First Circuit Retaliation Update: Timing of Adverse Action Isn’t Enough to Impute Knowledge of Protected Activity to Employer

Retaliation cases often focus on the timing between an employee’s protected activity and an adverse employment action. The closer they are in time, the more likely it is that a jury could infer that the protected activity caused the adverse action (but not always). This causal link makes sense if there’s evidence that the employer actually knew about the protected activity when it took the adverse action. But what if that evidence doesn’t exist? Can the timing of an adverse action be used to infer that the employer knew about the protected activity and took action because of it? 

The First Circuit Court of Appeals recently tackled this question and answered it with a “no.” In Delaney v. Town of Abington, a police officer alleged that the Town of Abington retaliated against him because of a report he had made to the Massachusetts Attorney General’s office about the town’s traffic ticketing system. The district court granted summary judgment for the town because there was no evidence showing that the town knew about the officer’s report at the time of the alleged adverse actions. 

On appeal to the First Circuit, the officer pointed to evidence that he received a particular work assignment the same day he filed his report. He argued that the assignment was an adverse employment action and that a jury could have inferred that the town “knew that he had filed the report from the fact of this assignment.” 

The First Circuit disagreed. It noted that temporal proximity may be sufficient to establish causation where the “record independently provide[s] a basis from which a jury could reasonably conclude that the employer knew of the employee’s protected conduct at the time that the adverse employment action allegedly occurred.” But it rejected the officer’s argument that the temporal proximity of an adverse action can be used to infer that the employer knew about the protected activity and took action because of it.

EEOC Issues New Enforcement Guidance on Retaliation

Earlier this week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues.  The new guidance is the first update to the EEOC’s compliance guide on retaliation since 1998, and it marks the end of the process that began in January 2016 when the EEOC first proposed the new guidance.  The new guidance covers retaliation under each law enforced by the EEOC, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act.

The final guidance reflects the growing trend in retaliation claims – indeed, according to the EEOC, retaliation is the most frequently alleged basis of discrimination and is asserted in nearly 45% of all charges received by the agency.  The new guidance is not likely to slow this trend.  This is because it takes a broader view – and therefore a more employee-friendly view – on each of the three elements that an employee must prove to prevail on a retaliation claim: (1) protected activity; (2) an adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action.

For example, with respect to “protected activity,” the EEOC notes that this can include either “participating” in a complaint process under one of the laws enforced by the EEOC (such as by filing a complaint or serving as a witness), or reasonably “opposing” discrimination made unlawful by one of the laws (such as by complaining about allegedly discriminatory conduct or otherwise communicating a reasonable belief of a perceived violation).  The guidance, however, further clarifies that although protection for “opposition” is limited to those individuals who act with a reasonable belief that the alleged conduct is unlawful, “participation” in an EEO process – including the filing of an internal complaint – is protected regardless of whether the underlying allegation is based on a reasonable belief that discrimination has occurred or is likely to occur.  The EEOC does point out in the guidance that its interpretation does not give employees free rein to file baseless complaints without consequence, but it also cautions that employers who dole out those consequences unilaterally, rather than bringing evidence of bad faith to light in the context of the EEO process, will face greater scrutiny.

The guidance also sets a low bar for what can constitute a materially adverse action.  According to the guidance, a materially adverse action is any action that would reasonably be likely to deter protected activity, which includes not just obvious work-related employment actions like discharge, suspension, refusal to promote or hire, or work-related threats, warnings, and reprimands, but also actions that have no tangible effect on employment or that take place entirely outside of work.  This would include, for example, threatening reassignment, scrutinizing work or attendance more closely than for other employees, or making disparaging remarks about the person to others or the media.

The EEOC guidance offers some “promising practices” for employers to use to reduce the likelihood of a retaliation claim. Chief among those is a clearly written anti-retaliation policy that provides specific examples of what actions may constitute retaliation, as well as a clear explanation that retaliation can be subject to discipline, including termination. Clearly, though, none of these practices will insulate an employer from liability or the obligation to analyze potential retaliation issues on a case-by-case basis.

