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The Practical Employer

Timing is Everything When Defending a Retaliation Claim

If you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row.

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on Jan. 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on Jan. 19, and was scheduled to return to work on Jan. 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

In ruling, the court relied heavily on the close temporal proximity between Valle’s FMLA leave and her termination.

Plaintiff’s allegations establish a close temporal proximity demonstrating a causal link between the protected activity and the adverse employment action. Plaintiff requested FMLA leave on January 14, 2016. Shortly thereafter, defendants approved plaintiff’s FMLA leave. Plaintiff began her FMLA leave sometime around January 19, 2017, and was scheduled to return on January 29, 2016. Defendants terminated plaintiff’s employment on January 27, 2016, two days before she was scheduled to return. Thus, we find that this adverse employment action, which occurred eight days after plaintiff’s FMLA leave period began, is unusually suggestive of discrimination. …

Plaintiff claims that the “most telling” evidence in this case is that Defendant Steltz testified that the first time the alleged threats came to light was when plaintiff was out on approved FMLA leave.

If you are going to terminate an employee on the heels of any protected activity, you best have all of your ducks in a row. Employees who engage in protected activity aren’t bulletproof from termination.

But you better be sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Valle.