge, Memorandum of Decision and Order on the Defendant’s Motion for Judgment Notwithstanding the Verdict, C.A. No. 01-2737, Middlesex, ss., MacLeod-Mancuso, J., April 24, 2009, at 7-8, aff’d on other grounds, 2011 Mass. App. Unpub. LEXIS 965 (retaliation found despite five-year gap between filing MCAD charge and termination); Coates v. Dalton, 927 F. Supp. 169, 170-71 (E.D. Pa. 1996) (finding of retaliation proper despite four-year gap).
3. Edwards v. Commonwealth, 2021 Mass. Lexis 581, at 28-29 (employee could reasonably be found to have been terminated for conduct occurring six years in the past, as evidenced by the decision-maker’s admissions, even though the decision-maker learned of the protected activity years after the protected act occurred).
4. E.g., Dias v. Verizon New Eng. Inc., 566 Fed. App’x 1, 5 (1st Cir. 2014).
5. See Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (“Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity”); Holloway v. Thompson Island Outward Bound Educ. Ctr., Inc., 492 F. Supp. 2d 20, 25-26 (D. Mass. 2007); Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004) (“By itself, the three month period . . . does not allow a reasonable inference of a causal relation between the protected expression and the adverse action”).
6. Hernández v. Wilkinson, 986 F.3d 98, 103 (1st Cir. 2021); O’Rourke v. Tiffany & Co., 988 F.3d 23, 25-26 (1st Cir. 2021).
7. G.L. c. 151B, § 4(1), 4(16); 42 U.S.C. § 2000e-2(a)(1) (Title VII); 29 U.S.C. § 623(a)(1) (Age Discrimination in Employment Act); 42 U.S.C. § 12112 (Americans with Disabilities Act).
8. G.L. c. 151B, § 4(4); 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a), (b) (ADA).
9. Title VII contains a special provision that allows plaintiffs to prevail even when race, sex or another protected class was not a determinative factor in the adverse employment action. 42 U.S.C. § 2000e-2(m). This “motivating factor” standard is not applicable to Title VII retaliation cases arising under § 2000e-3(a). University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 352 (2013). However, this article does not address the “motivating factor” analysis, and instead compares the Title VII retaliation provision to 42 U.S.C. § 2000e-2(a)(1), which remains a valid, alternative method of proving discrimination using the “but-for” standard. Bostock v. Clayton County, ___ U.S. ___, 140 S. Ct. 1731, 1740 (2020). Thus, the statutory differences between dis-crimination under Title VII do not support the differences in how courts analyze retaliation claims.
10. G.L. c. 151B, §§ 4(1), 4(4), 5, 9; 42 U.S.C. § 2000e-2(a)(1), 3(a); 29 U.S.C. § 623(a)-(d).
11. See Jackson v. Birmingham Board of Education, 544 U.S. 167, 180 (2005) (the failure to prohibit retaliation would result in more prevalent discrimination); Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (retaliation provision protects employee’s “unfettered access” to remedial mechanisms to oppose discrimination).
12. 42 U.S.C. § 12203(a) (ADA); 29 U.S.C. § 623(d) (ADEA); G.L. c. 151B, § 4(4).
13. 42 U.S.C. 2000e-3(a) (emphasis added).
14. G.L. c. 151B § 4(4).
15. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 383, 405 n.33 (2016).
16. Nassar, 570 U.S. at 348, 353; Burlington Northern, 548 U.S. at 63; see also DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008).
17. Gomez-Perez v. Potter, 553 U.S. 474, 481 (2008) (ADEA prohibition against “discrimination based on age” in the federal employment sector encompasses a prohibition against retaliation for opposing age discrimination); CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) (42 U.S.C. § 1981 prohibition against race discrimination embraces a claim for retaliation for reporting race discrimination); Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969) (42 U.S.C. § 1982, which prohibits race discrimination in land conveyance, embraces a claim for retaliation for opposing race discrimination).
18. Jackson, 544 U.S. at 173-174, 178-79 (Title IX).
19. Temporal proximity is often the first or primary circumstance considered in retaliation cases, while it very rarely is a central focus in discrimination cases.
20. Bostock, 140 S. Ct. at 1739 (discrimination); Nassar, 570 U.S. at 352 (retaliation).
21. Many types of circumstantial evidence can demonstrate retaliation. Mesnick v. Gen. Elec. Co., 950 F.2d 815, 828 (1st Cir. 1991). Temporal proximity is but one. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 382, 407 (2016); Che v. MBTA, 342 F.3d 31, 38 (1st Cir. 2003); Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir. 2014).
