- A former Quest Diagnostics employee did not plausibly allege that the employer retaliated against her for taking Family and Medical Leave Act (FMLA) leave when it fired her five months after her leave ended, a district court concluded (Strong v. Quest Diagnostics Clinical Laboratories, Inc., No. 19-cv-4519 (N.D. Ill, Feb. 2, 2021)).
- The plaintiff worked for Quest for many years and took FMLA leave three times. When she returned from one 12-week leave, she was told that a new employee had filled her position and that she was being transferred. Quest fired her several months later, citing performance problems.
- The district court held that the five months between her return from leave and termination was too long to suggest a causal link between the two events and dismissed the plaintiff's clams.
The court in this instance noted that evidence of causation can include "factors such as suspicious timing, ambiguous statements suggesting retaliatory intent, evidence that the formal reason for termination was pretextual, or disparate treatment of similarly situated colleagues."
Experts have noted that a close relationship in time between the protected activity and an adverse employment action can suggest unlawful retaliation. For example, a Philadelphia fitness instructor fired hours after letting her bosses know that she had filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) was allowed to proceed with her claims of retaliation and bias. On the other hand, the 11th Circuit has said a termination that occurred eight months after a worker filed an EEOC complaint wasn't retaliation.
If an adverse employment decision closely follows protected activity, employers need to take careful note of the facts justifying the discipline, sources have said. Without thorough documentation of an adverse employment action, workers may be able to establish a prima facie case of retaliation based on timing alone.
Experts also recommend that training for managers include an anti-retaliation component.