I’ve got some ‘splaining to do before we get into the meat and potatoes.
First, if a company fires someone because they complain about discrimination, that’s retaliation. It doesn’t matter if the firing happens a day, week, month, or year later. If the complaint motivates the adverse employment action, and you get sued, get out your checkbook.
Second, I’m not giving specific legal advice. Depending on any number of variables, including where your business operates, your mileage may vary based on timing alone.
With those disclaimers out of the way, I want to tell you about this recent Third Circuit decision that recounts the events of May and June 0f 2017 at an oil and gas company.
On May 8, 2017, the plaintiff was standing in the doorway of an office talking to two colleagues when another colleague grabbed or poked his butt. The next day, the plaintiff complained to HR, which investigated and issued a written warning that further inappropriate touches may result in termination of employment.
The plaintiff did not believe the written warning was severe enough, so twice more, on May 15 and May 30, he complained that the company should have fired his coworker. But, the initial discipline stood.
At the same time, the defendant hired a new regional manager. And, you know the story: when a new sheriff is in town, changes follow. And sure enough, after a management assessment in early June 2017, the company terminated the plaintiff and another manager on June 27, 2017.
The plaintiff claimed retaliation. But, all he had was his say-so and timing.
Unfortunately for the plaintiff, unsupported assertions, conclusory allegations, or mere suspicions that an employer manufactured a termination to retaliate are insufficient to advance a case to trial.
But suspicious timing alone can get you there.
The plaintiff was fired on June 27, 2017. That was seven weeks after he complained of the misconduct on May 8, six weeks after his first complaint on May 15, and four weeks after his last complaint about the deficient discipline on May 30.
Are four weeks suspicious enough? Nope.
According to the Third Circuit, “even the most generous reading of the temporal proximity is not, on its own, unduly suggestive of a causal link.” Heck, three weeks isn’t unduly suggestive.
The next day? Sure. Two days? That too.
But even a termination a day or two later isn’t automatically retaliation. The plaintiff still bears the burden of proof there.
If you have to fire someone after they complain about discrimination, try to wait a few weeks. And make sure that you have a legitimate business reason to end their employment — one that has nothing to do with the underlying complaint.