22. Hodgens v. General Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998) (“close temporal proximity between two events may give rise to an inference of causal connection.”); Ritchie v. Dept. of State Police, 60 Mass. App. 655, 666 (2004) (“Close temporal proximity between the protected activity and the adverse employment action permits an inference of the causal nexus necessary for a finding of retaliation”).
23. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3rd Cir. 1997). A short gap does not require a finding of retaliation where the evidence reflects that lawful reasons motivated the adverse action. MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996).
24. Some courts have observed that an adverse action initiated prior to an employer becoming aware of protected activity cannot be considered retaliatory, even if the adverse action is completed after the employer becomes aware of the activity. See Mole, 442 Mass. at 594-95 (hostility between co-workers predated the plaintiff’s filing of an MCAD charge); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).
25. Dias, 566 Fed. App’x at 5.
26. E.g., Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004); Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013); Porter v. Cal. Dept. of Corr., 383 F.3d 1018, 1030 (9th Cir. 2004); Ford v. GMC, 305 F.3d 545, 554-55 (6th Cir. 2002); Bakhtiar v. Infineon Techs. Ams. Corp., 2019 Mass. Super. Lexis 73, at 17-19; Tryon v. MBTA, 98 Mass. App. Ct. 673 (2020).
27. Explanations for delay include the fact that the employer seized upon its first opportunity to retaliate, Price, 380 F.3d at 213; the plaintiff engaged in a series of protected activities that continued over time, Amirault v. City of Malden, 335 F. Supp. 3d 111, 122 (D. Mass. 2018); ongoing retaliatory harassment or animosity forms a bridge between the protected activity and the final adverse employment action, Mogilevsky v. Wellbridge Club Mgt., 905 F. Supp. 2d 405, 413 (D. Mass. 2012); or an employer’s tactical decision to delay the adverse action until another factor is resolved or a replacement employee is hired. Velazquez-Garcia v. Horizon Lines of P.R., Inc., 473 F.3d 11, 19-20 (1st Cir. 2007).
28. Wagner v. Baystate Health, Inc., 2015 Mass. App. Unpub. LEXIS 1005, at 7.
29. For some time, case law suggested plaintiffs must produce comparator evidence in all discrimination cases. However, courts ultimately rejected this exaggerated reliance on a specific type of circumstantial evidence. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146 (2000) (Court of Appeals erred in assuming that preferential treatment of younger people is required to prove age discrimination); Franchina v. City of Providence, 881 F.3d 32, 52-53 (1st Cir. 2018); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005); Avci v. Brennan, 285 F. Supp. 3d 437, 441-42 (D. Mass. 2018).
30. “Even when the time between the protected activity and the adverse action is lengthy, other evidence of retaliatory motive may establish the causal link.” Equal Employment Opportunity Commission Enforcement Guidance on Retaliation and Related Issues, section II(C)(3), www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.
31. Baines v. Walgreen Co., 863 F.3d 656, 661-62 (7th Cir. 2017).
32. Che, 342 F.3d at 38.
33. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003).
34. The McDonnell Douglas test is not the only way for plaintiffs to prove discrimination. Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009).
35. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Reeves, 530 U.S. at 146-47; Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001).
36. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 n.6 (1981).
37. Id. at 253 n.6; McDonnell, 411 U.S. at 802.
38. As discussed below, Massachusetts courts have transitioned to a three-step formulation that eliminates the fourth element of the prima facie burden. Verdrager v. Mintz, Levin, 474 Mass. 382, 396-97 (2016); Bulwer v. Mount Auburn Hospital, 473 Mass. 672, 681-82 (2016).
39. Burdine, 450 U.S. at 254.
40. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); Burdine, 450 U.S. at 254 & n.7; Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34, 45 (2005).
41. Thomas v. Eastman Kodak Co., 183 F.3d 38, 57-58 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000); Lipchitz, 434 Mass. at 500-501.
42. Reeves, 530 U.S. at 144-46, 149.
43. Reeves, 530 U.S., at 144-147; Thomas, 183 F.3d at 57-58 (rejecting the District Court’s requirement that, in order to survive summary judgment, a plaintiff must allege “at least one piece of evidence that explicitly referred to the plaintiff’s membership in a protected class”); Verdrager, 474 Mass. at 397 (evidence of pretext proves discrimination, “even if that evidence does not show directly that the true reasons were, in fact, discriminatory”); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000).
