When a court evaluates whether an employer has retaliated against an employee for taking medical leave, it often considers “temporal proximity”—that is, how soon an adverse action followed leave or a leave request.
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And while there is no bright-line rule for just how close those events need to be to suggest retaliation, a span of 7 months is definitely too long, the 6th U.S. Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—held in Tennial v. United Parcel Service, No. 15-6356 (6th Cir. Oct. 24, 2016).
Facts of the Case
William Tennial worked as a manager for UPS. When things became tense at work, in part due to his own performance deficiencies, he requested Family and Medical Leave Act (FMLA) leave for stress, depression, and anxiety.
UPS granted his request and Tennial took leave through the holiday season. He eventually returned to work but a few months later was placed on a performance improvement plan. When he failed to meet the plan’s goals, UPS demoted him.
Tennial sued, alleging several employment law violations, including race discrimination. He admitted that he had performance deficiencies but said that his work was on par with his white coworkers, none of whom were subject to similar disciplinary measures.
Among other claims, Tennial also alleged that his demotion was taken in retaliation for his taking FMLA leave during a busy season for UPS.
A federal district court dismissed his claims and he appealed.
Appeals Court Weighs in
On appeal, the 6th Circuit determined that UPS’ reasons for his demotion were legitimate and nondiscriminatory.
The employer had documented numerous performance issues and was able to show that, despite warnings, Tennial failed to correct them. Moreover, the court said, the four white coworkers that Tennial pointed to were not similarly situated. “[N]o reasonable jury could find any of these candidates to be adequate comparators,” the court said.
Additionally, the court determined that a 7-month gap between Tennial’s return and his demotion was too long to support an FMLA retaliation claim. “Temporal proximity of more than six months, standing alone, has not been found to support an inference of retaliatory discrimination absent other compelling evidence,” the court said, citing its own precedent in Nguyen v. City of Cleveland, 229 F.3d 559, 566–67 (6th Cir. 2000).
Employer Takeaway
The 6th Circuit isn’t alone in its position, according to Jeff Nowak, a partner at Franczek Radelet and author of the blog FMLA Insights.
“Courts regularly find that a significant gap in time—often three to six months—between the request for or taking of FMLA leave and termination is not enough itself to support an inference of retaliation,” he said. Many say 3 months, but certainly most, if not all, agree that 6 months is too remote, Nowak added.
For employers, this means that documentation is key. “Although employers should be mindful of the close timing of a personnel action in conjunction with FMLA use,” Nowak said, “it is critical that they have properly documented the reasons for termination and the decision-making process to best ward off an FMLA retaliation claim.”