[*PG741]WEIGHING TEMPORAL PROXIMITY IN TITLE VII RETALIATION CLAIMS
Abstract: In recent years, employment discrimination retaliation claims have been a growing focus of federal employment law. The primary source of this protection has been � 704(a) of Title VII of the Civil Rights Act of 1964. Title VII retaliation claims are litigated using a common judicial framework originally developed for discrimination claims. Courts differ, however, in their individual application of this framework and, as a result, vary significantly in their standards for litigating a Title VII retaliation claim. A significant source of this disparity has been the way in which courts treat the time that elapses between an employee’s anti-discrimination activity and an employer’s allegedly retaliatory action (“temporal proximity”). This Note evaluates the conflicting approaches to the element of temporal proximity. It concludes that despite the conflicting treatment of temporal proximity evidence by different federal jurisdictions, a single, optimal rule for such evidence can be identified.
In recent years, employment discrimination retaliation claims have been a growing focus of federal employment law.1 Employees seeking legal recourse for employment discrimination have increasingly sought protection from employers attempting to retaliate against their anti-discrimination efforts.2 The primary source of this protection has been � 704(a) of Title VII of the Civil Rights Act of 1964.3 Ti[*PG742]tle VII protects employees both from discriminatory treatment in employment and from retaliation by employers for asserting their rights against alleged discrimination.4 In a discrimination claim, an employee alleges that an employer treated the employee differently because of a statutorily protected characteristic.5 In a retaliation claim, an employee alleges that an employer treated the employee adversely because the employee protested alleged discrimination.6 Title VII retaliation claims are litigated using a common judicial framework originally developed for discrimination claims.7 Courts differ, however, in their individual application of this framework and, as a result, vary significantly in their standards for litigating a Title VII retaliation claim.8 A significant source of this disparity has been the way in which courts treat the time that elapses between an employee’s anti-discrimination activity and an employer’s allegedly retaliatory action (“temporal proximity”).9
Temporal proximity is crucial in many retaliation claims because retaliatory employers rarely memorialize their retaliatory motives.10 In [*PG743]the absence of such “smoking gun” evidence, many retaliation claims are mostly, if not entirely, built on circumstantial evidence including temporal proximity.11 Furthermore, temporal proximity has been recognized as particularly powerful circumstantial evidence of retaliation.12 Short intervals of time between an employee’s anti-discrimination efforts and an employer’s allegedly retaliatory action can create powerful inferences of retaliation.13 Yet courts have not adopted consistent standards for weighing temporal proximity evidence.14 As a result, temporal proximity is not given the same weight among courts, nor even, on occasion, in different cases within the same jurisdiction.15 Although the standards for evaluating temporal proximity are often defined in similar terms, the differences in the application of those definitions are significant and may be crucial to the success of a retaliation claim.16
This Note proposes a framework for assessing the appropriate weight that should be given to temporal proximity evidence in Title VII retaliation claims. Part I examines the structure of retaliation claims and identifies the role of temporal proximity within that framework.17 Part II explores the various ways in which courts currently weigh temporal proximity and defines three broad categories of rules for the treatment of such evidence (“temporal proximity rules”).18 Part III analyzes the components of these rules and establishes from them the basic principles determining the appropriate weight for temporal proximity.19 Finally, Part IV defines and proposes [*PG744]a single rule for weighing temporal proximity evidence based on those principles.20
Title VII has long been the cornerstone of federal employment discrimination law.21 Title VII prohibits discrimination by employers based on race, color, religion, sex, or national origin.22 The statute provides employees with an administrative procedure for pursuing claims through the Equal Employment Opportunity Commission (EEOC) and creates a private right of action for employees seeking damages or relief for employment discrimination.23 Title VII, therefore, not only prohibits employment discrimination, but also enables employees to seek recourse for discrimination.24
In addition to prohibiting discrimination, Title VII protects employees from retaliation in response to their anti-discrimination activity.25 A retaliation claim begins with alleged employment discrimination.26 The employee responds to the alleged discrimination by protesting the discrimination in some way.27 This may be as informal as discussing it with the employer or as formal as filing an official complaint with the EEOC.28 The focus of a Title VII retaliation claim, however, is an employment action, such as firing, demotion, or reduction in pay, that allegedly occurs in response to the employee’s anti-discrimination activity.29 Specifically, Title VII prohibits an employer [*PG745]from retaliating against an employee because that employee has “opposed” unlawful discrimination in the workplace or has “participated” in any process or investigation directed against such discrimination.30 The rationale for these provisions is to ensure employees full access to Title VII’s anti-discrimination protections.31 Protecting employees from employment discrimination, after all, would be meaningless if an employer could simply fire an employee who sought to protest discriminatory behavior.32
Title VII also establishes the basic requirements for proving retaliation.33 In defining these requirements, the statute attempts a careful balance between employee rights and employer interests that courts struggle to maintain.34 To succeed in a Title VII retaliation claim, a plaintiff must prove three elements: (1) the plaintiff engaged in a statutorily protected anti-discrimination activity (“protected activity”); (2) the plaintiff’s employer took adverse employment action against the plaintiff (“adverse action”); and (3) a causal connection existed between the plaintiff’s protected activity and the employer’s adverse action (“causal connection”).35 Retaliation claims proceed in one of two ways, depending on the nature of the evidence available.36 Plaintiffs with direct evidence of retaliation present such evidence without the benefit of a shifting burden of production (“burden [*PG746]shift”).37 Plaintiffs with only circumstantial evidence, however, experience this benefit.38
In 1973, in McDonnell Douglas Corp. v. Green, the Supreme Court of the United States adopted a burden shift for Title VII discrimination cases.39 Since McDonnell Douglas, all United States Courts of Appeals have adopted the burden shift for retaliation claims under Title VII as well.40 The burden shift involves three steps.41 First, the plaintiff must make a showing of a prima facie case of retaliation.42 If the plaintiff’s showing is sufficient, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action taken against the plaintiff.43 If the defendant articulates such a reason, the burden shifts back to the plaintiff to prove that the stated reason for the adverse action is actually a pretext for retaliation.44 Under the burden shift, therefore, proving pretext satisfies the plaintiff’s ultimate burden of proof in a retaliation claim.45
