Is Closeness In Time Enough to Establish Retaliation?

August 01, 2007

Summary
One of the articles in our "Employment Law Briefing newsletter highlighting important issues in Employment Law, featuring the following articles: 1. No age discrimination when replacement not substantially younger 2. Be wary when dealing with perceived disabilities 3. Employer’s Employer’s failure to act on a complaint leads to Title VII liability 4. Is closeness in time enough to establish retaliation?

That was the question in Thompson v. Bi-State Development Agency. The Eighth Circuit considered whether an employee's previous discrimination lawsuits and his employer's disciplining him were close enough in time to constitute retaliation.

Suspension and retraining

A bus driver had an accident, his second within 12 months. While on sick leave for six months, he sued the bus line for racial discrimination and retaliation (his second suit against the bus line within the previous two-and-a-half years), and then returned to work with doctor approval.

In accordance with its employee guidelines, the bus line suspended the driver for five days and required three days' retraining, standard discipline for having had two accidents in 12 months. He declined the option of probation instead of suspension, told the union president he was tired of being harassed, and retired.

Five months later, the driver sued the bus line for racial discrimination and retaliation. He alleged that the discipline constituted retaliation against him for having filed two previous racial-discrimination and retaliation lawsuits. The court threw out the suit without a trial.

Shifting the burden

The Eighth Circuit noted that Title VII bars retaliation against an employee who files discrimination charges. To establish retaliation, plaintiffs must prove that:

  1. They engaged in Title VII-protected activity,
  2. Their employers took adverse employment actions against them, and
  3. The two actions were causally connected.

The Eighth Circuit found that the driver's lawsuits and the discipline were connected only by time - and the connection was weak. The court held that a mere coincidence of timing can rarely suffice to establish a submissible retaliation case.

A waste of time

The court noted that the driver's return to work was the first opportunity to discipline him for his accident. Doing that before he returned would have been a waste of time. The bus line followed its employee guidelines, and it would have disciplined him immediately after the accident had he not been out sick.

Furthermore, the court found no evidence that the discipline resulted from the filing of his second lawsuit while he was on sick leave. The court found it hard to imagine that the bus line would have bothered to reinstate him just so it could retaliate against him for having filed suit. The court concluded that the driver failed to establish a causal connection between the lawsuit filings and the discipline.

Employers, beware

Despite this ruling, savvy employers should proceed with caution when disciplining or discharging employees soon after they engage in protected activity. Other courts have held that closeness in time can suffice to establish a causal connection.

Sidebar: Similar situation - different outcome

In contrast to Thompson, the Eighth Circuit found that a temporal connection was enough to establish a case of retaliatory discharge.

In Peterson v. Scott County, an interim correctional officer started working in a county jail. Her supervisor and co-workers repeatedly subjected her to disparaging age- and sex-related comments. Four months after being hired, and again a month later, she complained to the jail administrator, who told her "maybe you should be somewhere else" and marked his calendar to dismiss her in two weeks, which he did.

The officer alleged discrimination and retaliation. The trial court threw out her suit but the Eighth Circuit held that the officer had established a retaliation case by showing that she had engaged in protected conduct (complaining about discrimination) and that she had suffered an adverse employment action (being fired). The court held that the timing of her dismissal - two weeks after the protected activity - was close enough to establish causation.