Dive Brief:

• The "shifting justifications" offered by Wells Fargo for firing a portfolio manager after she returned from medical leave led the 9th U.S. Circuit Court of Appeals to overturn a district court's ruling of summary judgment in favor of the banking and financial services giant (Samson v. Wells Fargo Bank, N.A., No. 17-55927 (9th Cir. June 28, 2019)).
• Wells Fargo claimed that Patricia Samson was fired because her position was eliminated in favor of a higher-paying position. However, the day after Samson announced her intention to take leave, her supervisor sent a meeting invitation with the title "Samson Displacement Conversation" to his boss. In the message, the supervisor said he wanted to "run an idea by you." This undercut Wells Fargo's assertion that the position elimination had already been in the works and supported a reasonable inference of pretext, said the 9th Circuit.
• Because a jury could reasonably infer that the decision to fire Samson was made the day after she announced her intention to take leave, rather than (as Wells Fargo claimed) two weeks earlier, the 9th Circuit reversed the district court's summary judgment ruling on Samson's discrimination claim. It also reversed the summary judgment on her remaining claims of retaliation, wrongful termination in violation of public policy, and failure to accommodate.

Dive Insight:

Timing, all by itself, can be sufficient to establish a prima facie case of retaliation, according to experts. And while employees out on leave aren't protected from legitimate disciplinary actions, employers need strong documentation to prove that an adverse employment action happening close in time to a protected activity is not, in fact, illegal.

In one recent case, an employee fired two weeks after making a workers' compensation claim was allowed to proceed with his retaliation claim, in large part because of what the 5th Circuit called the "stark temporal proximity" of the firing. In another recent case, an employee was allowed to proceed with her retaliation claim — even though no actionable harassment or discrimination existed — because adverse action was taken against her soon after she filed her complaint.

Experts have said that retaliation claims come up more often than any other type of bias claim because they often piggyback onto other allegations. Manager training, along with timely and consistent discipline, is crucial to ensuring that discipline avoids both the appearance and substance of illegal retaliation.