TIMELINE IN RETALIATION CASE

The 8th Circuit made its position quite clear in respect to standards for retaliation claims in violation of the Family and Medical Leave Act (FMLA). The employee involved was a Photography Studio Manager. She damaged her hips and ultimately had surgery and was cleared by her surgeon after 11 weeks, even though the physician understood she needed to climb ladders and had much squatting and rolling on the floor to take pictures. Upon return, however, she refused to go on ladders and asked others to pick things up for her. She went to a meeting and was told that she needed to return to her doctor for more care, and she needed to consider quitting and reapplying when healthier. The parties disagreed as to whether or not she was terminated or resigned. In any event, she sued for retaliation. The District Court granted summary judgment for the employer. Absent specific evidence, an FMLA retaliation claim is evaluated under the burden-shifting framework of McDonnell Douglas Corp., which we have previously discussed. The employee must first establish a prima facie case that she was in a protected class and that she was retaliated against. The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for its action. If the employer meets that burden of production, then the employee must identify evidence sufficient to create a general issue of a material fact that the employer’s explanation is a mere pretext for unlawful retaliation. Here there was no specific non-discriminatory reason for the alleged termination, so it is really a question of the prima facie case for purposes of summary dismissal. The Court agreed that she had engaged in protected conduct and had suffered a materially adverse employment action, but was that causally linked to the protective conduct? The Court answered no, indicating that the temporal proximity of the protective conduct and the adverse employment action must be very close, starting with the time she went on leave, not the time she returned to work. The Court concluded that any time more than two months is too long to support a finding of causation without something more. Sisk v. Picture People, Inc. (8th Circuit 2011).