Timing may not be enough
When you are terminated from your job or experienced some form of adverse employment action (whether it be demotion, disciplinary action, or hostile work place), you may take at the possibility that these actions may be in response to something else.
In other words, if you have done something you were legally permitted to do or you are a member of a protected class (i.e. race, sex, age, etc.), you may consider the possibility that you were retaliated against by your employer.
However, retaliation is sometimes very tough to prove. The first portions of the analysis may be easy. Part 1 may require you to demonstrate that that you were conducting an activity that was legally protected (like participating in an investigation or refusing to do something illegal). Part 2 may require you to demonstrate some adverse employment action (like getting demoted or fired). Those two parts are usually the easiest. The hardest part is the last part where you must demonstrate that there is a causal link between the two. Now, after you’ve laid out your theory, the employer has the chance to come back and say “Hey, I had a legitimate reason for doing what I did”. Then, the ball is back in your court. You have to prove that the employers actions were pre-textual. In other words, you gotta show that the adverse employment action was done in an attempt to retaliate against you for your actions.
One thing that courts may take into consideration is timing. In other words, courts will look at when you did something and how soon after the action did the adverse employment action occurred. Alot of times, people get pumped up because they think that if something bad happens within a short period of time, this information will solidify their case and slam dunk the employer.
However, you gotta keep a few things in mind when looking at timing:
1) The longer the time, the tougher the case. The longer the time period elapses between the protected activity and the adverse employment action, the more difficult it is to prove a causal link. In other words, if you complain of sexual harassment in 2002 but nothing happens to you until you get fired in 2007, you are going to have a tough road to prove the complaint is tied to the firing.
2) You better keep clean. If you were a problem child before and the employer documented this before and they continue to document that you are a problem child, you may have a hard time distinguishing between the employer’s retaliation and the employer merely documenting your behavior.
3) No magical time. Always remember that timing is added factor that courts can consider. however, timing is not enough by itself to automatically slap culpability to the employer. it can be extremely persuasive but it is NOT an automatic win.
It’s important that you take the opportunity to talk to your attorney before moving forward so that you can get a true appreciation of how ‘timing’ may play a role in your case. You don’t want make too much out of your situation if there is really nothing there.
-
Brought to you by:
