Experienced employment law attorneys understand that retaliation claims are often the easiest to prove and that the closer in time the protected activity is to the termination, the more likely a finding of retaliation. In Brown v. Children’s Hospital of Phila. 2013 U.S. Dist. LEXIS 12103 (E. D. Pa. (January 30, 2013)(Rufe, J.,) the Court found that FMLA and Title VII retaliations claims were viable and denied summary judgment where the Plaintiff engaged in protected activity shortly before her employment was terminated. In Brown, one month after a second application for FMLA leave, the Plaintiff received a written memorandum asserting problems with her performance, shortly thereafter received a Performance Improvement Plan and was terminated within three months of a second intermittent leave request. Plaintiff also testified that her managers requested that she not take FMLA leave unless she could secure coverage from another employee and that after the second FMLA request, the supervisors began picking apart her work
In retaliation cases the question is how close is close enough. In Brown, the Court noted that if the protected activity and the adverse action are so close in time to be “unusually suggestive”, an inference of discrimination may be raised. However, if the temporal proximity is not “unusually suggestive”, then a court looks to the evidence as a whole to determine whether an inference of discrimination has been raised. In Brown, the Court noted “unusually suggestive” is generally measured “in terms of a few days or perhaps a few weeks, but not, for example, two months.” citing, Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004). Thus, in Brown, where the termination occurred within less than three months of a second leave request, the Court found that for purposes of FMLA retaliation “timing plus other evidence may be an appropriate test” because the time period was not “unusually suggestive” but “somewhat suggestive.” The Court made this finding even though within ten days of the termination the Defendant received a race discrimination complaint Plaintiff had filed with the Philadelphia Commission on Human Relations. In Brown the Court found that the timing is somewhat suggestive of causation, and when considered with the overall circumstances, which include manager’s complaints about Plaintiff taking FMLA leave and a generally good record performance record prior to the leave; Plaintiff produced sufficient evidence to create an inference of a causal link between her seeking FMLA leave, her complaint about race discrimination and her termination.
Employment law attorneys need to keep in mind that in developing the facts, even where the protected activity is close in time to the termination of employment, it remains important to have more than just the timing of protected activity to prevail. Of course, when the protected activity occurs shortly before the termination, employees often are able to produce additional facts which when combined with timing allow Plaintiffs to prevail.
For more information on the FMLA, race discrimination, retaliation and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523.html, http://www.job-discrimination.com/lawyer-attorney-1126519.html, http://www.job-discrimination.com/lawyer-attorney-1126498.html