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Passage of Time Defeats North Carolina Employer Retaliation Claim

    Client Alerts
  • July 22, 2019

North Carolina’s Retaliatory Employment Discrimination Act (REDA) prohibits employers from taking retaliatory action against employees on the basis of workers’ compensation, OSHA, wage and hour, and other state labor law complaints. Like Title VII claims, under REDA employees have the ultimate burden of proving that the adverse employment action was taken as a result of their earlier complaint. Earlier this month, the North Carolina Court of Appeals rejected a REDA claim based in part on the time that passed between the complaint and the plaintiff’s termination.

In Atkins v. Town of Wake Forest, the defendant terminated a police officer for lying about the reasons he did not ride his motorcycle on duty. The plaintiff had filed a workers’ comp claim relating to heat stress from the cycle and, after being terminated, sued the defendant for retaliation under REDA. The trial court dismissed the claim on summary judgment, and the plaintiff appealed to the North Carolina Court of Appeals.

The court noted that under REDA in order to demonstrate retaliation, the plaintiff must show either (1) temporal proximity between the protected complaint and the alleged retaliatory act or (2) a pattern of such retaliatory conduct. The sole alleged retaliation here consisted of the termination, four months after the plaintiff filed his workers’ compensation claim. The court held that as a matter of law, too much time had passed to draw the required temporal inference. In fact, the Court of Appeals cited another North Carolina decision concluding that 2.5 months was too long to show retaliation.

This time period is substantially shorter than that used by plaintiffs to demonstrate retaliation under Title VII and other federal labor laws. Absent an underlying pattern of retaliatory conduct, the passage of time appears to present plaintiffs with an unsurmountable bar in proving the required elements of a REDA claim.