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Retaliation - Does timing matter?

No employment relationship lasts forever, and sometimes even productive employees are let go for legitimate business reasons. If the employee has complained of discrimination in the past, however, the company runs the risk of a claim that it retaliated against the employee for an earlier complaint. How long should a company wait to terminate a complaining employee for legitimate business reasons?

While the timing of the adverse employment action is important, especially to juries, evidence of "temporal proximity" by itself is not sufficient during the summary judgment stage before trial. Employees often point to such evidence to establish retaliation, but the Fifth Circuit has consistently dismissed cases where temporal proximity is the only evidence of retaliation unless it is very close in time to the protected act.

For example, in Strong v. University Healthcare System, L.L.C., a nurse coordinator claimed she was terminated for complaining about gender discrimination. 482 F.3d 802, 803 (5th Cir. 2007). As evidence of retaliation, the employee cited to the three and a half month time span between her complaint and termination. Id. at 807.

The Fifth Circuit stated the following in dismissing Strong's claim:

[W]e affirmatively reject the notion that temporal proximity standing alone can be sufficient proof of but for causation. Such a rule would unnecessarily tie the hands of employers. Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace. This is especially true for hospitals providing serious medical care to patients. Precedent does not prevent a hospital from removing such an employee simply because the employee engaged in a protected work activity months prior.

Id. at 808.

While every case is different, this language is valuable ammunition for employers fighting allegations of retaliation. Those of you who are interested can download a copy of the Strong opinion here.

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