Many employers already walk on eggshells when it comes to dealing with employees who file discrimination charges against them, but they have always been able to rely on the common tenet in retaliation cases that temporal proximity, standing alone, will not establish retaliation. In Mickey v. Zeidler Tool & Die Co., however, the Sixth Circuit held that, “[w]here an adverse employment action occurs very close in time after an employer learns of a protected activity,” the timing of those events is “significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.” Though the majority opinion offers no guidance on what it means by “very close,” a concurring opinion from Judge Batcheldor suggests that, for the case to proceed to a jury solely on evidence of timing, that timing must be so close as to have been “virtually contemporaneous.”

In Mickey, the plaintiff, Charles Mickey, was a 67-year-old, 33-year employee of Zeidler Tool & Die Company. He began working for the company as a die maker and eventually rose to the position of General Manager. Harold DeForge, the owner of the company, asked about Mickey’s plans to retire, but Mickey was not interested. Soon after, DeForge reduced Mickey’s responsibilities and pay, prompting Mickey to file an age discrimination charge with the EEOC. 

DeForge fired Mickey on the same day he learned of the charge. Mickey then filed an additional charge of retaliation with the EEOC and brought his claims to court after receiving a right-to-sue letter. The district court awarded summary judgment to Zeidler Tool & Die on both claims, reasoning that, with respect to the retaliation claim, the timing was simply not enough to establish a connection between Mickey’s termination and the filing of his EEOC charge. 

The Sixth Circuit disagreed, holding that, where the timing of an adverse action is very close to when the employer learns of the protected activity, the timing itself may be enough to permit the case to proceed to a jury trial. But, the court also held that, “where some time elapses between when the employer learns of the protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”

In reaching this outcome, the Sixth Circuit employed the following reasoning:

[I]f an employer immediately retaliates against an employee upon learning of his protected activity, the employee would be unable to couple temporal proximity with any such other evidence of retaliation. Thus, employers who retaliate swiftly and immediately upon learning of protected conduct would ironically have a stronger defense than those who delay….

This reasoning is simple but faulty because it exaggerates the possibility that temporal proximity will be the only evidence that an employee will be able to offer to prove retaliatory animus. Indeed, the court itself undermined its reasoning by noting that the reduction in Mickey’s salary and benefits after DeForge asked him about retirement would have been sufficient additional circumstantial evidence of retaliation, even if the timing was insufficient by itself to establish retaliation.

Despite the Mickey decision, savvy employers will continue to treat employees who file discrimination charges the same as all other employees and will have appropriate documentation to support any adverse employment decisions. Although the Mickey decision gives employers reason for concern, Judge Batcheldor’s concurring opinion suggests that more than mere timing will be needed to establish retaliation unless the adverse action follows so closely behind  the employer’s knowledge of protected activity that the two are “virtually contemporaneous.”