The Sixth Circuit recently published yet another opinion to clarify the role of temporal proximity in the analysis of an employee retaliation claim. When an employee engages in protected activity, such as reporting unlawful harassment, and faces an adverse employment action shortly thereafter, the “temporal proximity” between the two events serves as evidence of causation when the employee files a retaliation claim. In Montell v. Diversified Clinical Services, the Sixth Circuit acknowledged some intra-circuit confusion as to whether temporal proximity alone was enough to demonstrate that the protected conduct caused the adverse employment action, and stated that “temporal proximity alone can be enough” to establish causation, reversing a grant of summary judgment in favor of the employer.
However, the facts of the case and the court’s own qualifications indicate that plaintiffs should not rely on temporal proximity alone to get them past summary judgment. First, the court’s broad pronouncement arguably turned to dictum when it acknowledged that “Montell does not rely on temporal proximity alone,” and pointed to two specific post-protected-activity “efforts” by Montell’s supervisor to “undermine Montell at her worksite.” Second, the court emphasized the degree of temporal proximity as key to establishing causation, and Montell faced her adverse employment action “the very next day” after engaging in protected activity. A slightly more patient employer could easily distinguish this case.
On a separate note, this decision underscores how crucial it is for employers to not only keep a written record of poor performance, but to actually read that record and behave consistently with it. Montell’s employer attempted to argue that its firing of Montell had been “previously contemplated,” which would have made Montell unable to rely on temporal proximity, regardless of how quickly she was fired. And indeed, there was an extensive written record, “includ[ing] a PIP, documented oral counseling and development plan, a Final Warning, and an Amended Final Warning,” and demonstrating “that before each step was taken, there was discussion and consultation.” That painstakingly laid paper trail was of no use, however, because the Amended Final Warning specified that Montell had until June 2, 2011 to improve or face termination and she was fired on May 20, 2011. Thus, the court concluded that her firing “d[id] not accord with either the timing of the termination previously contemplated or with the manner in which that decision was being made.” Had the employer simply reviewed its own performance records and waited two more weeks to discharge Montell, its grant of summary judgment might have remained intact.