Since McDonnell Douglas, the burden shift has provided the framework for presenting and evaluating the circumstantial evidence so common to Title VII claims.46 The Supreme Court introduced the burden shift as the best means to fulfill Title VII’s purpose of protect[*PG747]ing equality in the workplace.47 It “is intended progressively to sharpen the inquiry into the elusive factual question” of a Title VII claim by creating an “intermediate” burden of production—the prima facie burden—distinct from the plaintiff’s “ultimate” burden.48 In doing so, the burden shift facilitates access to Title VII protection for plaintiffs with no direct evidence of retaliation.49
In most jurisdictions, the elements required to establish a prima facie case of retaliation are the same as those required ultimately to prove retaliation: protected activity, adverse action, and a causal connection.50 Because of the burden shift, however, the plaintiff’s entire burden of proof need not be satisfied at the prima facie stage.51 Instead, the plaintiff need only raise an inference of retaliation to state a prima facie case, a burden that the Supreme Court has defined as “not onerous.”52 The plaintiff may then fulfill the burden by proving pretext.53
Determining the point at which a plaintiff has established a prima facie case, therefore, is essential for two reasons.54 First, it enables a plaintiff with no direct evidence of retaliation to proceed with a claim—thereby fulfilling the original rationale for the burden shift.55 Second, establishing a prima facie case shifts not only the burden but the entire battle.56 Although the plaintiff still bears the ultimate burden of proof, the plaintiff need not produce the same kind or amount of evidence under the burden shift as would be necessary [*PG748]to prove retaliation directly.57 At the outset, a plaintiff needs only enough evidence of protected activity, adverse action, and a causal connection to create an inference of retaliation.58 The fight then moves to the issue of whether the employer’s stated non-retaliatory motive is pretextual.59
The burden does not shift, however, unless the plaintiff establishes a prima facie case.60 Courts do not necessarily agree on the amount and nature of evidence sufficient to establish a prima facie case.61 Each proof requirement for a retaliation claim has generated varied court interpretation, including the definitions of both protected activity and adverse action.62 The causal connection requirement, however, has generated the most intense debate because it is the linchpin of a retaliation claim.63 Title VII, after all, only prohibits adverse action taken because of protected activity.64 Without a causal connection requirement, Title VII would in practice require an employer to prove affirmatively legitimate reasons for every adverse action taken against an employee who at any previous point had engaged in a protected activity.65 The causal connection, therefore, is often the pivotal and most contentious issue in retaliation claims.66
The issue, then, is determining the level of proof required for a causal connection in the prima facie case.67 Requiring minimal evidence might undermine the ultimate proof of a causal connection or enable baseless claims to proceed.68 Requiring too much evidence, in contrast, would defeat the purpose of the burden shift by forcing the plaintiff to prove the paramount issue of retaliation at the outset.69 Moreover, courts must determine not only the level of proof, but also the kind of proof that satisfies both the prima facie case and ultimate [*PG749]burdens.70 For example, an employer’s comments or expressions of dislike for an employee, failure to follow standard practices in dealing with an employee, and disparate treatment of employees each may be circumstantial evidence of a causal connection.71
But perhaps the most important and most common circumstantial evidence of a causal connection is temporal proximity.72 The reasons are straightforward.73 The sooner adverse action is taken after protected activity, the stronger the implication that the protected activity caused the adverse action, particularly if no legitimate reason for the adverse action is evident.74 In addition, every retaliation claim bears evidence of some interval between protected activity and adverse action, whether that interval is measured in minutes or months.75
Courts have spent considerable time and energy evaluating temporal proximity evidence in retaliation claims.76 In the process, they have found several areas of agreement regarding its treatment.77 For example, courts typically agree that temporal proximity is significant circumstantial evidence of retaliation.78 Moreover, courts generally agree that temporal proximity alone can be sufficient to establish a prima facie case, even though some do not consider it sufficient per se.79 Additionally, although no jurisdiction has adopted a bright line test for determining the amount of time that is probative of a causal connection, courts recognize that a very short interval between protected activity and adverse action is highly probative of a causal connection.80 Conversely, courts also agree that extended intervals may disprove a causal connection.81
[*PG750] In 2001, in Clark County School District v. Breeden, the Supreme Court cemented the areas of general agreement among lower courts on temporal proximity.82 The Court held that very close temporal proximity alone could be sufficient evidence for a prima facie causal connection.83 The Court further held, however, that the twenty-month period between protected activity and adverse action in the instant case was too long by itself to establish a causal connection.84 The Court also identified an additional element necessary to prove retaliation under Title VII, agreeing with many lower courts and holding that a plaintiff must prove that the employer knew about the protected activity (“knowledge requirement”).85
The Supreme Court, however, left unresolved a number of issues regarding the appropriate weight for temporal proximity in retaliation claims.86 The Court did not explicitly define temporal proximity nor establish a mechanism for determining the length of time sufficient to establish a prima facie case, but held only that twenty months was too long in the factual context of Breeden.87 Additionally, the Court did not identify the circumstances in which temporal proximity alone would be sufficient to establish a causal connection in a prima facie case.88 Finally, the Court did not determine what weight temporal proximity should be given beyond the prima facie case stage.89
Lower federal courts have taken a variety of approaches to the issues left unresolved in Clark County School District v. Breeden.90 A number of factors contribute to the relative weight that courts considering retaliation claims give to temporal proximity evidence.91 In general, however, the ways in which courts weigh temporal proximity can be [*PG751]categorized into three types of rules: strong proximity rules, weak proximity rules, and case by case rules.92
Some courts give substantial weight to temporal proximity evidence and have adopted corresponding rules in their case law (“strong proximity rules”).93 A strong proximity rule reflects two underlying principles.94 First, courts with strong proximity rules recognize temporal proximity as highly probative of a causal connection—that is, evidence that an employer took adverse action soon after protected activity raises a significant inference that the employer took the adverse action because of the protected activity.95 Second, courts with strong proximity rules recognize the prima facie burden as lower than the ultimate burden of proof.96 In these jurisdictions, temporal proximity is sufficient to establish a prima facie causal connection because the plaintiff does not bear the full burden of proof at the prima facie stage.97 Courts that have strong proximity rules, therefore, generally treat the establishment of a prima facie case as “de minimis.”98 As a result, a strong proximity rule enables some plaintiffs to proceed with claims that would otherwise fail for insufficient evidence.99
