Employees seeking to establish retaliation claims often rely on the “temporal proximity” between the protected activity and the adverse action in order to prove that the protected activity caused the adverse action. While recent California statutes create a “rebuttable presumption” of retaliation if the adverse action occurs within 90 days of the protected activity, no bright line rule exists as to what constitutes temporal proximity. 

In Barnhill v. Bondi, the 4th Circuit provided helpful guidance on the issue, stating that six months (and certainly three years) between the events was insufficient to show temporal proximity.

The court also articulated other facts that may help defense of a retaliation claim, including that (1) the adverse action decisionmaker was themself unaware of the protected activity (even if the employer had knowledge) and (2) the employer's conduct was similar both before and after the protected activity. 

Regarding the latter, it was helpful to the defense of the retaliation claim that alleged discriminatory conduct occurred both before and after the protected activity because such was evidence that the protected activity was immaterial.

Attorneys defending against retaliation claims—even outside the 4th Circuit—should keep these principles in mind. Investigations should also focus on what specifically the decisionmaker knew and when they learned it. Those facts can be silver bullets in defending against retaliation claims.