Written by Fiona W. Ong from Shawe Rosenthal LLP on July 31, 2024
The employer had a legitimate reason to terminate an employee based on his refusal to cooperate in the investigation into his possible wrongdoing, according to the U.S. Court of Appeals for the Ninth Circuit. Moreover, the fact that his termination occurred 56 days after his internal discrimination complaints meant that there was not sufficient temporal proximity to support the claim of unlawful retaliation.
In Kama v. Mayorkas, the TSA conducted an investigation into the employee’s co-worker for the receipt of illegal compensation for serving as a personal representative assisting other employees during internal investigations. A witness indicated the employee’s possible involvement, but the TSA did not investigate the employee at that time.
Several years later, the employee began a series of EEO discrimination complaints. Approximately five months after his first complaint, TSA commenced an investigation into the employee’s possible misconduct related to the earlier investigation. The employee refused to respond to questions or provide documents related to whether he illegally received compensation. He was notified that his employment could be terminated for his failure to cooperate, and then subsequently terminated. He sued, alleging that the TSA commenced its investigation and terminated him in retaliation for his EEO complaints, pointing to the temporal proximity of his complaints to the termination as evidence that the TSA’s stated reason was pretext for illegal retaliation under Title VII.
The Ninth Circuit rejected the employee’s claims. It noted that whether temporal proximity supported a claim of retaliation or pretext is a fact-specific analysis that depends on the degree of proximity and what other evidence supports an inference of pretext. It further observed that where “an adverse action follows on the heels of both a protected activity and an independent reason for adverse action— [temporal proximity] might not be enough standing alone to establish pretext.”
In this case, the TSA articulated a legitimate, non-retaliatory reason for the employee’s termination – his refusal to cooperate with the investigation into his suspected criminal activity. The Ninth Circuit found that the period of time between his final EEO complaint and his termination, 56 days, was not sufficiently close to establish pretext. It also noted the same temporal proximity between the employee’s non-cooperation and his termination – meaning that the same period of time “cuts both ways.” Because an “equally likely cause” of his termination arose during that period of time, temporal proximity could not establish illegal retaliation or pretext. In addition, the five-month gap between his first EEO complaint and the beginning of the investigation was not sufficient temporal proximity to establish that the investigation was in illegal retaliation for his complaint.
This case provides some good news for employers. First, an employee’s refusal to participate in an investigation into possible misconduct can be a legitimate reason for termination. (We note that unionized employers must ensure that they comply with the rules governing their investigations of union members that can result in disciplinary action, including termination). In addition, courts will not presume an illegal motivation on the part of an employer based purely on temporal proximity of the adverse action to the employee’s protected conduct (of discrimination complaints) where there has been an extended time between the two, or where there is other evidence that supports the employer.
