The murky title necessitates explanation. Frankly, I wanted to avoid adding to the almost 3,000 blog posts, many of which are entitled "post hoc, ergo propter hoc." So, since one of the early episodes of the West Wing very effectively used this as an episode title, I can avoid a cliché and am given a painless way to define the Latin term.
In the West Wing episode, the President utters the phrase and when no one immediately answers, says "27 lawyers in the room. Anyone know "Post hoc, ergo propter hoc"? Finally, one answers, "after it, therefore because of it," which is as good a definition as necessary for this post.
The point is that while causation (which courts also refer to as a "nexus) requires the cause to precede the effect (at least in our universe) that doesn't necessarily mean that what happens before the effect is the cause and it is a "logical fallacy" to suggest otherwise. Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).
Logical fallacies, however, seems to be the norm for retaliation claims these days. For the last several years, the judges on the Sixth Circuit have engaged in an extensive and utterly pointless debate over whether "temporal proximity" alone justifies a rebuttable presumption that two events which are close in time and are therefore causally related. (Employment lawyers call this the prima facie case, which simply translates to "at first view : on the first appearance".) Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. Mich. 2008), admirably sought to reconcile the competing views but only seems to have agonizingly prolonged the dispute.
To be clear "temporal proximity" simply means "events near in time" but it has been so horribly misused (even being used in Mickey to refer to events that were not close in time) that it should be banished from the legal lexicon. For one, too close a focus on timing diverts attention away from other evidence that is likely to be much more probative of a retaliatory animus.
Where this intersects employment law is that employment discrimination claims necessarily determine causation. In discrimination claims, where causality focuses upon a person's status, timing is usually unimportant (except perhaps in disability discrimination claims). But in retaliation claims, where the causality focus looks to the relationship between two acts, timing takes on an importance it shouldn't.
A recent retaliation decision from the Tennessee court of appeals in Kinsler v. Berkline LLC, held post hoc reasoning applies to all types of retaliation claims in Tennessee. It relied upon Allen v. McPhee, 240 S.W.3d 803, 823 (Tenn. 2007), which had held "that close temporal proximity of a complaint and a materially adverse action are sufficient to establish a prima facie case of causation."
Philosophical and logical issues aside, one mistake many cases (including Kinsler) make is in ignoring what occurs before the supposed "cause" of the "effect." In Kinsler, for example, the employee claimed he had been unlawfully fired 3 days after he refused a workers compensation settlement. But the employee had been injured, sought workers compensation benefits and had filed some type of an action seeking to be paid comp benefits long before he refused the settlement. Those events were remote in time and an employer bent on retaliating against an employee who wants workers' compensation benefits might just as well have based a decision on those events as it did on the event that immediately preceded the firing.
Now, for all we know, the settlement was the "cause" of the employee's firing but there was no evidence of this other than the timing (according to the decision, at least) and the employee's supposition. But if that is all there is to go on, then it is just as reasonable to say seeking workers compensation benefits had no roll in the firing.
Those decisions which have held that temporal proximity, when coupled with "other evidence of retaliation", to quote Mickey, can show "causation" (and by that I still mean a rebuttable presumption of causation) may provide comfort to an employer's lawyer but are no better in rationale. After all, if there is "other" evidence of retaliation, what does it add to say there is or is not a "temporal proximity" between events?
Along these lines disciplinary action antecedent to the protected activity is oft overlooked in the "temporal proximity" analysis. This occurs, even though as the Supreme Court in Clark County School District v. Breeden, 532 U.S. 268, 273 (2001), explained, employers "proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." Or, as another court has said, "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87 (2nd Cir. 2001).
Or suppose that between the cause and effect, there is an "intervening" cause. Take Freeman v. Ace Tel. Ass'n, 467 F.3d 695, 696 (8th Cir. 2006), where the employee was fired three weeks after he told the board of directors that the company's mileage reimbursement policy might result in violations of federal income tax laws. While this sound pretty bad from a purely timing perspective, a week before the employee was fired, he sent the board a sworn statement admitting (as the board had suspected) that he had been in a sexual relationship with a female subordinate employee, lied to the board about it and had even used a company credit card to buy Viagra to continue the sexual relationship. Not surprisingly, the court held, the "intervening events undermines any causal inference that a reasonable person might otherwise have drawn from temporal proximity."
Where does this leave Tennessee employers? An employer that makes a "knee jerk reaction" is asking for it. A judge and jury don't need "temporal proximity" to understand an employer's motive when the employer fires the employee right when the employee complains. And whatever philosophical problems there may be with "temporal proximity," it is not smart to hand an employee a termination notice soon after the employee complains unless the employer has antecedently documented the employee's misconduct or an event after the complaint clearly justifies the action.
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