Dean Kpere-Daibo

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Eighth Circuit Rules Six Weeks Between Protected Activity and Termination Sufficient to Revive Retaliation Claim

The Eighth Circuit Court of Appeals in Wilson v. Arkansas Dept. of Human Services, Case No. 16-1174 (March 1, 2017), held an African American employee who alleged that she was terminated six-weeks after filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) demonstrated a sufficient causal connection between her protected activity and an adverse employment action, reviving her retaliation claim.

LaKeysia Wilson was employed with the Arkansas Department of Human Services (“the Department”) as a program supervisor. Only a few months after obtaining her position, Ms. Wilson filed a complaint with the EEOC alleging harassment based on race and disability after she was placed on a performance improvement plan. The next week, Ms. Wilson received a written warning from her employer for work that a Caucasian female employee did not accomplish. Six weeks after Ms. Wilson filed her EEOC complaint, she was terminated. Subsequently, Ms. Wilson filed her second EEOC complaint alleging she was retaliated against for filing her first EEOC complaint. Ms. Wilson later filed a complaint in the United States District Court for the Eastern District of Arkansas alleging disparate treatment on the account of race, retaliation, and harassment in violation of Title VII of the Civil Rights Act of 1964.

The district court granted the Department summary judgment dismissing her claims, concluding Ms. Wilson did not state a plausible claim of disparate treatment because a written warning does not constitute an adverse employment action. The court also dismissed Ms. Wilson’s retaliation claim, concluding she did not properly plead that “but-for” her EEOC claim, her employment would not have been terminated.

On appeal, the Eighth Circuit Court of Appeals unanimously affirmed the district court’s dismissal of Ms. Wilson’s disparate treatment claim, but reversed dismissal of her retaliation claim. The Court held she sufficiently alleged a “but-for” causal connection between her EEOC complaint and her termination. The Court concluded Ms. Wilson specifically emphasized that she was terminated only six weeks after filing her EEOC complaint, and at summary judgment, a plaintiff can prove a causal connection through temporal proximity. Therefore, the Court held that the temporal proximity of the two events alone was sufficient for a plausible “but-for” causal connection.

In its decision, the Court considered whether the Department provided an “obvious alternative explanation” for the conduct that would render Ms. Wilson’s complaint implausible. The Court was not convinced that her supervisor’s criticism of her performance constituted an “obvious alternative explanation” that made her retaliation claim implausible since there was no explanation as to why she was criticized. As a result, the Court held the district court erred in dismissing Ms. Wilson’s retaliation claim.

What does the Wilson case mean for employers? First, employers must be cautious when disciplining employees who have filed internal and/or external complaints. As this case demonstrates, it is relatively simple for employees to establish that “but-for” their complaint, they would not have been disciplined merely based on the timing of the two events. Second, in terminating an employee, employers must have well-documented explanations set forth in the discipline issued to employees. Providing employees the reasoning behind the issuance of discipline will assist employers later when presenting their “obvious alternative explanations” that are critical in the event litigation ensues.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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