For example, in 2001, in Cifra v. General Electric Co., the United States Court of Appeals for the Second Circuit held temporal proximity evidence sufficient to establish a prima facie causal connection.100 In Cifra, the plaintiff alleged that she had been fired because of her complaints that her supervisor had discriminated against her on the [*PG752]basis of gender.101 Her termination occurred twenty days after her employer learned that she had retained an attorney to pursue a discrimination claim against the employer.102 Applying a strong proximity rule, the court held that twenty days between the protected activity and adverse action was sufficient evidence of a causal connection to establish a prima facie case of retaliation.103
A number of jurisdictions have adopted rules giving temporal proximity evidence significantly less weight in retaliation claims (“weak proximity rules”).104 Courts with weak proximity rules harbor significant concern for the limited purposes of Title VII’s anti-retaliation provisions.105 These courts give less weight to temporal proximity evidence to prevent plaintiffs from pursuing retaliation claims based on insufficient evidence.106 Jurisdictions with weak proximity rules are similar to those with strong proximity rules in several important ways.107 Both types of jurisdictions assign some probative value to temporal proximity evidence and recognize its sufficiency to establish a prima facie case in at least some contexts.108 Moreover, courts with weak proximity rules, like those with strong proximity rules, still vary among themselves in their treatment of temporal proximity.109 Yet plaintiffs who rely substantially on temporal proximity evidence may face appreciably greater challenges in pursuing their claims under weak proximity rules.110
[*PG753] For example, in 1999, in Fenton v. HiSAN, Inc., the United States Court of Appeals for the Sixth Circuit, applying a weak proximity rule, held that temporal proximity evidence was insufficient to establish a prima facie causal connection.111 In Fenton, the plaintiff’s employer withdrew an allowance for the plaintiff to schedule mandatory overtime hours before her regular shift within eight days of her complaint about sexual harassment by a co-worker.112 In light of evidence that the employer had encouraged complaints like the plaintiff’s, however, the court held eight days between protected activity and adverse action insufficient evidence to establish a prima facie causal connection.113
Some courts have declined to adopt definitive rules regarding temporal proximity.114 Instead, these courts have held that the appropriate treatment of temporal proximity depends on the context of each case (“case by case rule”).115 The factors considered in making the determination might include the length of the time interval, the number and nature of protected activities and adverse actions, and any additional relevant circumstances, as well as the burden shift stage and procedural disposition of the case.116 In general, such rules are a product of judicial attempts to reconcile distinct lines of holdings within their own precedents rather than to choose a single rule for temporal proximity.117 Case by case rules, as a result, generally do not produce clear standards of proof for retaliation claims.118
[*PG754] For example, in 2000, in Hudson v. Norris, the United States Court of Appeals for the Eighth Circuit held that the sufficiency of temporal proximity to establish a prima facie case varies “depending on the circumstances” of each case.119 In Hudson, the plaintiff alleged that his employer retaliated against him because he had testified in a co-worker’s lawsuit against the employer.120 Within four months of his testimony, the plaintiff was subjected to multiple adverse actions, including two internal affairs investigations and denial of a promotion.121 Although the court acknowledged that temporal proximity is “generally not enough” to establish a prima facie case of retaliation, it held temporal proximity sufficient to do so in Hudson.122
Several fundamental issues determine the relative strength of a jurisdiction’s proximity rule: the court’s definition of temporal proximity, its assessment of the sufficiency of temporal proximity for establishing a prima facie case, the weight it gives temporal proximity at summary judgment, and its treatment of the knowledge requirement.123 Individually, these issues define the way in which temporal proximity is evaluated at a particular point in the litigation of a retaliation claim.124 Collectively, they indicate a court’s attitude towards temporal proximity and determine the category into which a court’s rule fits.125
The foundational element of a temporal proximity rule is its definition of temporal proximity.126 Determining the length of time that constitutes temporal proximity is essential to determining its ap[*PG755]propriate treatment in retaliation claims.127 But courts have not adopted bright line standards for defining temporal proximity.128 For example, in Clark County School District v. Breeden, the Supreme Court of the United States accepted the United States Court of Appeals for the Tenth Circuit’s definition of temporal proximity as “very close” timing between protected activity and adverse action.129 Similarly, lower federal courts consider the timing of adverse action to be probative of retaliation, and therefore to constitute temporal proximity, only in relation to the circumstances of a particular claim.130
Courts with strong proximity rules, however, can be distinguished somewhat from those with weak proximity rules by their definitions of temporal proximity.131 Courts with strong proximity rules define temporal proximity as a short time interval between protected activity and adverse action.132 This standard is commonly stated as adverse action “close in time” to protected activity or “within a reasonable period of time.”133 In the absence of a bright line, however, this standard requires an analysis of what might reasonably be considered “close” under the circumstances of a particular case.134 Courts with strong proximity rules consider a range of intervals from as short as a few minutes [*PG756]to as long as a few months sufficiently close to constitute temporal proximity.135
Courts adopting weak proximity rules are more restrictive in defining temporal proximity.136 For example, in 2001, in Warren v. Ohio Department of Public Safety, the Sixth Circuit emphasized that only a “very close” interval constitutes temporal proximity and, therefore, is sufficient to establish a prima facie case.137 The court cited precedent in which an interval as short as two months was insufficient alone to establish a prima facie causal connection.138 Similarly, in 2001, in O’Neal v. Ferguson Construction Co., the Tenth Circuit held that additional evidence is required to establish a prima facie causal connection when temporal proximity is not “very close.”139 The court noted that it had previously held three months alone insufficient evidence of temporal proximity.140
Courts with case by case rules display the most range in defining temporal proximity.141 In some cases, these courts evaluate the timing of protected activity on a sliding scale, allowing for varying degrees of temporal proximity.142 For example, in 2001, in Oest v. Illinois Department of Corrections, the United States Court of Appeals for the Seventh Circuit linked the probative value of a time interval to the length of the interval.143 Yet, like jurisdictions with other types of proximity rules, the court provided no explicit means of determining the appropriate weight to accord a given length of time.144 Other courts with case by case rules, in contrast, severely restrict the definition of temporal proximity.145 For example, in 2000, in Farrell v. Planters Lifesavers Co., the United States Court of Appeals for the Third Circuit held that [*PG757]a time interval does not constitute temporal proximity evidence unless it is “unusually suggestive.”146 In any court, however, a retaliation claim will fail at the outset if the plaintiff’s only evidence of a causal connection is a time interval that fails to meet the standard for temporal proximity.147