44. Che v. MBTA, 342 F.3d 31, 38 (1st Cir. 2003); Verdrager, 474 Mass. at 406.
45. Che, 342 F.3d at 38 (1st Cir. 2003); Verdrager, 474 Mass. at 406.
46. Che, 342 F.3d at 38; DeCaire, 530 F.3d 1, 19 (1st Cir. 2008); Treglia v. Manlius, 313 F.3d 713, 719 (2nd Cir. 2002).
47. See Burdine, 450 U.S. at 253-54.
48. Yee, 481 Mass. at 294 (disparate treatment of similarly situated comparators); Marin-Piazza v. Aponte-Roque, 873 F.2d 432, 434 (1st Cir. 1989) (decision-makers were outside protected class); Knight v. Avon Prods., 438 Mass. 413, 426 n.9 (2003) (others in protected class were terminated at the same time); Martins v. Univ. of Mass. Med. Sch., 75 Mass. App. Ct. 623, 629 (2009) (discriminatory statements).
49. Some cases de-emphasize the requirement by explaining that, for purposes of the prima facie case, a plaintiff need not show that retaliation was a “but for” cause of termination. Meschino v. Frazier Indus. Co., 2016 U.S. Dist. Lexis 100363 (D. Mass. 2016), at 20 (“under Massachusetts law, Meschino need only show some causal connection between the protected activity and his termination. A ‘but for’ showing is not required”). For purposes of the prima facie case, the plaintiff need only show that the protected conduct played a substantial or motivating part in the adverse decision. Fournier v. Mass., 2021 U.S. App. Lexis 27676 (1st Cir.), at 7-8.
50. See, e.g., Treglia, 313 F.3d at 720 (with respect to final stage of the retaliation prima facie case, “[w]e have held that a close temporal relationship between a plaintiff’s participation in protected activity and an employer’s adverse actions can be sufficient to establish causation”). The case of Carnakie-Brown v. Santander Bank, N.A., 2021 Mass. App. Unpub. LEXIS 272, at 8, is a rare example of a decision that considers qualification during a retaliation prima facie case. However, even this rare decision is not a true exception, as the evidence of qualification is paired with evidence of close timing. Id. (“the bank fired her six weeks after she filed her complaint, at a time when a reasonable jury could find that she had turned the Holbrook branch around and was performing her job satisfactorily”).
51. Che, 342 F.3d at 39; Kelley v. Corr. Med. Services, 707 F.3d 108, 115-16 (1st Cir. 2013); Verdrager, 474 Mass. at 406. The evidence used to satisfy the prima facie case may be reused to demonstrate pretext. See, e.g., Che, 342 F.3d at 39; Verdrager, 474 Mass. at 408 (pattern of retaliatory conduct beginning soon after internal complaint, which established prima facie case, also established pretext).
52. DeCaire, 530 F.3d at 20.
53. Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 24 (1st Cir. 2010) (timing evidence considered at pretext stage); Joyce v. Upper Crust, LLC, 2015 U.S. Dist. LEXIS 95542 (D. Mass), at 18-19 (same).
54. Pretext is even more probative in retaliation than discrimination cases, given that the employer often becomes aware of the plaintiff’s protected complaints much more recently than they learn of the plaintiff’s race or sex. Why, then, would pretext evidence be less valuable to retaliation cases than discrimination? The same pretext evidence can provide an inference of unlawful motive, in various types of cases. Roy v. Correct Care Solutions, LLC, 2019 U.S. App. LEXIS 2795 (1st Cir.), at 39 (same evidence of pretext may support either a sexual harassment retaliation claim or an alternative, unrelated whistleblowing claim). Therefore, pretext along with a prima facie case should be sufficient to prove retaliation, even in the absence of close timing.
55. Pardo v. General Hosp. Corp., 446 Mass. 1, 20 (2006) (a “nearness-in-time” jury instruction might be mandatory, if properly requested).
56. Hernández, 986 F.3d at 103; O’Rourke, 988 F.3d at 25-26.
57. “Indeed, it is unlikely today that an actor would explicitly discriminate under all conditions; it is much more likely that, where discrimination occurs, it does so in the context of more nuanced decisions that can be explained based upon reasons other than illicit bias, which, though perhaps implicit, is no less intentional. While a company may generally seek to hire women, it may also unfairly deny women positions once they become pregnant. While a school may affirmatively recruit minority students, the race of a student may simultaneously lead to harsher scrutiny when the individual has a disciplinary record. And while a lender may generally grant loans to African-American applicants, it may also view African-American borrowers as less creditworthy and more challenging risks than similarly situated white borrowers under some conditions.” Woods v. City of Greensboro, 855 F.3d 639, 651-52 (4th Cir. 2017), cert. denied sub nom. City of Greensboro, N.C. v. BNT Ad Agency, LLC, ___ U.S. ___, 138 S. Ct. 558 (2017).
