Yes. Discrete conduct occurring outside the statute of limitations can be offered as circumstantial evidence of retaliation. For example, if a supervisor threatens to terminate the employment of a whistleblower if the whistleblower raises additional compliance concerns and the supervisor ultimately carries out the threat, the threat itself is relevant to prove retaliation even if it was made outside of the statute of limitations period.
And non-discrete conduct that occurred outside of the statute of limitations can be relied upon to prove retaliation when the earlier conduct only became actionable once other conduct occurring within the limitations period occurred. See Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S. 101 (2002). See also Talbot v. Village of Sauk Village, 1999 WL 286089, 1999 U.S. Dist. LEXIS 6574 at *1 (N.D. Ill. April 27, 1999) (noting “the too-often encountered confusion between matters that are not actionable because they antedate the time frame prescribed by Title VII and the mistaken notion that they are not admissible in evidence to show the employer’s Title VII-prohibited discriminatory intent.”).
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