Most employment laws create and protect some right for workers.  Engaging in those rights is called “protected activity,” and retaliating against employees who engage in “protected activity” is generally prohibited.  Typical anti-retaliation provisions forbid employers from taking action against an employee for complaining that her rights were violated, for participating in an investigation or legal proceeding related to such a claim, or for protesting against such violations.

Often, retaliation cases are based on circumstantial evidence.  Usually, there is no smoking gun email in which the supervisor says, “Well, since that employee has complained of discrimination, let’s just fire him.”  Consequently, the plaintiff’s case is based on the facts and circumstances surrounding the employment action at issue.  Plaintiffs often point to bad timing as evidence of a retaliatory purpose for discipline.  A disciplinary action has “bad timing” if it occurs shortly after an employee has engaged in protected activity.

Unfortunately, bad timing can be sufficient to saddle the company with retaliation liability because it makes judges and juries suspicious.  Even if the employer has solid business grounds for discipline and claims the timing was merely a coincidence, we must always be mindful of an old lawyer’s rule of thumb: “Juries do not believe in coincidences.”  Consequently, the company’s burden to show it was not retaliatory is higher where bad timing is present.  The next two cases demonstrate how companies prevailed against disgruntled former employees’ retaliation claims by sticking to their processes and documenting along the way.

Case One: Title VII Retaliation

Nathaniel Stanley worked for Central Kentucky Community Action Council, Inc.  Stanley and his supervisor, Tracy Dennison, did not get along.  Eventually, Stanley complained that Dennison was discriminating against him on the basis of his gender.  Over the next two years, Stanley continued to complain about Dennison.

Eventually, Stanley was given a written warning for failing to report a threat against a coworker.  Upset about the warning, he filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming gender discrimination.  Shortly after he filed his charge, one of Stanley’s coworkers reported that Stanley had been making exceptionally rude comments about Dennison.  The Council’s investigation revealed that at least some of the allegations were true, so it fired Stanley.  Stanley added retaliation to his EEOC charge, which eventually ripened into a lawsuit.

The Lawsuit

The Council asked the Court to dismiss Stanley’s entire lawsuit.  According to his own complaint, Dennison was difficult with all her subordinates, regardless of their gender.  Consequently, the Court dismissed the gender discrimination claim because Stanley was unable to show that Dennison singled him out because of his gender.

The Court then considered Stanley’s retaliation claim but dismissed it as well.  The Court explained that a plaintiff cannot rely on bad timing alone unless the disciplinary action followed the protected activity very closely in time.  When an employee is terminated immediately after engaging in protected activity, the employee has no time to gather and present other evidence.  In that case, the employee has nothing but bad timing to support his case.  However, when some time elapses between protected activity and disciplinary action, the employee must bolster bad timing with other evidence to establish a retaliation case.  The Court held that nearly three months was sufficient time to require Stanley to show something more than bad timing.  Because he could not do so, his retaliation claim was dismissed.

Case Two: FMLA Retaliation

Carol Travis began working for an accounting firm in 2003.  Although her first performance appraisal rated her work “superior,” her performance declined over the years.  Eventually, supervisors became highly critical of her work.

In 2010, Travis took two periods of leave under the Family and Medical Leave act (FMLA) with the last period ending in May.  She returned as expected.  About a month later, Travis’ supervisor, Debbie Boyle, met with her to discuss errors in her work.  Boyle showed specific errors to Travis and suggested ways she could improve her performance.  The firm had a follow-up meeting with Travis in September.  She was again shown specific errors and coached for improvement.  Moreover, she was also told her performance was unacceptable and she was not making progress.  Travis was given similar warnings in a February, 2011 meeting.

Travis was fired for poor performance in April, 2011.  She sued the accounting firm, claiming it had retaliated against her for exercising her rights under FMLA.

The Lawsuit

The accounting firm asked the court to dismiss Travis’ complaint.  Like Stanley, Travis relied solely on bad timing to keep her case alive.  But, unlike Stanley, Travis’ time period was much longer.  Her employment was terminated in April, 2011 after returning from FMLA in May, 2010.  The Court found that nearly a year was too much for bad timing to be the sole basis of Travis’ lawsuit.  The court also specifically took note that Travis had numerous discussions with the firm about her performance and the company showed it had taken steps to retain Travis in each meeting by trying to bring her performance up to company standards.

Travis argued that the firm simply spent a year building a case against her to avoid liability.  However, given her lengthy history of declining performance, the Court found Travis’ issues arose long before she first took FMLA leave.

What Texas HR Professionals Need To Know

The Stanley and Travis cases give us insight into the way courts make decisions.  However, discrimination and retaliation cases always stand or fall on the totality of their own facts and circumstances.  For that reason, courts leave us with only vague rules, using phrases like “very close in time” and “some time.”  We know three months was long enough for Stanley to lose his case.  However, three months could be short enough to establish retaliation under other circumstances.  In contrast, Travis’ time lapse of nearly a year would not likely support a retaliation claim on its own given her lengthy, well documented history of poor performance.

Both cases demonstrated there is danger in rushing to discipline an employee who has recently engaged in protected activity.  However, there are important factors beyond the mere passage of time that made the employers successful.  First, they documented things as they happened.  Sometimes, employers do not document past issues until a supervisor is fed up and ready to fire someone.  To judges and juries, that can look like a trumped up charge rather than the fair and proper treatment of a former employee.

Second, both companies followed their own lawful, reasonable policies and procedures.  The Council investigated Stanley’s complaints.  It also investigated Dennison’s complaints.  It took apparently appropriate action in both situations.  Travis’ accounting firm did not pull punches in her performance appraisals and worked with her for months to get her performance back on track before it ended her employment.  In both cases, the employers could show that there was no connection between employee protected activity and subsequent discipline because they had significant documentation of unprotected activity connected to policies for which termination was appropriate.

Third, the employers investigated and addressed the matters they faced in a reasonable timeframe.  Companies look suspicious when they use an inappropriate time frame to address a problem.  It would look suspicious if one employee hit another with a baseball bat but the company did nothing for three months.  It would look suspicious if an employee was fired immediately upon discovery that she sometimes shredded documents that were not sensitive.  Performance improvement and disciplinary action should be rooted in a process that takes appropriate steps in an appropriate amount of time.

In short, you can often avoid the worst retaliation problems by methodically following your lawful policies and procedures if you document issues and decisions as they occur.  If you are uncertain about how to discipline an employee who has engaged in protected activity, consult with a qualified employment law attorney.