Temporal proximity and Title VII retaliation

EEOC charge and retaliaton

Temporal Proximity and Title VII retaliation

We previously wrote here about Title VII retaliation claims. Today we look at the specific concept of temporal proximity in retaliation claims.

Scope of Title VII

Title VII is a federal law that prohibits various forms of discrimination in the work place.

In addition, Title VII prohibits retaliation against an employee who:

  • opposed any practice made unlawful by Title VII, or
  • made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII.

In many cases, employers retaliate against employees for making claims of discrimination or backing up other employees who do so.

And, when they do, they will claim that they took adverse action against the employee for reasons unrelated to the employee’s Title VII issue.

So, how does the employee prove that the real reason for the employer’s adverse action was retaliation?

That is where the concept of temporal proximity comes into play.

What is temporal proximity?

Temporal proximity is just a fancy way of saying that the employer took the adverse action not long after the employee’s assertion of her Title VII rights.

This can be illustrated with the recent opinion of the United States Court of Appeals for the Fifth Circuit in Brown v. Wal-Mart Stores East, L.P.

The facts in Brown

In that case, Ms. Brown claimed that she was fired after she reported that her supervisor was sexually harassing other employees. There was no dispute that Brown did, indeed, make such a report.

According to Wal-Mart, however, Brown was terminated because she violated Wal-Mart’s Investigation and Detention of Shoplifters Policy. Specifically, she questioned a customer about shoplifting in a manner contrary to the store’s written policies.

The Fifth Circuit explained that to prevail on her claim, Brown had the burden to make out a prima facie case of retaliation by showing:

(1) she engaged in a protected activity;

(2) she suffered an adverse employment action; and

(3) a causal connection existed between the protected activity and the adverse employment action.

If Brown made out her prima facie case, the burden would shift to Wal-Mart to provide a legitimate, non-discriminatory reason for the adverse employment action.

If Wal-Mart did that, then the burden would shift back to Brown to prove that the proffered reason was not true and was a mere pretext for retaliation.

“A plaintiff may establish pretext by showing that a discriminatory motive more likely motivated her employer’s decision, such as through evidence of disparate treatment, or that her employer’s explanation is unworthy of credence,” the Fifth Circuit explained.

This is where temporal proximity comes into play.

As the Fifth Circuit stated, at the prima facie case stage, a plaintiff can meet her burden of causation simply by showing close enough timing between his protected activity and the adverse employment action.

The protected act and the adverse employment action must, however, be very close in time to establish causation by timing alone.

Turning to the facts of the case, the Court noted that Brown made her first report to the Wal-Mart ethics hotline on March 28, 2017, seven weeks and three days before her termination, and she followed up on that report on April 4, 2017, six weeks and three days before her termination.

The Court held that “because the approximately six-to-seven-week gap between Brown’s protected activity and her termination is shorter than gaps that we have previously found sufficient to show a causal connection, Brown has met her prima facie burden based on timing alone.”

The burden shifts.

Thus, the burden shifted to Wal-Mart to provide a legitimate, non-discriminatory reason for firing Brown. Wal-Mart did so, meaning that the burden shifted back to Brown to prove that Wal-Mart’s reliance on the shoplifting policy was a mere pretext for firing her.

Brown’s burden again

Although the proximity between the dates of Brown’s report of harassment and her termination were enough to get her past the first stage (i.e., making a prima facie case), once Wal-Mart shifted the burden back to her again, something more was required.

The Court held: “The temporal proximity between Brown’s protected activity and her termination is relevant to, but not alone sufficient to demonstrate, pretext.”

The Fifth Circuit noted that some of the additional matters it had found to be sufficient to create a jury issue included:

(i) a dispute of facts leading up to termination, disparate treatment of a similarly situated employee, harassment from a supervisor following the protected activity, the stated reason for the termination being known to the employer for years, and the employer standing to lose millions of dollars if its conduct was discovered;

(ii) unfounded performance concerns, warnings from other employees not to engage in the protected activity, and disparate treatment; and

(iii) evidence of interference with an allegedly independent investigation, disingenuous and inconsistent explanations by her employer, and prior glowing reviews.

Inconsistent statements can also be indicative of pretext. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 236 (5th Cir. 2015).

In Brown’s case, however, the Fifth Circuit simply did not see sufficient evidence to suggest that Wal-Mart’s reason for firing Brown was merely pretexual.

Thus, Brown lost.

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