The Latin expression “post hoc, ergo propter hoc” (“after this, therefore because of this”) is often cited as justification for claiming retaliation when an employee is fired within a month or two of filing a workers compensation claim, returning from a FMLA leave, or reporting allegedly illegal activity.
Recently, however, the Eighth Circuit Court of Appeals (which hears cases arising in Minnesota) ruled that where two months separate the protected activity and the termination, the employee needs more than the mere sequence of events to establish a connection between the two events.
This Will Be the Last Time
Mary Ellen Sisk, a Studio Manager at a Picture People retail store, took a 10-day leave under the Family and Medical Leave Act (FMLA) on June 3rd due to hip pain. During the leave, her condition worsened and she ended up having surgery on both hips, requiring that she remain off work for an additional 8 weeks.
Sisk returned to work with no restrictions but apparently struggled enough that co-workers immediately expressed concerns to management. On her third day back, company managers expressed concerns about Sisk’s health, asked her to return to her doctor and suggested that she should think about quitting and then reapplying when she was truly healthy enough. Sisk got up, tore up her name tag and walked out, believing she had just been fired. She sued the company in federal court for FMLA retaliation and appealed to the Eighth Circuit after her case was dismissed before trial.
The key to a retaliation claim is proof of a connection between the protected conduct and the adverse action (i.e., the “causal connection”). Sisk confidently asserted that the timing of the constructive termination — just three days after her return from leave — was sufficiently suspicious to allow the connection to be made. The appeals court disagreed, explaining that where timing is the only factor connecting the protected activity and the adverse action, the law must evaluate the employer’s actions when they first learn of the protected activity, not when that activity actually takes place or concludes. Therefore, the question to be addressed was whether a constructive termination occurring more than two full months after the employee begins an FMLA leave could establish a causal link between the two.
The Court noted that in previous cases of this type, they had ruled that a two-week separation might be “barely enough” to establish a connection, and that one month was too long. As such, the separation of two months in this matter was clearly too great to establish a causal connection between the two events and the dismissal of the case affirmed accordingly. Sisk v. Picture People, Inc., Case No. 10-3398 (8th Cir. Feb. 28, 2012).
Bottom Line
Employers should always give careful consideration to how it will look when they terminate an employee soon after he or she engages in protected activity. This case tells us, however, that as long as there is nothing to support the retaliation claim other than the Latin phrase quoted earlier, the employer will have a very respectable case and should end up happy.