Plus at Pretext: Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases

Troy B. Daniels, Richard A. Bales


Paulo, a hard-working man originally from Portugal, had been in the United States for twenty years as a shift manager for a restaurant. However, his general manager, Donald, treated him differently from his "American-bom" colleagues. For example, Paulo had trouble getting requested days off, taking vacation time, and negotiating raises, notwithstanding his seniority compared to his peers. After missing his family's Thanksgiving dinner for the fifth year in a row, while all of the other managers got the day off, Paulo filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of national origin. In due course, the EEOC notified the restaurant about Paulo's complaint. One month later, Paulo came down with the flu and called in to work sick. When he called, however, Donald was very upset and told Paulo that if he did not show up, he need not bother showing up again. Paulo did not go to work and was terminated.

These facts raise the issue of whether Paulo's employer retaliated against him because he filed an EEOC complaint. While Paulo has the right to seek damages for retaliation, regardless of whether his underlying discrimination complaint can be proven, he will have the burden of both providing evidence and persuading a jury that his termination was retaliatory. Before he has that chance, however, he will almost surely be forced to defend his suit against a motion for summary judgment. During a motion for summary judgment, a court must decide whether Paulo has provided enough evidence that a reasonable jury could be persuaded to return a verdict in his favor. Thus arises the issue: how much weight should the court give to the evidentiary fact that only one month separated Donald's notice of Paulo's EEOC complaint and Donald's termination of Paulo?

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