58. See Joan C. Williams & Nancy Segal, “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” 26 HARV. WOMEN’S L.J. 77, 93 (2003).
59. Studies show that discrimination occurs when decisions are difficult and valid criteria are factors in the decision-making. Melissa Hart, “Subjective Decision Making and Unconscious Discrimination,” 56 ALA. L. REV. 741, 748, 760-61 (2005).
60. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 685 (2016) (white and Asian interns were given the chance to remediate and correct issues, while Black intern was not).
61. See Jessica Nordell, “How a Tiny Bit of Gender Bias Adds Up to Hurt Women’s Careers,” www.nytimes.com/interactive/2021/10/14/opinion/gender-bias.html.
62. Also, wrongdoers can intentionally wait for the right opportunity to maximize harm or conceal their role in the wrongdoing. “Delay in vengeance delivers a heavier blow.” John Ford.
63. A retaliatory motive stems from the desire to rid the workplace of employees who engage in protected activity. Sauer v. Belfor USA Grp., Inc., 205 F. Supp. 3d 209, 215 (D. Mass. 2016).
64. Nassar, 570 U.S. at 344-45 (retaliation based in part on the “public humiliation” caused by a discrimination complaint and the desire to “publicly exonerate” the alleged perpetrator).
65. Committee on Codes of Conduct Advisory Opinion 24: Financial Settlement and Disqualification on Resignation From Law Firm, Guide to Judicial Policy, Vol. 2B, Ch. 2 (Judges should not sit on cases where a member of their former law firm is acting as counsel for at least two years, and longer depending on the circumstances); www.uscourts.gov/sites/default/files/guide-vol02b-ch02-2019_final.pdf.
66. Supra fn. 2.
67. MCAD & Dalrymple v. Winthrop, 2014 Mass. Comm. Discrim. LEXIS 2, at 49.
68. See also Mendenhall v. State, 963 N.E.2d 553 (2012) (son assaulted lawyer for suing his father 26 years before).
69. “Clardy, Injury, Grudges, and Restoration: Forgiveness and Relationship Repair at the Workplace,” 1 INTL. JOUR. OF RESEARCH IN BUSINESS AND MANAGEMENT, Vol. 2, at 39 (Nov. 2019), available at http://ijrbmnet.com/uploades/volumes/1595587123.pdf.
70. See Cachopa v. Stoughton, 72 Mass. App. 657, 662 (2008) (retaliator tried and failed to retaliate over the years, which led to the retaliator’s “increasing frustration, followed by escalation”).
71. See DeCaire, 530 F.3d at 21.
72. See Sandra F. Sperino, “A Modern Theory of Direct Corporate Liability for Title VII,” 61 ALA. L. REV. 773, 787-88 (2010); McGuire v. City of Springfield, 280 F.3d 794, 796 (7th Cir. 2002) (delay reflects molasses in the administrative process). Consider that unionized workplaces and financial companies have layers of rules and procedures that can prevent immediate retaliation.
73. A useful analogy is the “same actor” inference. Some courts hold that where the plaintiff has been both hired and fired by the same decision-maker, an inference against discrimination should be recognized. While such inference may be plausible, it is inappropriate to draw an inference in the employer’s favor during the summary judgment process, as it impermissibly assumes that either the workplace dynamics, or the decision-maker’s cognitive state, is static, or that the decision-maker did not harbor bias in the first place. Verdrager, 474 Mass. at 404 n.32. Likewise, even if a long delay might support a reason-able inference against retaliation, it is improper to draw such inference at the Rule 56 stage, where it should merely be considered, at most, a neutral circumstance.
74. Supra fn. 27.
75. As a comparison, sometimes there are race discrimination cases without evidence of hostile racial remarks. At summary judgment, courts do not regard the absence of such remarks as tending to show that discrimination is less likely. Rather, in the absence of such evidence, the courts simply look to other types of evidence, such as qualification, replacement and pretext, to see if there is sufficient proof of discrimination. Likewise, if there is no timing evidence in a retaliation case, that should be a neutral factor, and the court should direct its attention to whether there are other sources of evidence that support an inference of retaliation. The absence of timing evidence at the summary judgment stage should not be taken as an affirmative indication that retaliation is less likely.
76. Williams v. Brigham & Women’s Hosp., 2002 Mass. Super. LEXIS 52, at 13; Gunther v. Gap, Inc., 1 F. Supp. 2d 73, 78 (D. Mass. 1998) (assuming plaintiff was replaced as manager where there was no evidence his store was closed); Dow v. Donovan, 150 F. Supp. 2d 249, 262 (D. Mass. 2001) (court assumes, in the absence of countervailing evidence, that employer continued to seek partner-level attorneys).