One of the elements of every retaliation claim is that there must be a “causal link” between the employee’s protected activity and the adverse action. In previous blogs I have talked about the standard for determining whether a materially adverse action has occurred. In this blog, I would like to talk about one particular way of showing a causal link: timing.
In the Fifth Circuit when an adverse action occurs shortly after an employee engaged in protected activity, that timing alone can raise an inference that the protected activity caused the adverse action. Close timing in the Fifth Circuit has been held to be four months or less. See Evans v. City of Houston, 246 F.3d 344, 254 (5th Cir. 2001) (“A time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes.”).
But does it have to be so close in time to use temporal proximity to raise a fact issue regarding causation? The answer is no and there isa sizeable amount of case law on this issue. The main case on this issue is Starnes v. Wallace, which analyzed temporal connection as follows:
[W]hen it comes to timing, we have recognized that the prima facie case does not rigidly consider only one form of temporal connection. . . . Although Starnes was terminated more than a year after she engaged in protected activity, the termination occurred just ten days after Daybreak paid $40,000 to resolve the problem Starnes raised. The time when funds have gone out the door may be when the retaliatory impulse is strongest. The termination also came within a month of the meeting between Rich and Ludy, in which Rich heatedly blamed Starnes for the dispute over Vincent’s pay. Starnes v. Wallace, 849 F.3d 627, 635 (5th Cir. 2017).
Starnes is not an anomaly, but an established standard. Gee v. Principi involved an over two-year lapse between protected activity and non-selection for a position. In Shirley v. Chrysler First, Inc., this court found that a time lapse of fourteen months “did not absolve the defendant of its responsibility for retaliating against the plaintiff for her filing of an EEOC claim.” . In Zamora v. City of Houston, Judge Atlas found that a twenty-six-month gap where the plaintiff alleged a series of adverse actions spanning several years was sufficient to defeat summary judgment. Montgomery-Smith v. Louisiana Dept. of Health & Hosp., found six to seven years not between protected activity and adverse action not too remote.
The Montgomery-Smith case is particularly interesting. In that case, after the employee had engaged in protected activity, the employee’s supervisor told her that she would never receive another promotion again. Six to seven years then went by before the employee applied to two promotions for which she was qualified that were under that same supervisor. The supervisor denied the employee both promotions. Under those circumstances, the court found that there was a causal connection between the protected activity and the denied promotions even though over six years had passed.
In a case my firm currently has on appeal to the Fifth Circuit, we are arguing that there is a temporal connection between protected activity and an adverse action that occurred four years later. In that case, the supervisor our client made a complaint against in 2015 retired for several years before returning to supervising our client. Shortly thereafter, the supervisor ignored a directive from his superior and issued our client a reprimand that resulted in our client losing required certifications for his job and being transferred elsewhere. We are hopeful that the Fifth Circuit will agree and remand the case for trial.
If you think you have been the victim of retaliation at your place of employment, please contact a lawyer to discuss possible action. The lawyers at Wiley Walsh, P.C. have extensive experience in representing workers in retaliation claims.