The temporal proximity between an employee's protected activity -- taking FMLA leave -- and an employer's adverse action - firing - is strong evidence of causation and therefore of unlawful retaliation. Generally, the shorter the period of time between the protected activity and the adverse employment action, the stronger the inference of causation, that is, a causative link between the protected activity and the adverse employment action. The Sixth Circuit's recent decision in Wallner v. Hilliard Lyons, 13-6548 (October 31, 2014) considered how temporal proximity should be measured: should it be measured from when the employee first requests to take FMLA leave and her firing or should it be measured from when the employee returns from her FMLA leave and her firing. Choosing rightly the latter the Sixth Circuit reversed a summary judgment granted Hilliard Lyons by the district court.
Jeanne Wallner was a 27 year employee of Hilliard Lyons. In June 2009, she requested FMLA leave for knee replacement surgery; she submitted the appropriate documentation from her doctor that she would require leave for about two months, from August 11, 2009, to "approximately October 11, 2009." Wallner, in fact, returned to work earlier, on October 6, 2009. She was fired 9 days later. Wallner filed suit claiming that her firing was unlawful retaliation for her exercise of her rights to take FMLA leave. The district court tossed her case on summary judgment reasoning, among other things, that the temporal proximity was weak because it should be measured from when Wallner first requested FMLA leave in June and her termination some 4 months later, although that was right after she returned to work from FMLA leave.
The Sixth Circuit rejected the notion that Wallner's protected activity occurred and then terminated immediately upon her mere request for FMLA leave, explaining:
After all, if merely asking for FMLA leave is a protected activity, then surely actually taking the time off is, as well. Skrjanc, 272 F.3d at 314. The temporal proximity that is relevant to Wallner’s FMLA retaliation claim, therefore, is the length of time between when she was absent from work on FMLA leave and when she was discharged. This was a total of nine days, not four months. Thus, the inference of causality generated by temporal proximity is stronger than recognized by the district court.
So the rule recognized by this decision is simple and sensible: in a FMLA retaliation case, the temporal proximity between the employee's protected activity -- taking FMLA leave -- and the adverse employment action is first measured by the amount of time passing between the employee's return to work from FMLA leave and the adverse employment action.
The Sixth Circuit's opinion was authored by Circuit Judge Richard Griffin, who was jointed by District Judge Greg Van Tatenhove of the Eastern District of Kentucky; Circuit Judge John Rogers dissented.
