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Most employers are not going to tell an employee that they are being written up or wrongfully fired because he or she reported race/color, religion, age discrimination or because the employee opposed sexual harassment. (Best Law Read: What Are Examples Of Unlawful Retaliation At Work?). At the same time, many employees have attempted to use complaints of discrimination or harassment to avoid or stop ongoing poor performance issues or because they see the writing on the wall regarding forthcoming discipline or termination.

So, how does a court determine whether a write-up or termination happened because of the employee’s report of discrimination or harassment? This is what attorneys call the element of causation.

Recently, in Bullock v. Kendall, No. 21-2111, 2022 WL 2828221 (4th Cir. Jul. 20, 2022), United States Court of Appeals for the Fourth Circuit addressed the link between a protected activity and an adverse action. Ester Bullock was a civilian employee with the United States Air Force at Shaw AFB near Sumter, South Carolina. In June 2013 and September 2013, Bullock’s supervisor gave her progress reviews that criticized her work performance and led to a Letter of Caution being placed in Bullock’s personnel file in November 2013. In December 2013, Bullock filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).

After participating in mediation and resolving Bullock’s original charge of discrimination in January 2014, two months later Bullock’s supervisor issued Bullock a Notice of Proposed Reprimand, alleging poor work performance that occurred between November 21, 2013 and January 9, 2014. Some instances occurred before Bullock filed her charge, the remainder occurred before the mediation. However, this proposed reprimand was withdrawn as part of the settlement agreement that finalized the resolution of the mediation. By April 1, 2014, all charges and discipline had been resolved.

In May 2014, Bullock received another poor performance evaluation and was put on a Performance Improvement Plan. Bullock filed a new charge of discrimination in July 2014 which proceeded to investigation. On October 2, 2014, Bullock’s supervisor issued a Notice of Proposed Removal, recommending that Bullock be terminated, for failing to meet the expectations in the PIP. Bullock ultimately decided to retire on March 26, 2015.

Bullock sued in federal court for retaliation under Title VII. She alleged that the withdrawn Notice of Proposed Reprimand from March 2014, the negative performance review from May 2014 and PIP that followed were retaliation for filing with the EEOC and resolving her charges against the Air Force and were the basis of her supervisor’s October 2014 recommendation that Bullock be terminated.

What employment laws protect against retaliation?

Best Wrongful Termination Lawyer Answer: Pretty much all of them, including Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA”), Family and Medical Leave Act (“FMLA”), Fair Labor Standards Act (“FLSA”), and Age Discrimination in Employment Act of 1967 (“ADEA”). (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; Employers Cannot Retaliate Against Spouses, Siblings, Significant Others; Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?). All of these laws are designed to specifically protect any employee that makes a report of discrimination or harassment; opposes such conduct; or participates in an investigation into discrimination or harassment.

To make a prima facie claim for retaliation under the legal theory that Bullock pursued, Bullock had to show that show (1) that she engaged in protected activity; (2) that her employer took a materially adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action. (Best Law Read: What Does Prima Facie Mean?; What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?).

Showing the first two elements, a protected activity and an adverse action, was pretty straight forward in this case as she filed charges of discrimination with the EEOC and received disciplinary action, including being placed on a Performance Improvement Plan. However, the link between them is crucial and makes up the third element.

What is a causal connection?

Best Job Retaliation Attorney Answer: A causal connection is a link between the protected activity and the adverse action – it shows that the adverse action would not have happened if the protected activity was not done. There are two ways to show a causal connection. The first is if the report and the adverse action are closely related in time. This is called “temporal proximity.” The second is to show that there are other facts, on their own or closely related in time, that demonstrate a link between the report and the adverse action, such as comments or more favorable treatment to similarly situated employees who did not engage in protected activities.

Why is temporal proximity important?

Best Wrongful Termination Law Firm Answer: The District Court of South Carolina held that because Bullock filed with the EEOC in December 2013, her poor performance evaluation in May 2015, five months later, was not closely tied in time to her protected activity, the filing of the first EEOC charge. Specifically, the District Court of South Carolina held:

“To establish the necessary causation for a retaliation claim, “the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity.” Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original). “[C]lose temporal proximity between activity protected by the statute and an adverse employment action may suffice to demonstrate causation.” Waag v. Sotera Defense Solutions, Inc., 857 F.3d 179, 192 (4th Cir. 2017).

As the Court has already noted, Bullock filed her first EEO complaint on December 19, 2013. Her May 13, 2014, poor performance evaluation came almost five months later. “The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be “very close[.]” Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001).

A lapse of two months between the protected activity and the adverse action is sufficiently long so as to weaken significantly the inference of causation. King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003).

Thus, Bullock’s May 13, 2014, poor performance evaluation, almost five months after her December 19, 2013 EEO complaint, fails to suggests temporal causality.

Bullock appealed the decision to the Fourth Circuit Court of Appeals. The Fourth Circuit agreed with the District Court, and also noted that the documentation of Bullock’s poor performance began before she engaged in the protected activity of filing with the EEOC: “Here, while there was a gap of several months between Bullock’s initial internal complaint and the alleged adverse actions, the internal mediation process occurred closer in time to them, and the ‘[t]ypes of indirect proof to be considered in finding a causal nexus may include the temporal proximity of factual hearings regarding discrimination complaints as well as the actual date of filing.’ Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994). Yet, the allegedly adverse actions-a notice of proposed reprimand, a poor performance review, and placement on a performance improvement plan-all occurred after Bullock’s supervisor had warned her of her poor performance.”

This really comes down to a commonsense issue. When the adverse conduct starts before the protected activity takes place, the protected activity cannot be the motivation for such adverse employment actions because such activity hadn’t happened yet. Courts will then see that the continuation of the adverse activity against the employee as being based on the same non-retaliatory reasons used before the protected activity was taken. “Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Francis v. Booz, Allen &Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (internal quotation marks omitted).

In our example case, Bullock’s supervisor began documenting her performance issues several months before she engaged in protected activity for reporting discrimination. In the next several months but still before the protected activity, her supervisor then issued two progress reports documenting Bullock’s deficiencies. He then wrote a letter of concern one month prior to Bullock’s discrimination complaint further documenting her performance deficiencies. Since all of these performance issues occurred before the protected activity, the protected activity could not form a retaliatory basis for the negative performance reviews.

Based on this, the United States Court of Appeals for the Fourth Circuit held: “In light of these documented deficiencies, all of which occurred before Bullock’s internal complaint, we conclude that Bullock cannot establish causation. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (“[A] complaining worker is not . . . insulated from the consequences of . . . poor performance.”).”

Now, this case may have turned out differently had the employee been able to point to other supporting evidence, but she just relied on temporal proximity.

How do I sue my former employer for wrongfully firing me because I made a protected report of discrimination?

Best Employees’ Rights Lawyer Answer: Don’t try and figure this one out on your own. As you can see, each case of retaliation presents distinctly different issues and requirements. Your best course of action to hire a law firm that has the experience and focus in employment law as well as the resources to prosecute your case. If you reported discrimination and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, or even think that you might need a retaliation lawyer, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Make a call right now to our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Raleigh, and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting workers that report discrimination.

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