How much time between the retaliatory act (discipline or termination) and complaint of discrimination is too much to support a claim of retaliation.

How much time between the retaliatory act (discipline or termination) and complaint of discrimination is too much to support a claim of retaliation.

In Texas Parks and Wildlife Dep’t v. Gallacher, 2015 WL 1026473 (Tex. App.— Austin 2015), the Austin court held that the passage of two months and one week between a supervisor’s discovery of protected conduct and an allegedly retaliatory act was not sufficient, standing alone, to support an inference of retaliatory intent. However, in Texas Department of State Health Services v. Rockwood, 468 S.W.3d 147 (Tex. App.—San Antonio 2015), the San Antonio court held that temporary proximity of one month, standing alone, was sufficient to defeat the public employer’s dismissal. And in Texas Health and Human Services Commission v. Baldonado, 2015 WL 1957588 (Tex. App.—Corpus Christi 2015), the court held that the passage of two and one half months between a supervisor’s discovery of the plaintiff’s protected conduct and the allegedly retaliatory act might support a prima facie case of retaliation.

As you can see every court has a different view of the time between the retaliation and the outcry of discrimination. As and El Paso employment lawyer it is my experience that time limits alone, unless they are very short, will not support a finding of retaliation without something else. However usually there are other incidents that lead up to retaliation that is actionable. For example there may be a change in attitude immediately upon the reporting of the discrimination or small actions that in and by themselves are small but add up to show that the ultimate act of retaliation (termination for example or failure to be promoted or obtain a well deserved raise) was not isolated but part of a plan of retaliation. It is very important to anyone who believes they are being retaliated against for reporting retaliation to keep detailed records of each incident of retaliation. It is always important to consult a board certified employment lawyer as soon as possible to learn how to document the reporting of the discrimination as well as any retaliation.

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