January 31, 2008

To state a claim for retaliatory discharge, an employee must demonstrate a causal relationship between his participation in a protected activity and his termination.  The Sixth Circuit has traditionally held that temporal proximity between the protected activity and an adverse employment action is not sufficient, standing alone, to demonstrate this causal connection.  The court has required the plaintiff to introduce some other evidence of retaliatory motive. 

Today, the Sixth Circuit has signaled a retreat from that position.  In Mickey v. Zeidler Tool & Die Co. (No. 06-1960, Jan. 31, 2008), court held that “[w]here an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.”  Notably, however, the court has offered almost no guidance as to what constitutes “very close in time”  further muddying the waters surrounding retaliation claims.

This is perhaps a case of bad facts making bad law.  Charles Mickey, a 67-year-old man subjected to a pay cut after decades of service, was a particularly sympathetic plaintiff.  Mickey filed an EEOC charge alleging age discrimination in October 2004.  The very next time Mickey saw his supervisor, he was laid off.  The district court granted summary judgment in favor of the employer, but the Sixth Circuit reversed.  The Circuit Court concluded that even if Mickey could not present any other circumstantial evidence of a retaliatory motive, the employer’s virtually immediate decision to fire him after learning of the EEOC complaint was sufficient to establish a causal connection.

As noted in Judge Batchelder’s concurring opinion, the Mickey holding is quite vague and may eventually be limited to extreme fact patterns like the one at issue.  However, for the time being, employers in the Sixth Circuit should be especially careful if taking potentially adverse action against an employee who has recently engaged in protected activity.  Please contact any of the attorneys in Frost Brown Todd’s Labor and Employment Department if you have any questions or concerns.

Click here to read the full text of the Mickey opinion.