The second distinction among courts with different types of proximity rules is their evaluation of the sufficiency of temporal proximity for establishing a prima facie case.148 As previously noted, temporal proximity is often a plaintiff’s only evidence of a causal connection.149 Courts with strong proximity rules generally hold temporal proximity alone sufficient to establish a prima facie causal connection.150 For example, in 1999, in Holava-Brown v. General Electric Co., the Second Circuit held that temporal proximity constituted sufficient circumstantial evidence of a causal connection to establish a prima facie case.151 In Holava-Brown, approximately two months had passed between the plaintiff’s complaint about sexual harassment by a co-worker and notification by the plaintiff’s supervisor that she would be dismissed when her contract ended.152 The court held that a two-month interval was sufficiently probative of a causal connection and, therefore, required no additional evidence for the burden of production to shift to the defendant.153
Initially, weak proximity rules appear very similar to strong proximity rules in evaluating the sufficiency of temporal proximity at the prima facie stage.154 In at least some circumstances, courts with weak [*PG758]proximity rules have held that temporal proximity alone may be sufficient to establish a prima facie causal connection.155 For example, in 2001 in Evans v. City of Houston, the United States Court of Appeals for the Fifth Circuit held that five days between the plaintiff’s appearance at a co-worker’s grievance hearing and his being recommended for demotion was sufficient evidence of a causal connection to establish a prima facie case.156 The Fifth Circuit recognized the fundamental probative value of temporal proximity, reasoning that adverse action taken so soon after protected activity raises an inference of a causal connection.157
Under some weak proximity rules, however, temporal proximity may not suffice to establish a prima facie case.158 For example, in 1997, in Swanson v. General Services Administration, the Fifth Circuit stated that temporal proximity alone is not always sufficient to establish a prima facie causal connection.159 The court noted that the plaintiff had engaged in protected activities throughout his employment.160 The court expressed concern that allowing temporal proximity establish a prima facie case per se would encourage employees to seek job protection by regularly engaging in unnecessary protected activities.161
Compared to courts with strong proximity rules, those with weak proximity rules, like the Fifth Circuit, reflect a different understanding of a plaintiff’s burden at the prima facie stage.162 Courts with strong proximity rules recognize the prima facie burden as lower, if not significantly lower, than the ultimate burden of proof.163 Some courts with weak proximity rules, however, blur the distinction between these two burdens.164 In 1998, in Dowe v. Total Action Against Poverty in Roanoke Valley, the United States Court of Appeals for the [*PG759]Fourth Circuit held that the plaintiff must establish a prima facie case by a preponderance of the evidence.165 Although later in the case the court described the plaintiff’s prima facie burden as “less onerous” than the ultimate burden, the court seemed to require the same level of proof to establish a prima facie case as is necessary to prove the ultimate issue of retaliation.166 Moreover, the court appeared to require more proof than those courts with strong proximity rules that have described the prima facie burden as “de minimis.”167
In 2000, in Harris v. King, the Sixth Circuit likewise limited the sufficiency of temporal proximity for the prima facie case by diminishing the distinction between the prima facie burden and the ultimate burden of proof.168 Unlike the Fourth Circuit, however, the court did not qualify its assessment of the plaintiff’s prima facie burden.169 The Sixth Circuit further stated that “no one factor is dispositive” in establishing a prima facie causal connection and that temporal proximity is merely “relevant” to determining such a connection.170
[*PG760] Moreover, the Sixth Circuit has incorporated a significant qualification into its rule that temporal proximity may be sufficient to establish a prima facie case.171 The court has held that temporal proximity alone does not suffice in the face of compelling evidence that the defendant encouraged protected activity.172 If the defendant presents evidence of such encouragement during the plaintiff’s prima facie case, even before the burden shift occurs, then the prima facie case fails.173 Although some courts with strong proximity rules allow the particular context of a case to defeat a prima facie case based solely on temporal proximity, they have not expressly incorporated such a qualification into their standards for establishing a prima facie case.174
Similar to courts with weak proximity rules, courts with case by case rules significantly limit the sufficiency of temporal proximity for establishing a prima facie casual connection.175 Courts with case by case rules provide few explicit standards for determining the appropriate weight of temporal proximity at the prima facie stage.176 Instead, such jurisdictions identify the entire prima facie causal connection as a reasonableness inquiry.177 Courts with case by case rules reason that temporal proximity is sufficient to establish a prima facie case if it raises a reasonable inference of a causal connection in the context of a particular case.178
Like the definition of temporal proximity, determining its sufficiency for establishing a prima facie causal connection is crucial [*PG761]to allowing a retaliation claim to proceed.179 If a plaintiff cannot establish a prima facie case, the burden will not shift to the defendant and the claim will fail.180 For plaintiffs whose only evidence of a causal connection is a time interval, the sufficiency of temporal proximity at the prima facie stage may make or break the entire retaliation claim.181
Some courts with strong proximity rules have held temporal proximity sufficient not only for establishing a prima facie case, but also for ultimately proving a retaliation claim.182 These courts have held that temporal proximity can create a genuine issue of material fact for the jury by raising an inference of pretext.183 Without such an inference, a plaintiff’s retaliation claim fails because the plaintiff has not met the burden of producing sufficient evidence of pretext under the burden shift.184 If the plaintiff cannot produce sufficient evidence that the defendant’s stated, non-retaliatory reasons for adverse action are pretextual, then the defendant will win a motion for summary judgment.185 If temporal proximity is considered sufficient evidence to prove pretext, however, then plaintiffs armed only with temporal proximity evidence of a causal connection are able to get their retaliation claim to a jury.186
For example, in 1996, in Strother v. Southern California Permanente Medical Group, the United States Court of Appeals for the Ninth Circuit found that the plaintiff had established a prima facie case of retaliation.187 In Strother, one day passed between the plaintiff’s filing of a claim of race and gender discrimination and her replacement as personal physician coordinator.188 The defendant, however, offered a variety of non-retaliatory reasons for this and other adverse actions.189 The Ninth Circuit stated that a prima facie case is, in itself, in[*PG762]sufficient to raise a genuine issue for the fact-finder.190 The court reasoned, however, that the same evidence that establishes a prima facie case, if it is strong enough, might also create a genuine issue of pretext for the jury.191 The court concluded that temporal proximity is sufficient to get a case to the jury “even in the face of” the defendant’s evidence of non-retaliatory motives.192
