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Although Timing Isn’t Everything in Your New Jersey Retaliation Case, It May Still Be an Essential Key to Unlocking a Successful Outcome

Deciding to assert your rights through a legal action in court or with the Equal Employment Opportunity Commission can be very stressful. One thing you shouldn’t have to fear – but too many workers do – is that your employer will retaliate against you for taking that action. If your employer does that, then they may have created an avenue for you to add a retaliation claim to your complaint. An experienced New Jersey employment lawyer can help you identify when that has happened and what you can do about it.

There are several different forms of proof that can be the underpinnings of a valid retaliation claim, but one of the most persuasive ones can be the timing of events in your case. If you have evidence, for example, that your employer found out about your EEOC filing on January 29 and fired you on January 31, that may stand as powerful proof that your employer did not base that termination on legitimate reasons.

One of the most recent examples of this occurred far from New Jersey. D.W. was a dispatch supervisor for a local sheriff in Louisiana, and she was a Black woman. On Feb. 20, she gave her supervisor a doctor’s note that said that, due to her medical condition, she required three 24-hour shifts off every week.

On Feb. 22, D.W. was hauled before the disciplinary review board, ostensibly for sleeping while on duty, among other transgressions. Exactly one week later (and nine days after the dispatcher’s submission of the note,) she was fired. By contrast, a white male dispatch supervisor who was also caught sleeping on duty was not fired; in fact, he wasn’t even suspended. The sheriff testified that, in his recollection, no dispatcher had ever been fired for sleeping on the job… except for D.W.

These facts gave D.W. a viable case of retaliation. The timing of events (what the law calls “temporal proximity,”) spanning less than a week and a half from doctor’s note submission to termination, was clearly enough to make out a legitimate claim. As the court put it, the “near-immediate temporal proximity of the discharge to the protected activity leaves us with no room to doubt that [D.W.] has carried her summary-judgment burden of producing ‘substantial evidence’ that [the sheriff] would not have fired her but for her FMLA-protected activity.”

Success may require more than just proof of close temporal proximity  

It is important to make sure that you have all of your evidentiary “ducks in a row” to establish a winning case of retaliation in federal court. A 2019 case that originated in Pennsylvania went against the plaintiff employee because, while she had evidence of close temporal proximity, the other evidence worked against her. In that case, a shoe store manager was fired three weeks after she reported sexual harassment she encountered on the job.

The Third Circuit, whose rulings directly impact federal cases in New Jersey, Pennsylvania, and Delaware, stated that abnormally “suggestive temporal proximity between the protected activity and the adverse action can be sufficient” to establish a viable claim of retaliation. A span of months between the protected activity and the retaliatory adverse action is not “unusually suggestive.” A span of a few days, however, is.

The Third Circuit said that three weeks was “certainly a short period between the protected activity and the adverse action,” but the manager was unsuccessful, anyway. Why? For one thing, three of the four people who jointly made the decision to fire the manager had no awareness of the harassment complaint when the decision was made. It is very difficult to prove that someone punished you for exercising your rights if your case lacks proof that the decision-maker even knew that you’d exercised those rights.

Additionally, the manager’s supervisors had “received multiple complaints regarding her work and leadership before she reported the alleged harassment.” It is important to note, though, that just because you’ve been “in trouble” at work, that won’t automatically defeat your retaliation claim. As an earlier Third Circuit ruling made clear, your employer cannot allow certain small on-the-job transgressions to “slide” with little or no punishment and then, in the nearly immediate aftermath of you engaging in protected activity, turn around and fire you for a similarly minor infraction at work.

The shoe store manager, who was ostensibly fired for refusing a customer’s request to return a pair of shoes and for abusing the employee discount program, would have had a much stronger case if she could have established that all of the decision-makers had at least some knowledge of her harassment complaint and that the employer rarely, if ever, fired workers for infractions like rejecting a customer return request or misusing the employee discount program.

In some walks of life, they say that “timing is everything.” In your workplace retaliation case, timing may not be everything, but it certainly can be a crucial thing. When it comes to amassing and presenting your timing evidence, along with all of the other proof you’ll need for success on your retaliation claim, look to the skilled New Jersey retaliation attorneys at Phillips & Associates to provide you with the wise advice and determined advocacy you deserve. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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