Social Media and the FMLA

Imagine for a moment: you are the administrator for a skilled nursing facility and your activities director has just informed you of a need to take FMLA leave for shoulder surgery.  You grant the FMLA request and your activities director takes the full twelve weeks he is allowed.  You then learn from his physician that he will need to extend his leave by an additional thirty days to complete physical therapy, which, of course, you oblige as non-FMLA leave.  Everything is fine – until you learn at some point during the director’s non-FMLA leave that he has been quite active and merry during his entire leave, evidenced by numerous Facebook posts showing him visiting Busch Gardens theme park in Tampa (twice), visiting St. Martin for several days, and posing by shipwrecks and cavorting in the ocean.  You learn he also may have been texting pictures of holiday decorations at Busch Gardens to his co-workers, ostensibly to share with them ideas for decorating the facility for the holiday season.  What do you do…what can you do?

This was the actual situation that faced the employer in a recent case from a federal district court in Florida, Jones v. Gulf Coast Health Care of Delaware, LLC.  Ultimately, the facility decided to terminate the activities director, believing that his Facebook and texting activity showed poor judgment as a supervisor and negatively impacted his co-workers.  The facility also claimed that the director’s conduct was prohibited by the facility’s social media policy, which prohibited any “social media usage that adversely affects job performance of fellow associates,” among other things.  The activities director – who later sued alleging FMLA retaliation – claimed that no specific violation of the social media policy was ever given to him as a reason for his termination and that, instead, he was told his was being terminated for abusing the FMLA.

In the end, the court found that the director failed to show causation – i.e. that he was retaliated because of his request to take FMLA leave – and that his retaliation claim therefore failed as a matter of law.  On this point, the court explained that the facility terminated the director for actions while on his FMLA and non-FMLA leave, not for requesting and taking the leave in the first instance, and that courts are generally not in the business of determining whether an employer’s personnel decisions are prudent or fair – as long as they comply with the law.

In this case, the court did not opine in detail on whether the facility’s social media policy tended to make its termination decision more fair than not – nor did it address the interesting question of how the facility actually obtained the director’s social media posts.  On summary judgment, the facts must be construed in the plaintiff’s favor and, in this case, the director disputed that he was told his termination was related to a violation of the social media policy.  Nonetheless, it is more likely than not that the facility’s social media policy would have substantiated its legitimate termination decision – just as it would tend to do for any other employer facing a similar situation.

NH Court Provides Guidance on Title VII Third-Party Retaliation Claims

The U.S. Supreme Court has made clear that a third party may bring a retaliation claim against an employer under Title VII, broadly interpreting the law’s prohibition of any employer conduct that might dissuade a reasonable worker from making or supporting a charge of discrimination.  It can be difficult for an employer to anticipate when disciplinary or other adverse action against a third party may lead to a retaliation claim, because the Court could not draw a line demarking who is in and out of this protected group.  The Court has provided some guidance, offering that termination of a close family member will almost always meet the standard while a lesser action against a mere acquaintance will almost never suffice, which leaves a wide swath in the middle.   A recent decision of the District of New Hampshire illustrates the difficulty of knowing when a third party is permitted to bring a retaliation claim.

In EEOC v. Fuller Oil (2014 DNH 20, decided 1/31/14), the Court permitted a retaliation claim to go forward where the terminated employee was within “the gray area between a close friend and a casual acquaintance.”  The employee was terminated within a few weeks after her co-worker served notice on the company of an intent to file a sexual harassment claim, which the employee claimed was retaliatory.  The two women had worked together at another company, the co-worker helped the terminated employee get her job at Fuller Oil, they exchanged cards on special occasions, socialized together outside of work, displayed photos of them together outside work, and were viewed by the employer as being friends.  As a result, the Court declined to dismiss the case at an early stage in the proceedings.

When taking adverse action against an employee who is connected to someone involved in a discrimination claim, employers must be mindful of the potential retaliation claim.  As it depends on the circumstances, employers must carefully examine the nature of the relationship between the two employees and consider whether the adverse action could be viewed as dissuading a reasonable worker from making or supporting a charge of discrimination.  If it could, extra care must be taken to ensure the legitimacy of the adverse action.

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

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.”