Other courts with strong proximity rules, however, have not gone so far.193 Some give substantial weight to temporal proximity but still enable summary judgment resolution of cases in which temporal proximity is the sole evidence of a causal connection.194 These courts consider temporal proximity more in the context of other evidence in the record, reasoning that other evidence may outweigh temporal proximity, even when temporal proximity is viewed in the light most favorable to the plaintiff.195 Unlike courts with weak proximity rules, however, these courts do not expressly require summary judgment at the point at which temporal proximity meets evidence of non-retaliatory motive.196
For example, in 2001, in Cifra v. General Electric Co., the Second Circuit held that temporal proximity alone could satisfy a plaintiff’s ultimate burden of proof of a causal connection.197 The court noted that twenty days between protected activity and adverse action was purely circumstantial evidence, but also noted that in ruling on a summary judgment motion it must credit the record in the light most favorable to the plaintiff.198 Under this standard, the court held temporal proximity evidence sufficient to prove pretext, and therefore, to find the defendant liable for retaliation.199 In 2001, in Slattery v. Swiss Reinsurance America Corp., however, the Second Circuit held temporal proximity insufficient in the factual context of the case to meet the plaintiff’s ultimate burden of proof of a causal connection.200 In Slattery, the plaintiff alleged that he had been put on probation and later [*PG763]terminated because he had filed an EEOC complaint of age discrimination.201 In considering the defendant’s motion for summary judgment, the court evaluated evidence that the adverse action was part of an extended disciplinary process.202 Considering this other evidence, the Second Circuit held that temporal proximity was not sufficient for a rational jury to find for the plaintiff.203
Unlike courts with strong proximity rules, courts with weak proximity rules generally have held temporal proximity alone insufficient for a plaintiff to survive summary judgment.204 Under the burden shift, therefore, a plaintiff needs additional evidence of pretext to rebut a defendant’s proffered non-retaliatory reason or reasons for adverse action.205 For example, in 1997, in Conner v. Schnuck Markets, Inc., the Tenth Circuit emphasized that the inference of a causal connection at the prima facie stage “drops from the case” once the defendant has offered a non-retaliatory rationale for the adverse action.206 Unlike the Ninth Circuit in Strother, which emphasized the potential vitality of prima facie evidence at the pretext stage, the Tenth Circuit emphasized the pretext stage as a distinct inquiry requiring proof, if not evidence, separate from that employed at the prima facie stage.207
Although they evaluate temporal proximity evidence in the context of each case, courts with case by case rules are even more restrictive of temporal proximity at summary judgment than other courts.208 For example, in 2000, in Buettner v. Arch Coal Sales Co., the Eighth Circuit held that temporal proximity generally is insufficient to create an [*PG764]issue for the jury.209 In Farrell, the Third Circuit went even further, citing the limited sufficiency of temporal proximity at summary judgment as support for its case by case rule.210 The court noted that the appropriate weight of temporal proximity evidence depends not only on the “specific facts and circumstances” of a case but also on the burden shift stage and “procedural circumstance” of the case.211
A defendant’s motion for summary judgment puts a court’s attitude towards temporal proximity evidence in sharp focus.212 In many courts, a defendant’s motion for summary judgment represents a daunting if not overwhelming hurdle for plaintiffs relying on temporal proximity evidence to prove a causal connection.213 In those courts, therefore, even the burden shift—designed to aid plaintiffs relying substantially on circumstantial evidence—will not enable a plaintiff to survive summary judgment resolution in the defendant’s favor.214
The Supreme Court’s adoption of a knowledge requirement in Breeden potentially added another hurdle to the sufficiency of temporal proximity, for both establishing a prima facie case and surviving summary judgment.215 The knowledge requirement derives from the reality that an employer cannot take retaliatory action because of a protected activity of which the employer had no knowledge.216 Proving retaliation, therefore, requires proof of the employer’s knowledge.217 Most courts, however, regardless of the type of proximity rule they [*PG765]have adopted, had previously adopted the knowledge requirement in some form and, practically, treat it in a common manner.218
Some courts with strong proximity rules require a showing of knowledge as part of the proof of a causal connection.219 In these courts, temporal proximity, without a separate showing of knowledge, fails to establish a prima facie case, let alone raise a genuine issue of a causal connection for a jury.220 In 1998, in Hazward v. Runyon, the United States District Court for the District of Columbia utilized such a standard.221 In Hazward, the plaintiff alleged he had been the subject of adverse action during the two months between filing a request for counseling in response to alleged gender discrimination and filing a formal complaint.222 The plaintiff produced no evidence, however, that his employer knew of the original request.223 The plaintiff, therefore, was unable to prove that the employer knew about the protected activity when the adverse action occurred.224 The court held that temporal proximity, without evidence of knowledge, was insufficient to establish a prima facie causal connection.225 Similarly, the United States Court of Appeals for the First Circuit expressly requires a separate showing of knowledge in its strong proximity rule.226 Both for the prima facie case and ultimate proof of retaliation, the First Circuit’s rule states that “the employer’s knowledge of the protected activity,” not the protected activity itself, must be “close in time to the employer’s adverse action.”227
Under weak proximity rules and case by case rules, as under most strong proximity rules, a plaintiff cannot establish a prima facie case based on temporal proximity evidence without a separate showing of knowledge.228 The Sixth Circuit has adopted the knowledge requirement as a fourth element of the prima facie case, separate from the [*PG766]causal connection.229 Therefore, even if a plaintiff is able to establish a prima facie causal connection based on temporal proximity, the prima facie case fails without a separate showing of knowledge.230 The Fourth Circuit, in contrast, has incorporated knowledge into the causal connection requirement, but still requires a separate showing of knowledge.231 In practice, there is no difference between the two approaches—both require a separate showing of knowledge.232
Not every jurisdiction, however, requires a separate showing of knowledge per se.233 The United States Court of Appeals for the Eleventh Circuit has integrated the knowledge requirement into a single required showing of a causal connection.234 The Eleventh Circuit has reasoned that proving knowledge is part of proving a causal connection.235 Temporal proximity, therefore, imputes knowledge of protected activity to an employer in the same way that it raises an inference of a causal connection.236 As a result, the court has held that a plaintiff may prove both knowledge and a causal connection circumstantially using the same temporal proximity evidence.237 The court, therefore, allows a plaintiff with no direct evidence of knowledge or a causal connection other than temporal proximity to survive a defendant’s motion for summary judgment and, potentially, to win a jury verdict of retaliation.238
