The common logic is that firing an employee shortly after complaining about workplace discrimination isn’t a good look.
Indeed, the tighter the temporal proximity between the two events, the more likely the employee will perceive that the employer retaliated against them for their complaint.
But.
I read a commonsense Ninth Circuit decision last night in which a three-judge panel affirmed a lower court’s entry of summary judgment in favor of the employer in an action brought by an employee alleging Title VII retaliation following his termination. Indeed, just 56 days—less than two months—separated his discrimination complaint and termination of employment.
Yet, timing isn’t everything in establishing retaliation. The inquiry is fact-specific and usually depends on timing plus some other evidence supporting an inference of pretext — even when the timing is particularly tight, like a week or several days.
In this case, the defendant terminated the plaintiff’s employment after he did not cooperate with a workplace investigation into allegations of his misconduct. That’s a perfectly cromulent reason.
But the defendant had another ace up its sleeve to fend off the inevitable argument from the plaintiff that its reason for firing the plaintiff was a pretext to cover up unlawful retaliation. That is, revelations about the plaintiff’s misconduct arose during the same two-month period. The defendant argued that the plaintiff’s misconduct during that same timeframe (after he complained) defeated any causal inference that might otherwise follow from the temporal proximity between the plaintiff’s protected activity and his termination.
“When temporal proximity cuts both ways—i.e., an adverse action follows on the heels of both a protected activity and an independent reason for adverse action,” noted the court, “it might not be enough standing alone to establish pretext.”
That makes perfect sense, right? As I’ve often explained to employee audiences at “respect in the workplace” training, a complaint of discrimination does not immunize you from discipline for subsequent insubordination, poor performance, or violations of other rules.
In this case, the plaintiff’s failure to cooperate in his workplace investigation embiggened the defendant to end his employment, and the plaintiff’s argument that his termination was less than two months after he complained about discrimination was not enough, standing alone, to establish pretext.
Now, if I could only resonate with more employers that trying to terminate employees for undocumented poor performance and related incidents that precede an employee’s complaint of discrimination is bad business.