You are about to enter another dimension. A journey into the world of discrimination and retaliation.
Consider, if you will, the case of an employee who suspects that he or she is about to be fired or demoted for misconduct or poor performance.
Hoping to derail that action, the employee makes an unfounded claim of discrimination, or requests protected leave.
Concerned about taking an adverse action immediately after such a claim or request, the employer relents and slips into the twilight zone between action and inaction.
For those old enough to remember, that might sound like a riff on Rod Serling’s introduction to the classic television series The Twilight Zone. Which it is.
But it is also a scenario explicitly recognized by the Supreme Court of the United States and multiple federal circuit courts of appeal.
Timing is everything. Except when it’s not.
When an employee suffers an adverse employment action immediately after engaging in a protected activity, the timing of the adverse action by itself may be enough to connect one to the other.
As the U.S. Court of Appeals for the First Circuit hypothesized in Germanowski v. Harris,
Imagine an employee with an unblemished record and steady performance who, shortly after requesting [leave under the Family and Medical Leave Act], is terminated without explanation. In those circumstances, the temporal proximity between the two likely would be sufficient to allege a plausible claim.
However, the court continued,
Imagine an employee shoots her boss, immediately asks for FMLA leave, and gets fired the next day. We would hope that our common sense would protect us from saying that the close proximity between the FMLA request and the termination makes retaliation plausible.
As the court recognized, to conclude that the timing of the shooter’s termination creates a retaliatory connection “is to suggest that common sense borne of real-world experience has no role to play” in the analysis.
Don’t you love good old common sense?
Using protected activity to ward off adverse action: The courts are onto it.
The facts in Germanowski revealed a longstanding dispute between the plaintiff and her supervisor. A dispute that the plaintiff claimed caused her numerous emotional problems, culminating in a nervous breakdown at work.
Upon the plaintiff’s return to work, the supervisor suspected that the plaintiff might be bringing a gun into the workplace. As a result, she instructed security to deny the plaintiff access to the building.
The plaintiff, suspecting her imminent termination, notified her supervisor that she would be out sick. She later claimed that this was sufficient to put the supervisor on notice that she was requesting FMLA leave.
According to the First Circuit, that sick call may have been sufficient to put the supervisor on notice that the plaintiff was requesting FMLA leave. However, the court said that her retaliatory discharge claim was still properly dismissed because the termination was already in the works before she made the sick call.
As the court recognized, the “FMLA is not a tool an employee can use to delay or avoid termination.”
That conclusion is not unique to the FMLA or the First Circuit.
For example, in Drago v. Jenne, the U.S. Court of Appeals for the Eleventh Circuit stated,
[W]e hold that, in a retaliation case, when an employer contemplates an adverse employment action before an employee engages in protected activity, temporal proximity between the protected activity and subsequent adverse action does not suffice to show causation.
In less legalistic terms, the court is saying that if the employer was already planning to take action against the employee (and can prove it), then the courts will not find retaliation based only on the fact that the action was taken after the employee engaged in the protected activity. Timing alone would not be enough to show that the employer took the action because of the employee’s protected activity.
Don’t be led into the twilight zone.
If you have made the decision to discipline or terminate an employee, and if the employee then engages in some type of otherwise-protected activity, do not get caught in the twilight zone between action and inaction.
Anti-retaliation statutes are not tools to be used by employees to shield themselves from legitimate employment actions
Consult with your employment counsel first, but seriously consider staying on track with respect to the adverse employment action.
Evaluate whether the employee can show anything more than “temporal proximity.”
If that’s all there is, don’t let the employee lead you into the twilight zone.