As the preceding discussion demonstrates, temporal proximity receives different treatment in different jurisdictions.239 Even those courts that share one type of rule for temporal proximity often differ in their specific definitions or applications of that rule.240 Determin[*PG767]ing an appropriate single standard for temporal proximity evidence, therefore, depends on an analysis of the specific elements of temporal proximity rules as identified in Part III.241
Such an analysis produces a single, optimal standard for temporal proximity.242 This standard borrows elements from the temporal proximity rules in a number of jurisdictions and is basically a strong proximity rule.243 According to this standard, courts should define temporal proximity as adverse action close in time to protected activity.244 In addition, courts should recognize the sufficiency of temporal proximity evidence to establish a prima facie causal connection.245 Depending on the circumstances of a particular case, courts should also recognize the sufficiency of temporal proximity evidence for ultimate proof of a causal connection at the summary judgment stage.246 Finally, courts should incorporate the approach of the Eleventh Circuit to the knowledge requirement, merging it with the causal connection requirement into one element of proof of retaliation for which temporal proximity is sufficient.247
Formulating a single rule for temporal proximity first requires defining temporal proximity.248 Courts provide a variety of alternatives.249 Despite the variation, however, some elements are common to [*PG768]each definition.250 Considering both the common and varying elements of each definition, the optimal definition for temporal proximity is adverse action close in time to protected activity.251
In general, regardless of the type of temporal proximity rule employed, each court’s standard for temporal proximity requires that the protected activity be, to some extent, close in time to the adverse action.252 Moreover, each requires that the time interval indicate, by itself, some degree of causal connection to be considered probative of retaliation.253 Also, each courts’ standard is essentially a reasonableness inquiry, probing whether the time interval might reasonably be probative of retaliation in the circumstances of a given case.254 Most significantly, no court has adopted a bright line standard for defining temporal proximity.255
A bright line standard is ill-suited to temporal proximity evidence.256 Although such a standard might provide uniformity to Title VII retaliation litigation, it would also be impractical, given the context-specific nature of temporal proximity evidence.257 A time interval of a particular length may be probative of retaliation in the circumstances of one case but not in the circumstances of another.258 Moreover, a bright line rule could defeat the purpose of anti-retaliation protection.259 For example, it might encourage employers harboring [*PG769]retaliatory motives merely to delay adverse action until the length of time defined by the standard had passed.260 The employer could thus deny an employee use of temporal proximity evidence in establishing a prima facie case of retaliation.261 Conversely, a bright line standard might encourage employees to attempt to insulate themselves from legitimate, non-retaliatory adverse action by regularly engaging in needless protected activity.262 Therefore, any adverse action would occur within the period of time defined as probative of retaliation.263
The same concerns apply, to some extent, to the reasonableness standards that courts currently employ.264 Shrewd employees or patient but retaliatory employers might still manipulate the timing of their protected activity or adverse action to their advantage.265 Avoiding this outcome to the extent possible, however, appears to be the central rationale for use of a reasonableness standard.266 The circumstances of any particular case enable a reasonable assessment of the time interval within the context of the case.267 Therefore, a reasonableness standard is better suited to weighing temporal proximity than the bright line alternative.268
The next step, then, is defining the terms of an appropriate reasonableness standard for temporal proximity.269 Although courts generally adopt similar definitions of temporal proximity, the terms employed differ in their restrictions on the length of time that can be considered evidence of temporal proximity.270 For example, courts [*PG770]with strong proximity rules generally require only that adverse action be “close” in time to protected activity, or that the interval between the two be “reasonable.”271 Alternatively, courts with weak proximity rules generally require that the two be “very close.”272 Although courts with case by case rules have not adopted common standards, at least one such jurisdiction uses even more restrictive language, requiring that the interval be “unusually suggestive.”273
The difference among these definitions might be largely semantic.274 It is not necessarily certain that courts with weak proximity rules are significantly more restrictive per se in applying their definitions of temporal proximity than courts with strong proximity rules.275 The difference, to the extent that there is one, is significant more because it reflects broader differences between courts with different types of proximity rules.276 It is more a difference of attitude than application.277 Courts define their standards in terms that reflect the weight they assign to temporal proximity, even though their interpretations of what evidence constitutes temporal proximity may be essentially the same.278 Courts that give more weight to temporal proximity evidence—those with strong proximity rules—define temporal proximity more expansively.279 Courts that give less weight to temporal proxim[*PG771]ity—those with weak proximity rules—define it more narrowly.280 Likewise, at least one court with a case by case rule has declined to define temporal proximity.281 Therefore, determining the most appropriate definition for temporal proximity requires a determination of the optimal weight that courts should give temporal proximity evidence.282 As the following discussion indicates, a strong proximity rule definition, requiring simply that protected activity and adverse action be close in time, probably provides both an appropriate, workable standard and the flexibility necessary to apply it.283
Most courts recognize at least some circumstances under which temporal proximity alone is sufficient to establish a prima facie causal connection.284 One of the central differences among courts with different types of proximity rules, however, is their restrictions on those circumstances.285 Courts with strong proximity rules generally hold that temporal proximity alone is sufficient to establish a prima facie case.286 In contrast, courts with weak proximity rules restrict the potential sufficiency of temporal proximity for establishing a prima facie case.287 Courts with case by case rules, by definition, determine the sufficiency of temporal proximity evidence according to the facts of each case.288 Although each of the alternatives represents different concerns about the scope of Title VII and the role of the burden shift [*PG772]in retaliation claims, an appropriately defined strong proximity rule could successfully meet all of these concerns.289
