Thursday, March 24, 2011

How soon is too soon to fire a complaining employee?

More than three year ago, the 6th Circuit concluded that where an adverse employment action occurs very close in time after an employer learns of a protected activity, the temporal proximity between events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. Yesterday, in Hill v. Air Tran Airways [pdf], the same court used a three-day gap between a complaint of discrimination and a termination to reverse a trial court’s grant of summary judgment in a retaliation case:
Although prior to the incident on April 10, 2007, Hill had not formally complained about Thornton in over five months, it is undisputed that Hill complained about Thornton only a few days before the termination. Hill complained to Hughes about Thornton on April 10, 2007, the day of the last incident with Thornton and a few days before Hill’s termination on April 13. Hill also complained about Thornton in an email to Hughes on April 10, the same day Hughes recommended Hill’s termination. Although these complaints were informal, they are relevant to an assessment of temporal proximity.
No employee is bulletproof, and employers should not shy away from firing a deserving employee merely because the employee complained about discrimination. Indeed, some employees, seeing the writing on the wall, complain in an effort to save their jobs or create a lawsuit. However, if you are going to terminate an employee close in time to the exercise of protected activity (and three days is pretty close), you should be prepared for the retaliation lawsuit that is likely to follow.

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