Dive Brief:

• An employee's "intervening unprotected conduct" — a refusal to discuss her performance with her supervisors, along with an outburst — between her Family and Medical Leave Act (FMLA) leave and her eventual termination severed any potential connection between the leave and the firing, the 8th U.S. Circuit Court of Appeals ruled (Lovelace v. Washington University School of Medicine, No. 17-3673 (8th Cir. July 25, 2019)).
• The employee had numerous documented performance problems. Additionally, there were about nine months between the start of her FMLA leave and her termination and about five months between her return from leave and her termination. The 8th Circuit noted that a lag of even one or two months was too long to establish a causal connection absent other evidence. 
• The employee, who is white, also claimed racial discrimination on the basis of being "labeled a racist" after claiming a black colleague didn't like working with white people. However, the employee confirmed that she experienced no negative comments about her race or ethnicity. The 8th Circuit affirmed a district court's summary judgment ruling in favor of the employer.

Dive Insight:

Timing alone can help support a claim of discrimination or retaliation when an adverse action, such as discipline or termination, follows closely on the heels of protected activity (including a complaint of harassment or bias, or taking a protected leave). But, as this case shows, timing can also work in an employer's favor when there is a lengthy stretch between the two events.

Additionally, as the 8th Circuit mentioned, intervening activity — such as misconduct or performance problems — can help sever any perceived link suggesting illegal bias or discrimination. 

Regardless of the specific timing or circumstances, accurate and thorough documentation is essential to an employer's defense against bias and retaliation allegations. In a recent case involving an employee terminated after taking FMLA leave, the employer's documentation of her performance problems was critical to defeating the claims. Similarly, a school district had strong records supporting its nondiscriminatory reasons for repeatedly denying a teacher a full-time position.