A strong proximity rule best serves the purpose of the burden shift.290 The burden shift “is intended progressively to sharpen the inquiry into the elusive factual question” of retaliation.291 It achieves this progression by creating an intermediate burden of production at the prima facie case stage that is “not onerous” and requires the plaintiff merely to establish an inference of retaliation.292 In the absence of any other evidence, temporal proximity creates such an inference.293 Adverse action taken soon after protected activity creates an inference of a causal connection between the two events.294 Indeed, most courts, regardless of the type of proximity rule they have adopted, recognize at least some circumstances in which temporal proximity alone suffices to establish a prima facie causal connection.295 Although temporal proximity is itself not conclusive proof of a causal connection, such proof is not required to establish a prima facie case.296
A strong proximity rule for the prima facie case, however, raises a significant concern.297 A strong proximity rule enables an employee to establish a prima facie case of retaliation, even in response to purely legitimate adverse action.298 Allowing mere temporal proximity to establish a prima facie causal connection, therefore, might encourage employees to engage in frivolous protected activity regularly.299 Moreover, a strong proximity rule requires employers to defend any adverse action taken against an employee who has recently engaged [*PG773]in a protected activity, regardless of its validity.300 Indeed, this argument has been persuasive to courts adopting a weak proximity rule or case by case rule analysis of the prima facie case requirement.301
The argument falters, however, for two reasons.302 First, the intermediate burden of the prima facie case is intentionally more easily met than the ultimate burden.303 An employee who cannot prove retaliation often may be able to establish a prima facie case.304 Therefore, the burden shift may encourage employees to file retaliation claims that cannot be proven.305 The establishment of a burden that is “not onerous” for raising an inference of retaliation, however, is simply a necessary cost of the expanded access to Title VII protection that the burden shift is intended to provide.306
The second reason the weak proximity rule argument should ultimately fail is an extension of the first.307 Because the ultimate burden is higher than the prima facie burden, proving retaliation under the burden shift requires more than establishing a prima facie case.308 For example, under a strong proximity rule, an employee with a frivolous retaliation claim could establish a prima facie case based solely on temporal proximity.309 Once the burden shifts, however, the legitimacy of the adverse action comes into focus.310 If the employer cannot state a legitimate, non-retaliatory reason for the adverse action, the employee will win.311 But, if the employer can state such a reason, the burden shifts back to the employee to prove that reason pretextual.312 If the employee cannot, then the employee’s retaliation claim fails.313 A frivolous retaliation claim, therefore, will likely fail [*PG774]despite the sufficiency of temporal proximity alone to establish a prima facie case.314
A strong proximity rule for the prima facie case is also preferable because it maintains the distinction between the plaintiff’s two burdens.315 Courts with strong proximity rules generally define the prima facie burden as easily met, as the Supreme Court of the United States has.316 Furthermore, some courts with strong proximity rules declare explicitly that the burden to establish a prima facie case is not the same as the ultimate burden of proof.317 In contrast, courts with weak proximity rules generally blur the distinction between the two burdens.318 Some explicitly require a plaintiff to prove a prima facie case by a preponderance of the evidence, the same standard by which a plaintiff must ultimately prove pretext.319 In trying to correct what they perceive as the excessively low burden of establishing a prima facie case, therefore, these courts essentially defeat the purpose of the burden shift.320
A case by case alternative is no more appealing.321 Courts with case by case rules make the sufficiency of temporal proximity purely contextual.322 Although every court agrees that evaluating temporal proximity depends on its factual context, at least to some extent, a case by case rule provides no clear standards regarding the prima facie case burden.323 Moreover, a case by case approach to the prima facie case is unnecessary.324 In Farrell v. Planters Lifesavers Co., the Third Circuit supported its case by case rule by emphasizing the im[*PG775]portance of the “specific facts and circumstances” of each case.325 But the purpose of the prima facie case requirement is not to weigh and evaluate all of the evidence in a retaliation claim.326 That is the purpose of the three stages of the burden shift collectively.327 Instead, the purpose of the prima facie case is simply to determine if the plaintiff has raised an inference of retaliation—a burden for which temporal proximity alone should suffice.328
As with the prima facie case analysis, a strong proximity rule approach to summary judgment is likely the most appropriate.329 Courts with strong proximity rules hold temporal proximity sufficient to create a genuine material issue for the jury, at least in some cases.330 In contrast, courts with weak proximity rules generally require a plaintiff to produce additional evidence of a causal connection.331 Similarly, courts with case by case rules generally require additional proof of pretext.332 Unlike in the prima facie case analysis, this difference does not hinge on different understandings of the burden for summary judgment resolution.333 It depends instead on different evaluations of the probative value of temporal proximity evidence.334 A strong proximity rule for summary judgment resolution incorporates both an appropriate recognition of the probative value of temporal proximity and sufficient discretion for a court to grant summary judgment in cases in which it is appropriate.335
In a retaliation claim, evaluating summary judgment disposition requires an understanding of the plaintiff’s ultimate burden of proof.336 To prove retaliation under the burden shift, a plaintiff must first establish a prima facie case and then, if the defendant produces [*PG776]evidence of legitimate, non-retaliatory reasons for the adverse action, prove those reasons to be, in fact, pretext for retaliation.337 The issue for summary judgment resolution of a retaliation claim, then, is whether a reasonable jury could find that a retaliatory motive caused the adverse action, based on the evidence in the record viewed most favorably to the plaintiff.338
Practically, the plaintiff’s evidence for ultimately proving retaliation may be the same as the evidence used to establish a prima facie case.339 The plaintiff must prove the same causal connection to succeed in proving pretext as is necessary to establish a prima facie causal connection.340 The difference between the two stages is the burden that the plaintiff faces.341 Although the evidentiary burden at the prima facie case stage may be “de minimis,” the ultimate burden—the burden at the pretext stage—requires a preponderance of the evidence.342 The sufficiency of temporal proximity evidence alone to defeat a motion for summary judgment, therefore, depends on the sufficiency of temporal proximity to prove a causal connection by a preponderance of the evidence.343
This determination, in turn, depends on the evidentiary record as a whole.344 In ruling on a defendant’s motion for summary judgment, a court credits the inference of a causal connection that a prima facie case establishes.345 If the record indicates no valid, credible reason for the adverse action, then a reasonable jury could find a causal connection based solely on temporal proximity.346 For example, if the record indicates that the plaintiff had an exemplary employ[*PG777]ment record with an economically vibrant employer, but became the object of adverse action soon after engaging in protected activity, a reasonable jury probably could find the employer liable for retaliation by a preponderance of the evidence.347 On the contrary, if the defense has a strong case, temporal proximity alone will not be sufficient.348 For example, if the defendant has produced a legitimate, non-retaliatory reason for its adverse action and the plaintiff’s only evidence of a causal connection is temporal proximity, summary judgment in favor of the defendant is appropriate.349
