Retaliation Ten Years After The Fact Too Removed In Time

James Stout was hired by the City of Wagoner, Oklahoma as a police officer in 1985. In 1995, Terry Hornbuckle successfully campaigned for Chief of Police over the incumbent, Jim Parker. During the campaign, eight Department employees, including Stout, ran an advertisement in the local newspaper indicating they did not support Hornbuckle’s campaign for Chief of Police.

Shortly after being elected, Hornbuckle offered to promote Stout to lieutenant, an offer Stout declined because “he was afraid that in light of Hornbuckle’s animus, he was being set up for disciplinary action.” Stout eventually did accept a promotion to the position of lieutenant.

In 2005, Stout was investigated for failing to properly respond to a domestic violence call. Among the allegations were that, in spite of signs of physical injury to the victim’s head, Stout did not look in the victim’s apartment to determine if the suspect was still present and did not write the police report, telling the victim instead that if she desired to fill out a police report she could come to the police station. When the investigation resulted in termination, Stout sued the City alleging, among other things, that his termination was in retaliation for his participation in the 1995 advertisement opposing Hornbuckle.

A federal court dismissed Stout’s free speech claim. Citing a string of other cases, the Court found that “the mere temporal proximity of protected speech to the adverse action is insufficient, without more, to establish retaliatory motive. This Court refuses to entertain Stout’s claim based purely on speculation that Hornbuckle harbored resentment and animosity for ten years, only to finally terminate Stout in 2005. The reason a lapse of time would tend to establish that retaliation was not a motivating factor is that anger or resentment – the motivation for possible retaliation – is an emotion that tends to diminish with time. When retaliation for an act occurs well after the act, one wonders why the retaliator failed to act sooner.”

Stout v. City of Wagoner, 2008 WL 2565001 (E.D.Okla. 2008).

NOTE: In a case decided roughly at the same time, a federal court in Connecticut held that “no reasonable jury could consider the five years between the conclusion of the previous litigation filed by the police officer and the investigation in question to be sufficient to warrant an inference that the protected speech was a substantial motivating factor behind the employer’s decision.” Giglio v. Derman, 560 F.Supp.2d 163 (D.Conn. 2008).

This article appears in the October 2008 issue