The third requirement can sometimes be challenging for employees to prove. Court have recognized, however, that it is easier to find a causal connection when the alleged adverse employment action closely follows the protected conduct. (See Davis v. Team Elec. Co. (9th Cir.2008) 520 F.3d 1080, 1094.) In some cases, temporal proximity is by itself sufficient circumstantial evidence of retaliation. (Dawson v. Entek Intern (9th Cir.2011) 630 F.3d 928, 937 .) In a recent opinion, the United States District Court for the Northern District of California addressed temporal proximity in meeting the third requirement. (See Adetuyi v. City and County of San Francisco (Case No. 13–cv–04273–MEJ).)
In Adetuyi, there was a five-year delay between the employee’s protected activity (i.e., a lawsuit against his employer and his former supervisor alleging harassment and retaliation), and the adverse employment action (i.e., his employer’s later decision declining to promote him). The court held that this large gap between the alleged adverse action and the protected conduct was not necessarily fatal. In this case the court held that it was possible to conclude that the retaliatory acts stemmed from his protected conduct where the employee had alleged a pattern of ongoing retaliatory acts since his 2007 lawsuit against his employer.
The fact that an employee engaged in protected activity that is linked to retaliation long ago does not automatically mean the employee cannot establish the third requirement, i.e., a causal link existed between the protected activity and the adverse employment action. While it may make meeting this requirement more challenging, a continued pattern of retaliation following that activity that extends over a long period of time as in Adetuyi could be sufficient to conclude that the retaliatory acts stemmed from his protected conduct.