Temporal proximity is a legal term used to link events that occurred relatively close to each other. Application of this term predominantly arises in connection with EEO complaints, (post) Reasonable Accommodation claims (reprisal), and whistleblower claims in the federal sector, in that it allows for an “inference of causation.” In layman terms, the alleged action by the agency would not have otherwise occurred but for the protected activity that preceded the agency action. Put another way, an essential element of a prima facie case of reprisal is a showing that the alleged retaliation “followed the complainant’s engagement in protected activity within such period of time that one can infer retaliatory motive.” Speece v. U.S. Postal Service, 84 FEOR 20325 , EEOC No. 01831994 (EEOC 1984).
The application of the term often manifests in case law as noted. For example, a supervisory criminal investigator for the Department of the Treasury established a nexus between his EEO activity and three adverse agency actions through temporal proximity. His supervisor learned of the investigator’s EEO activity on February 7, 2019, and the adverse actions began in May 2019, which was only a few months later. Additionally, he was issued a counseling memorandum on July 1, 2019, which was less than one week after his prior EEO activity was discussed on June 26, 2019. Terrance A. v. Department of the Treasury, EEOC No. 2020002047 (EEOC OFO 2021). In Cardozo v. Department of Homeland Security, EEOC No. 07A30014 (EEOC 2004), evidence established the complainant was subjected to retaliation for prior EEO activity when he was not selected for a promotion. A link (nexus) was established to his past EEO activity when a supervisor commented he would never be promoted because of the “stink” he “made to come on board.”
It is important to realize that proving temporal proximity itself does not prove a complaint or a claim. It merely establishes a causal connection, often meeting a threshold for advancing a complaint that still requires proof. Unlawful retaliation is established when a causal connection is established between a materially adverse action and the individual’s protected activity. In other words, you still need to prove that the agency action was only taken in reprisal for protected activity (the agency would not have otherwise taken the action).
Aside from not actually “proving your case” even if temporal proximity can be proven, temporal proximity is limited in application. Specifically, the passage of a year or more between the protected activity and the adverse action does not give rise to an inference of retaliation. O’Neill v. Postmaster General, 01A45961 (2005); Webster v. USPS, 01842494, 1463/B14 (1986). In Knight v. Postmaster General, 01A54821 (2006), the Commission drew no inference of retaliation where at least six months had passed between the protected activity and the adverse treatment. In doing so, the Commission cited with approval O’Neal v. Ferguson Construction Co., 231 F.3d 1248 (10th Cir. 2001), holding that a three month period was insufficient to support such an inference. See also Klein v. Secretary of Agriculture, 0120061721 (2008); King v. Secretary of Air Force, 01A62609 (2006).
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