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Ignoring Reinstatement Requests Not Retaliation
 

By Alexander Nemiroff and Clark Whitney  5/8/2014

The Equal Employment Opportunity Commission (EEOC) reports that over the past seven years, the number of charges filed against employers for retaliation has increased each year. Retaliation claims now account for more than 40 percent of all charges filed with the EEOC. One reason for this disturbing trend is that it is often easier for employees to meet the initial requirements for a claim of retaliation by showing that an employer disciplined or terminated them after they complained than it is for employees to show that an employer engaged in discrimination.

A recent decision by the 3rd U.S. Circuit Court of Appeals will assist employers in defeating retaliation claims. It focuses on an employee’s obligation to demonstrate a causal link between the employer’s discipline and the employee’s protected activity.

Overall, the 3rd Circuit found in favor of the employer and affirmed a lower court’s dismissal of a retaliation claim filed by a former employee of the City of Philadelphia. The 3rd Circuit found that, absent unusually suggestive timing, the city’s ignoring the employee’s reinstatement requests and filling his former position with another employee were “neutral acts” insufficient to show a causal connection between the filing of his EEOC complaint of race discrimination and the city’s failure to reinstate him.

The former employee, Ralph Blakney, was hired by the city in 1988 as the director of the Older Adult Center in the Parks and Recreation Department. After taking a leave of absence to serve as a political appointee and being restored to his position, Blakney filed a charge with the EEOC in 2008 alleging that he had been discriminated against on the basis of his race because he had not been given a choice between two center locations and was denied the opportunity to interview for the recreation program director position. Blakney then sued the city, his supervisor and the director of human resources for parks and recreation.

In January 2011, while his lawsuit was pending, Blakney voluntarily resigned from his position to care for his terminally ill mother. Nine months later, the lower court granted summary judgment in favor of the city defendants because Blakney could not prove that he had been discriminated against on the basis of his race. Four days later, Blakney hand-delivered a letter to the city’s human resources department demanding that he be reinstated to his former position, or to any available position. Blakney received no response from the city, and the city filled his former position. In December 2011, Blakney hand-delivered a more-detailed letter requesting that he be reinstated to the city’s human resources department. Again, Blakney received no response from the city.

In February 2012, Blakney filed a second charge with the EEOC alleging retaliation. Blakney sued again in November 2012 claiming retaliation. The city defendants moved to dismiss the complaint, the court granted the motion, and Blakney appealed.

The main issue before the 3rd Circuit was whether the lower court erred in finding that Blakney had failed to adequately plead that there was a causal connection between his protected activity and the city’s failure to reinstate him. Since Blakney had first filed an EEOC charge in 2008, brought his lawsuit in 2010 and sought reinstatement in 2011, the 3rd Circuit determined that three years had passed between the filing of his EEOC charge and the failure to reinstate him. It agreed with the lower court that it was “impossible to make any inference of causation between them.”

The 3rd Circuit also found that Blakney had not provided sufficient additional evidence of causation because he had not shown that he was subjected to retaliatory conduct during the time between the filing of his EEOC charge in 2008 and his voluntary resignation in 2011. Rather, the appellate court observed that the only negative conduct Blakney experienced from the city, which the court characterized as “passive at best,” was the fact that his reinstatement requests had been ignored. Because Blakney had pleaded no other interaction with the city, other than the two trips to hand-deliver his reinstatement requests, and because Blakney was not entitled to reinstatement, the court determined that the city’s ignoring Blakney’s reinstatement requests and filling his former position did not support a claim for retaliation. Therefore, the court upheld the dismissal of Blakney’s claims.

Blakney v. City of Philadelphia, 3rd Cir., No. 13-3062 (March 19, 2014).

Professional Pointer: After an employee files a complaint of discrimination, employers should be extremely careful about issuing discipline. However, employees who complain are not immune from discipline.

Alexander Nemiroff and Clark Whitney are attorneys in the Philadelphia office of Ogletree Deakins, an international labor and employment law firm representing management.

 

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