The Sixth Circuit Court of Appeals recently advised that, under the right circumstances, temporal proximity alone can be enough to establish causation in a retaliation lawsuit. In Montell v. Diversified Clinical Services, Inc., the plaintiff Marla Montell reported an allegation of sexual harassment by her supervisor to the human resources office for Diversified Clinical Services (“DCS”). The human resources representative then informed the supervisor about Montell’s allegation. The next day, the supervisor allegedly called Montell and told her that she should resign or be fired. Montell resigned the following business day. She sued DCS and her former supervisor under Kentucky law, alleging, among other things, that she was constructively discharged by DCS in retaliation for complaining about sexual harassment.
In arguing for summary judgment, DCS presented extensive documentation regarding problems with Montell’s work performance, including a performance improvement plan, a documented oral counseling and a development plan, a Final Warning, and an Amended Final Warning. The district court granted summary judgment to DCS on all of Montell’s claims. Montell appealed.
On appeal, DCS argued that Montell’s “sole evidence” of causation for her retaliation claim was the temporal proximity between her report of sexual harassment and her constructive discharge. DCS maintained that temporal proximity, standing alone, was insufficient to establish causation.
In what initially appears to be a broad holding, the Sixth Circuit reversed the district court and stated that “temporal proximity alone can be enough” to establish causation in a retaliation suit. The court, however, quickly noted that in this case, Montell offered evidence in addition to temporal proximity. Other evidence, including the supervisor’s phone call to Montell immediately after learning of her complaint, supported causation. The court also took note of DCS’s documentation of Montell’s poor performance. DCS gave Montell a Final Amended Warning stating that she had until June 2, 2011, to improve or face termination. Despite that statement, Montell’s supervisor allegedly called her on May 20, 2011—one day after her report—to tell her to resign or be fired.
The lapse of a single day between the protected activity and the adverse employment action could arguably limit application of this case to its facts. Further, Montell did not rely on temporal proximity alone. That said, this case offers two important lessons for employers. First, employers should abide by the statements made to employees in their documentation, absent some extenuating circumstance. If an employee is told to improve his or her performance by a certain date, employers should generally wait until that date to reassess the performance or take action. Second, employers should remind supervisors to consult with human resources or an employment attorney before making a termination decision. A quick phone call to human resources in this case might have prevented a lawsuit.
Dressman Benzinger LaVelle is a full service law firm with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky
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