Last month, EmployNews reported on an age discrimination claim where the court upheld a retaliatory termination verdict even though the employee was terminated five years after he filed suit. Last week, a different federal appellate court found no temporal connection when an employee was terminated two months after she returned from FMLA leave.

In Sisk v. Picture People, Inc., the Eighth Circuit Court of Appeals heard an appeal of the dismissal of an FMLA retaliation claim filed by an employee who took eleven weeks leave following hip surgery. She alleged that shortly after returning to work, her employer began expressing concern over her ability to physically perform her job duties. She alleged that she was terminated two months later due to her limitations.

The Eighth Circuit concluded that the plaintiff had not alleged sufficient facts to allow her retaliation claim to proceed to the jury for trial. The only proximate cause offered for her FMLA claim was the amount of time between the leave and her subsequent termination. The court concluded that as a matter of law, a two month separation between the two events was not enough to establish a connection. In the absence of other evidence linking the two incidents, two months is too long for a jury to draw a temporal connection.

This case did not include ADA or other claims that the termination was based on a disabling medical condition. When compared with the earlier age discrimination case, employers may ask how long is enough time to wait between an employee's protected activity and a termination action. The earlier age discrimination case included other convincing evidence of the employer's retaliatory motivation. While no minimum time period can be declared safe, in the absence of additional evidence linking the leave and the later job termination, this case indicates that the employer does not have to wait very long before the evidentiary impact of the leave becomes a less important factor.