It is settled law in theory, but rarely in plaintiff’s practice, that temporal proximity isn’t a slum dunk prima facie case.

The Artaega court states:

[T]hough temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action.  This is especially so where the employer raised questions about the employee’s performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues.

(Slip op. *2).  If you’ve ever defended a case where someone gets canned in the same week as they announce a disability  (but within a day of an employer finding out, say, it just lost 75% of its profitable business), this will be a welcome addition to your list of cases to refer to.

The weakness in this reasoning is that there is nothing conclusive about timing per se.  Surely, it augments the realities of other existing facts–even indirect inferences.  This goes to the problems of the McDonnel Douglas/Burdine framework that has been kicked around recently on some academic blogs and in some federal court opinions.  Yes, employers will try to hide or lie about direct evidence, so it’s proper to infer discrimination–but why is that different in discrimination contexts than any other application of indirect evidence, like intent?

Of course the law almost totally ignores the realities of what this means in practice: it means cases can get to juries hinging on almost nothing, with the burden of proof more or less already shifted against the Defendant, so, evidence or not, the “nuisance value” of such a case is much, much higher than it otherwise would be.

The advance sheets missed this snippet:

We conclude that the disability discrimination claim fails because the employee’s symptoms did not constitute a “physical disability” under the FEHA.  Specifically, the employee’s pain and numbness did not make it difficult for him to achieve the life activity of working.

(Slip Op. *2.)

The court engages in a lengthy discussion from Slip Op. 17-24.  Try finding much case law on the bottom limits of what is a disability under the FEHA.  There isn’t much.  This case is just as important for that precept as the former.