General Motors plaintiff may prevail on Title VII retaliation claim

The Court of Appeals holds that a Black woman who worked at General Motors may prevail on her claim that she suffered retaliation after complaining about extensive racial and sexual harassment at the plant in Western New York.

The case is Banks v. General Motors, issued on September 7. I write about the hostile work environment claim here. The disparate treatment analysis is here. On the retaliation claim, plaintiff was temporarily denied benefits during her medical leave. She eventually got the benefits back. But even the temporary loss of benefits may dissuade a reasonable employee from speaking out in the future because that temporary loss of money may cause significant hardship. The Supreme Court said this in Burlington Northern v. White (2006), and the Court of Appeals (Chin, Carney and Robinson) applies that holding here. The loss of benefits, even if temporarily, is not always a "petty slight" under Title VII. 

The company also deviated from its procedures in delaying plaintiff's return to work. "Delayed return to work, requiring her to undergo an additional psychiatric evaluation that delayed her return to work, which deviated from General Motors's usual practice for employees returning from leave." The company doctor referenced plaintiff's EEOC charge in making this decision, which is direct evidence. He also said the company investigation did not find anything in support of her claims "so that's over, so are you ready to come back to work?"

A word of two on how we define "direct evidence." This ruling notes that direct evidence is not simply an admission from management. It also comes in the form of strong circumstantial evidence. The Court of Appeals says that "direct evidence is that which 'demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact finder that the harmful adverse action was in retaliation for the protected conduct.'" That definition derives from Mahler v. First Dakota Title Ltd. Partnership, 931 F.3d 799, 804 (8th Cir. 2019). 

 

The Court of Appeals also finds circumstantial evidence of retaliatory intent in the form of temporal proximity. The Court notes that a retaliatory response four to eight months after the protected activity can be enough to prove retaliatory intent. But I have noticed that the time-lapse can range as early as two months in some cases. The temporal proximity time-frame seems to fluctuate based on who sits on the case. The time lapse can be longer under Circuit precedent if circumstantial evidence is accompanied with direct evidence. In this case, the six month test is enough to prove retaliatory intent.