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Even Years Later, ‘Getting Even’ Can Still Be Retaliation

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in Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Title VII of the Civil Rights Act makes it illegal to retaliate against employees who complain about discrimination. Ordinarily, employees must show a strong time-related connection between their initial complaint and the alleged retaliation.

However, employees can file years later if they can show that the individual who allegedly retaliated waited until he was in a position to order a payback. The delay, as this case illustrates, must be plausible.

Recent case: James Dixon, who is black, worked for the FBI as a special agent from 1978 until 1988 when he quit to start a business. About halfway through his tenure at the FBI, he had complained that his direct supervisor, Agent Reutter, treated black agents with disdain. As a result, Reutter was moved to another position. However, while Reutter no longer directly supervised Dixon, he did sign off on performance evaluations prepared by Dixon’s new supervisor.

After some time in business for himself, Dixon applied for reinstatement to the FBI. The bureau asked everyone who had worked with him if they thought he should come back. Among those interviewed was Reutter, who refused to recommend Dixon. It had been more than a decade since Dixon’s original race-discrimination complaint.

Dixon sued, alleging retaliation. He argued that Reutter had waited to retaliate until he had a chance.

The 6th Circuit Court of Appeals concluded that, in theory, a retaliation case years later is possible if the employee could explain the long gap between the original complaint and the alleged retaliation. But Dixon couldn’t make the connection in this case because the FBI could prove that Reutter could have retaliated much earlier if he had wanted to by refusing to sign off on Dixon’s performance reviews. Plus, several other agents also recommended against the reinstatement. (Dixon v. Gonzales, No. 05-2216, 6th Cir., 2007)  

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