In most situations, the more time that passes between an employee's protected behavior and an alleged retaliatory act, the inference of a connection between the two diminishes. Courts do not generally consider employers to be patient enough to wait long periods of time before retaliating against employees. While this inference may be strong, it does not rule out claims of retaliation long after the employee's complaint.
Last month in Munoz v. Sociedad Espanola de Auxilio Mutuo, the Third Circuit Court of Appeals concluded that an employee established a causal connection between his termination and his filing of a discrimination suit against his employer five years earlier.
The plaintiff was a physician at a hospital in Puerto Rico who filed an age discrimination suit against his employer. Five years later, he was terminated, purportedly for diverting diagnostic work from the hospital to his private practice. Despite the long lag between initiation of the lawsuit and the termination, the Third Circuit concluded that the plaintiff's evidence provided a "mosaic" that was enough to support the jury's conclusion that he had been retaliated against. This mosaic included the hospital's approval of his private purchase of diagnostic equipment, the physician's impeccable reputation in the medical community and the fact that other physicians were not disciplined for similar behavior.
Taken as a whole, these factual findings were sufficient to reject the hospital's assertion of legitimate business reasons for the termination. Although unusual, this case reminds employers that there is no absolutely safe time period after which an employee who asserts a claims against his or her employer cannot allege retaliation. Any employment decision involving these employees must be consistent with policy and prior practice, and thoroughly documented to rebut any later claims of a retaliatory motive.