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A recent federal district court of Colorado decision is a reminder that for an employee’s retaliation claim to succeed as a matter of law, the alleged underlying discriminatory event cannot be too remote in time. In Tiger v. Powell, 2022 WL 4182413 (D. Colo. Sept. 13, 2022), a former sheriff’s deputy with the Logan County, Colorado, Sheriff's Office (LCSO) left the county after a year, in 2018, to “pursue school or higher education opportunities.” The former employee was later found to be “permanently ineligible” for public security employment with the Colorado Department of Corrections (CDOC) when he applied for a position as a corrections officer.

The former employee, who was allegedly the only Native American deputy in LCSO, had raised complaints to his sergeant about racist comments made by a sheriff in his first two weeks on the job. Per the sergeant’s suggestion, the former employee ignored the remarks and, for the rest of his year-long employment with LSCO, had no further personnel incidents. When the former employee applied for a position at CDOC in 2020, he was denied employment. Upon review of the hiring decision, it was discovered that a document from LSCO, authored by the former employee’s supervisors, stated that the former employee had “poor or questionable” performance in his list of duties and characteristics and an “unacceptable” rating for “honesty and integrity.”

While the former employee argued that the negative reference was in retaliation for his original complaints about racist comments, the court found the underlying discriminatory event – the comments and his complaints about them – too remote to infer causation. That is, to succeed on a claim of retaliation, an employee must prove that they engaged in protected opposition to discrimination, suffered an adverse action, and that a causal connection exists between the protected activity and the materially adverse action. Here, the former employee failed to prove his complaint about the racist comments was the “but for” cause of the negative reference letter after the judge found that more than two years was too remote for it to infer a causal connection. 

Tiger reminds employers that there is a narrow window for what the court will consider to be causal before it becomes too remote, and timing is crucial in successfully defending against retaliation claims. While the two-year window in this case was considered too attenuated in time, the evaluation of whether events are too remote to find causation requires analysis of the specific facts of each case. Employers Council can assist with training supervisors to address employee harassment and discrimination complaints, as well as responding to claims of retaliation. You can find resources on our website, and contact us with questions at info@employerscouncil.org.