Saturday, December 31, 2016

Retaliation and "Temporal Proximity"

Here's an interesting fact pattern from a recent federal appeals court case (Walid el-Sayed v. Hilton Hotels (10-453-cv, 12/17/2010)): 

Employee complains of a discriminatory work environment based on his race and national origin. Employer begins an investigation into the employee and discovers that the employee had failed to report a prior job with one of the employer's other hotels in his job application.  Three weeks later the employee is discharged from employment.  The employee claims it was in retaliation for complaining of the discriminatory hostile work environment.  The employer claims it was because the employee had ommitted the prior-employment information from his job application.

As discussed below, the Court dismissed the case finding that mere "temporal proximity" is not sufficient to prove a case of retaliatory discharge.

Both federal and state law protect employees from being retaliated against because they file complaints of discriminatory conduct about themselves or others.  The courts use a "shifting burdens" standard to determine if their are sufficient facts to allow a retaliation claim to go to a jury. This shifting burdens standard requires the employee to make out, first, a "prima facie" case which includes four components:

(1) The employee was engaged in protected activity, such as complaining of discriminatory conduct;
(2) The employer was aware of that activity;
(3) The employee suffered an adverse employment action; and
(4) There was a causal connection between the protected activity and the adverse employment action.
Once the employee makes out a prima facie case, the burden then shifts to the employer to:  articulate a legitimate non-retaliatory basis for the adverse employment action.  Employers often rely upon their personnel manuals for proof that their is a legitimate non-discriminatory basis for the adverse employment action.

Once the employer satisfies that burden, the burden shifts again, back to the employee to prove that the articulated reason for the adverse employment action is a lie -- that it is "pretext."  If that burden is met, then the case is allowed by the courts to proceed to a jury.

In the recent Second Circuit case, the Court found that the "temporal proximity," that is the short period of time between the complaint of discrimination and the adverse employment action is sufficient to show the fourth element of the prima facie case (a causal connection between the protected activity and the adverse employment action). 

The Court found also that the employer had satisfied its burden when it showed that the omission in the job application was a dischargable offense.

Once the burden returned to the employee to show pretext -- that the employer's reason is not the real reason --, the Court dismissed the case finding that temporal proximity, while enough to satisfy the prima facie case burden, was insufficient, with nothing else, to prove pretext. 

The Court explains: 
"The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation . . ., but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext." 
Keep in mind that these facts have two interesting distinctions.  First, there was no question that the employee engaged in the misconduct (omitting the information on his job application) that the employer used as its justification for the discharge.  Second, the employee conceded that omitting this information from his job application was a dischargable offense.

Nathaniel K. Charny

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