In order to make a viable retaliation claim, a plaintiff must generally have evidence of each element of a what is called a prima facie case.  The phrase prima facie simply means “on first impression.”  In the employment law context, a prima facie case means the basic elements of a claim that, if true, give rise to an inference of discrimination or retaliation.  So for a retaliation claim, a plaintiff must usually show the following elements (1) that the plaintiff engaged in protected activity, (2) that the plaintiff suffered a materially adverse action, and (3) that a causal link exists between the protected activity and the adverse action.  If facts establish each of those elements, then under the law, an inference of retaliation arises, which the defendant must then rebut by producing a legitimate, non-retaliatory reason for the adverse action.  The purpose of this post is to briefly discuss what is necessary to show that third all-important causal link element under Fifth Circuit law.

The first thing that needs to be made clear is what level of causation is necessary to show the causal link.  The causal link standard is very low.  According to the Fifth Circuit, all a plaintiff must show to establish a prima facie causal link is that the protected activity and the adverse action are “not wholly unrelated.”  See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).  So how do you do that?

There are two main ways: (1) temporal proximity, (2) knowledge of the protected activity by the person who took the adverse action or recommended the adverse action.  See Teague v. Williamson County, No. 1:18-cv-1098-RP, 2020 WL 2542869, at *13 (W.D. Tex. May 5, 2019).

Temporal proximity is the easiest.  Under Fifth Circuit case law, if an adverse action happens within four months of a plaintiff’s protected activity, prima facie causation is established.  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.”).  If the adverse action happened more than four months later, temporal proximity can still be used, but generally a plaintiff will have to show minor actions over a period of time culminating in an actionable adverse action.  See, e.g., Zamora v. City of Houston, No. 4:07-4510, 2012 WL 4052884, at *6 (S.D. Tex. Sept. 13, 2012) (holding that a twenty-six month gap where the Plaintiff alleged a series of adverse actions spanning several years was sufficient to show a causal link); see also Starnes v. Wallace, 849 F.3d 627, 634-35 (5th Cir. 2017) (“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.”).

Knowledge of the protected activity by the person who made the adverse decision or recommended the adverse action is also usually easy to show.  For example in Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996), this was the only evidence needed:

The summary judgment evidence establishes that Long and Reavis filed complaints against Clark and Kelley, that Clark and Kelley had knowledge of these complaints, and that Clark and Kelley recommended that Long and Reavis be terminated after learning of these complaints. Accordingly, we have no trouble finding sufficient evidence, for prima facie case purposes, to establish a causal link between Long and Reavis’s protected activities and Clark and Kelley’s recommendations.

In another case, the Fifth Circuit found sufficient knowledge of the protected activity, where the decisionmaker actually sent in a response to the discrimination complaint.  Therefore, the court easily reasoned, the decisionmaker knew of the protected activity.  See Medina, 238 F.3d at 684.

There are, of course, other ways to show the prima facie causal link, such as a company’s departure from established policy or practice, as well an an employment record that appears to be inconsistent with the adverse action.  See Medina, 238 F.3d at 684.  However, these tend to be more fact-intensive inquiries that rely on the particulars of each person’s situation.  

If you think you’ve been unlawfully retaliated against because of protected activity, you should talk to an employment law attorney about what options may be available to you.

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.