Legal Alert: Fifth Circuit Reiterates that Temporal Proximity, Alone, Does not Establish Retaliation

Date   Apr 19, 2007


One of the toughest judgment calls an employer has to make is whether, and if so, when, to discipline an employee who previously complained of employment discrimination – either internally or by filing a charge or lawsuit. 


One of the toughest judgment calls an employer has to make is whether, and if so, when, to discipline an employee who previously complained of employment discrimination – either internally or by filing a charge or lawsuit. An employee who is disciplined or otherwise treated adversely shortly after exercising statutory rights will often claim retaliation. Giving some comfort to employers, the Fifth Circuit recently reiterated its earlier position, in agreement with several other jurisdictions, that a complaining employee cannot prove retaliation merely by showing that an adverse action occurred shortly after he or she complained of discrimination. See Strong v. University Health Care System (5th Cir. 2007).

In this case, the plaintiff, Strong, had been employed for two years as a nurse coordinator in the employer hospital’s liver transplant unit when, according to the court, “reports of Strong’s disruptiveness came from every direction at UHS: subordinates, equals, supervisors, and patients.” Between December 2003 and February 2004, she was the object of nine separate complaints. Shortly after these complaints began, Strong complained that one of the doctors had criticized her on several occasions because of her gender.

By early March 2004, Strong’s disruptive behavior included her refusal to follow repeated orders to check the status of a patient in the operating room. Another time, she was abusive and combative toward a supervisor, then failed to catch a potentially deadly error in a patient’s file. According to the employer, although Strong did not cause the error, she should have caught it. Strong was suspended with pay for poor performance and disruptive behavior. She claimed that the suspension was in retaliation for complaining about sexism three and a half months earlier. Two weeks later, the employer met with Strong to review the reasons for her suspension, but Strong provided no evidence that the real reason for her suspension was retaliation. After further investigation and deliberation, Strong’s supervisors collectively decided to discharge her based on all of the incidents described above.

Predictably, Strong sued the hospital for sex discrimination and retaliation under Title VII. The district court granted the employer’s motion for summary judgment on the sex discrimination claim because the doctor’s comments were not actionable, and on the retaliation claim because Strong failed to show that the employer’s stated reasons for her discharge were pretextual. Strong appealed only the dismissal of her retaliation claim. She claimed that she had shown pretext because other similarly situated employees who had not complained of discrimination had not been disciplined, and because the discharge occurred three and a half months after she complained about discrimination.

The Fifth Circuit upheld the trial court’s decision. After briefly demonstrating why the other employees cited by Strong were not similarly situated, the Fifth Circuit focused on Strong’s temporal proximity argument. It noted that the U.S. Supreme Court has stated that very close temporal proximity might be used to establish a causal connection between the exercise of statutory rights and an adverse action, but pointed out that this analysis was only for purposes of establishing a prima facie case of retaliation. If a complaining employee establishes a prima facie case, the employer must then articulate lawful reasons for its actions. A complaining employee will prevail only if s/he can demonstrate that the employer’s reasons are pretextual and that it would not have acted but for the employee’s exercise of statutory rights.

The Fifth Circuit stated that a rule that mere temporal proximity may be used to establish “but for” causation would “unnecessarily tie the hands of employers.” The court explained that employers have legitimate reasons for removing employees from the workplace and should not be prevented from doing so “simply because” an employee engaged in protected activity “months prior” to an incident that warrants discipline.

This case also illustrates how employers can prevail by following the four D’s of effective employee discipline: Discuss, Document, Delay, and Deliberate:

  • Discuss: The court observed that Strong’s supervisors had discussed nearly all of the many incidents described above with Strong as they occurred, in some cases before she complained of sex discrimination, making it unlikely that the employer’s reasons for discipline were pretextual.
  • Document: Similarly, the court noted with approval that the employer documented Strong’s many infractions, distinguishing another case in which retaliation was found partly because the employer produced no evidence of the employee’s alleged misconduct.
  • Delay: Although Strong repeatedly demonstrated disruptive behavior and poor performance, the employer waited until all reports had been investigated before making its final decision.
  • Deliberate: The court rejected Strong’s argument that the group decision by all of her supervisors was evidence of retaliation, stating that “collective decision-making is less susceptible to influence by an individual with a retaliatory motive.” 

Employers' Bottom Line: 

This decision provides some support for employers who are concerned about taking any adverse employment action after an employee has complained of discrimination or some other legal infraction. Employers should remember, however, that temporal proximity may still be some evidence of retaliation, which employers can counter by discussing, documenting, delaying, and deliberating prior to taking adverse action.

If you have any questions regarding this decision or other labor or employment related questions, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Judith Moldover, an attorney in our New York office, at 212-453-5923, or