Some courts with strong proximity rules incorporate this approach to summary judgment resolution.350 The Second Circuit provides a good example.351 In Cifra v. General Electric Co., the court held temporal proximity sufficient to establish a prima facie causal connection.352 Although the record contained no other evidence of a causal connection, the court held that a rational fact-finder could find a causal connection based solely on the temporal proximity evidence, and therefore, could find the defendant liable for retaliation.353 In Slattery, however, the court produced a different result applying the same rule.354 In considering the defendant’s motion for summary judgment, the court evaluated evidence that the adverse action was part of an extended disciplinary process.355 Under the circumstances, temporal proximity was insufficient to prove a causal connection between the adverse action and the protected activity by a preponderance of the evidence.356
In contrast, courts with weak proximity rules generally hold temporal proximity alone insufficient to create a genuine material issue.357 They require additional evidence of a causal connection, regardless of the facts in a case.358 Similarly, jurisdictions with case by [*PG778]case rules require more than temporal proximity to create a genuine material issue, even though, by definition, they weigh the sufficiency of temporal proximity evidence according to the context of each case.359 In doing so, courts with both types of rules raise the bar for temporal proximity evidence too high.360 As a general proposition, they may grant defendants’ motions for summary judgment even in cases in which a reasonable jury could find a causal connection based on temporal proximity.361 Courts with strong proximity rules for summary judgment resolution are more effective in distinguishing cases in which summary judgment is appropriate from those in which it is not.362
Finally, courts should adopt the Eleventh Circuit’s approach to the knowledge requirement.363 The Eleventh Circuit expressly allows a plaintiff to meet the knowledge requirement with the same evidence used to meet the causal connection requirement.364 In doing so, the court has held temporal proximity sufficient circumstantial proof of knowledge.365 Although unique, this approach best serves the purpose of the burden shift while upholding the appropriate standards of proof for a retaliation claim.366
In many courts, regardless of the type of temporal proximity rule, a plaintiff must make a showing of knowledge independent of temporal proximity evidence.367 Some courts identify the knowledge requirement as a fourth element of a prima facie case, comparable to protected activity, adverse action, and a causal connection.368 Others treat the knowledge requirement as part of the causal connection requirement, but require a separate showing of knowledge neverthe[*PG779]less.369 Each of these approaches to the knowledge requirement, however, lacks the benefits of the Eleventh Circuit’s approach.370
First, the Eleventh Circuit appropriately recognizes that the knowledge requirement is really part of the causal connection requirement.371 Both requirements derive from the same chain of logic. To prove retaliation, a plaintiff must prove that a causal connection exists between protected activity and adverse action.372 To prove a causal connection, however, a plaintiff must prove that the defendant knew of the protected activity.373 The defendant could not have taken adverse action because of protected activity if the defendant did not know about the protected activity.374 Proving knowledge, therefore, essentially proves one aspect of a causal connection.375 Courts that require a showing of knowledge separate from the showing of a causal connection implicitly, illogically, and unnecessarily add another hurdle to a plaintiff’s case.376
Second, the Eleventh Circuit maintains the distinction between the prima facie case burden and the ultimate burden in a retaliation claim.377 By requiring a separate showing of knowledge at the prima facie case stage, other courts require more evidence than is otherwise necessary to establish a prima facie case.378 In doing so, they raise the prima facie burden closer to the ultimate burden and defeat the purpose of the burden shift.379 The Supreme Court established the burden shift as a framework for evaluating circumstantial evidence.380 Requiring a separate showing of knowledge, however, fails to uphold that purpose.381 If the separate showing is intended to require direct evidence of knowledge, then it requires at least some direct evidence of a causal connection and, therefore, of retaliation.382 If, on the contrary, circumstantial evidence of knowledge is sufficient, then a plain[*PG780]tiff should be able to prove knowledge with temporal proximity evidence, in the same way that the plaintiff is able to prove a causal connection with temporal proximity evidence.383
In some cases, proving retaliation ultimately may require more evidence of knowledge than establishing a prima facie case.384 Likewise, in many cases, proving a causal connection requires additional evidence.385 In both situations, however, the sufficiency of temporal proximity to create a genuine issue of material fact should depend on the circumstances of a particular case.386 Requiring additional evidence of knowledge per se unduly supports defendants’ motions for summary judgment in cases in which a reasonable jury could find a causal connection based on temporal proximity alone.387
This understanding of the knowledge requirement is fully compatible with the Supreme Court’s decision in Clark County School District v. Breeden.388 In that case, the Supreme Court held simply that proof of retaliation requires proof of knowledge.389 The Court neither defined any standard for the knowledge requirement nor required direct evidence of knowledge.390 Presumably, proof of knowledge may be circumstantial.391 If so, temporal proximity should be sufficient to prove knowledge, in addition to proving the causal connection as a whole.392
Despite the conflicting treatment of temporal proximity evidence by different federal jurisdictions, a single, optimal rule for such evidence can be identified. According to this rule, courts should adopt a broad definition of temporal proximity—specifically, adverse action close in time to protected activity. In turn, courts should determine the length of time necessary to meet this standard depending, to some extent, on the circumstances of each case. Courts should also, however, recognize the fundamental sufficiency of temporal proximity for establishing a prima facie case. Moreover, at least in cases in which the factual context makes it appropriate, temporal proximity alone should be sufficient to create a genuine material issue for the jury, and therefore, to defeat a defendant’s motion for summary judgment. Finally, temporal proximity alone should be sufficient to meet the knowledge requirement in a retaliation claim.
Such a rule for temporal proximity upholds both the purpose of the burden shift and the Title VII protection against retaliation that the burden shift serves. Courts adopting such a rule would sustain the burden shift as the framework for evaluating circumstantial evidence. They would recognize the value of circumstantial evidence in retaliation claims and maintain the distinction between the plaintiff’s prima facie and ultimate burdens. In preserving the burden shift, these courts would preserve access to Title VII and maintain the statute’s balance between employee rights and employer interests. Moreover, in adopting a uniform standard, they would bring consistency to an otherwise conflicting but increasingly significant focus of federal employment law.