When Timing Isn't Everything: Court Finds that Timing of Termination Alone Fails to Establish Pretext for Retaliation

Tuesday, November 5, 2013

In many retaliation cases, the timing between a protected activity and an adverse employment action is an important factual issue.  To a large degree, this is a matter of common sense.  After all, when we think of cause and effect, we often think in terms of time and tend to assume that contemporaneous events are more likely to be related to each other than events occurring at more distant intervals.  It is no surprise, then, that employees often use (and courts often accept) evidence of close timing between a protected activity and an adverse employment action to satisfy the basic elements of a retaliation claim.

Yet evidence of temporal proximity only goes so far, as a recent decision from the U.S. District Court for the District of Massachusetts illustrates.  In Wagner v. Baystate Health, Inc., a hospital lab assistant claimed her employer retaliated against her for taking FMLA leave by reprimanding her six weeks after returning from leave and then terminating her two weeks later.  The court found that the timing between the lab assistant’s leave and her discipline was sufficient to make out a “threshold” claim for retaliation and that a reasonable jury, looking just at the chronology without any other explanation, could conclude that the hospital retaliated against the lab assistant for taking FMLA leave.  However, the court found that the timing alone was insufficient to establish retaliation once the hospital provided a reasonable explanation for its actions.  In this case, the hospital explained its actions by pointing to a history of increasingly negative performance evaluations and the lab assistant’s failure to improve her behavior even after being put on a performance improvement plan.  Given the hospital’s explanation for the sequence of events, the court found the lab assistant needed to provide some additional evidence, other than timing, to show how the hospital’s explanation was invalid.
Wagner provides additional support for the proposition that an employee must show more than temporal proximity to overcome an employer’s legitimate non-retaliatory explanation for an adverse employment action.  At the same time, the decision serves as an important reminder for employers to document employee performance and any resulting disciplinary issues.  In the absence of this documentation, a disgruntled employee may have a better shot at convincing a judge that, in fact, “timing is everything.”