San Antonio Court of Appeals Upholds Causation in a Retaliation Case Despite a Three-Year Time Gap
Unlike ordinary discrimination claims, retaliation claims require "but for" causation: that the retaliatory act would not have occurred but for the plaintiff's protected activity. It is common for plaintiffs to rely on "temporal proximity" (in other words, a short time gap between the protected activity and the adverse employment action) to prove causation. However, the courts have been increasingly strict about temporal proximity, and thus it is important to present other evidence to bolster the inference of causation.
This is well illustrated by San Antonio Water System v. Nicholas, No. 04-12-00442-CV (Tex. App. -- San Antonio 2013). Nicholas was an executive with SAWS. In 2006, she investigated a sexual harassment claim against Flores, who was a higher level executive. She was involved in a meeting at which Flores was counseled about his behavior. In 2009, her position was eliminated. She then pursued a claim for retaliation, claiming that Flores had eliminated her position due to her prior involvement in the sexual harassment investigation. She won the case to a jury, and SAWS appealed.
Naturally, SAWS argued that Nicholas could not possibly prove "but for" causation because of the three-year gap. The San Antonio Court of Appeals noted that Flores did not have the power to retaliate against her until early 2008, when she was placed under his direct supervision. However, that still left a full year between the time that Flores had power over Nicholas and the time when her job was eliminated.
Nicholas did rely on temporal proximity. Instead, she had presented evidence showing that Flores was immediately hostile to her when he became her supervisor, and that he undermined her in other ways over time. She also showed that her job was the only position eliminated. SAWS presented a considerable amount of evidence to negate causation, including testimony from the CEO that Flores did not influence his decision to eliminate Nicholas' position. However, the court found that the evidence was sufficient to support the jury verdict:
Viewing all of the evidence in the light most favorable to the verdict and indulging every reasonable inference in favor of the verdict, as we are required to do, we conclude that the evidence of causation, including circumstantial evidence, amounts to more than a mere scintilla. There is some evidence from which reasonable jurors could draw a reasonable and logical inference that Flores recommended the elimination of Nicholas's position because she had counseled/reprimanded him for sexual harassment. The jury was entitled to resolve inconsistencies and conflicts in the evidence, and we must accept the jury's resolution of these inconsistencies and conflicts. In doing so, the jury could have disregarded Puente's testimony that he was not influenced by Flores when the decision was made to eliminate Nicholas's position. And, the jury heard evidence that Nicholas was the only SAWS employee to have her employment terminated during a company-wide reorganization. Because the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions, we conclude the evidence is legally sufficient to support the jury's verdict on causation.
The court affirmed the judgment in favor of Nicholas.
The lesson for plaintiffs from this case is that it is essential to be creative in developing and presenting evidence evidence in support of causation, rather than seeking to rely on temporal proximity. Temporal proximity can sometimes support causation, but lack of temporal proximity can be used as a weapon by defendants. It is essential to present the entire picture to the court and to the jury.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes