Timing Is Important with Respect to Employment Actions

A recent decision from the United States District Court for the District of New Hampshire is a good reminder that both employers and employees should be mindful of the concept of a “temporal link” between any adverse employment action, such as a demotion or termination, and protected employment action.

If an employee has partaken in protected activity, such as filing a complaint or making a request for reasonable accommodation or even taking or requesting leave, and the employer chooses to take an adverse action against the employee, there may be a temporal link that the Court infers in a retaliation claim between the two actions based on the timing.  In Fireside v. College for America, Southern New Hampshire University, 17-cv-374-LM, 2018 DNH 021 (February 27, 2018), Melissa Fireside, who was working for SNHU when she applied for a full-time team lead position.  Allegedly, during the interview Ms. Fireside told SNHU that she was pregnant and her due date.  Ms. Fireside alleges that SNHU asked her how much time she needed for maternity leave and then SNHU did not hire her, telling her that her due date would interfere with the position start date and training period.  Ms. Fireside filed a charge of unlawful discrimination with the EEOC and then applied for a different full time position with SNHU, which again she did not receive.

One of the claims made by Ms. Fireside was for retaliation.  As one of the elements to prove a case of retaliation, Ms. Fireside needed to show a causal link between the protected activity, filing an EEOC complaint, and the adverse action, not being chosen for the second position.   The Court held that this link could be inferred through timing because the adverse action followed the protected activity.  Courts call this temporal proximity.  In this case, less than two months passed between the complaint filed by Ms. Fireside and SNHU’s denial of her application for the second position.  Usually such temporal proximity is enough to have the employee’s retaliation claim survive a motion to dismiss, but it is not always enough to prevail on summary judgment or at trial.  Temporal proximity is not a defined period, and courts have looked at 4 months, and even 6 months, as being close enough to support a temporal link.

Thus, any adverse employment action must be viewed together with the protected activity taken by the employee in past 6 to 12 month period to determine whether such action could be subject to a temporal link in any future retaliation suit.  Whether temporal proximity is enough to show causation in a motion for summary judgment or at trial is another legal issue, but such temporal proximity is enough to create a costly and lengthy litigation.

About the Author: Jennifer Eber

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