Labor & Employment Law Daily Wrap Up, RETALIATION—1st Cir.: Airline worker, fired after taking leave for work-related injury, revives claim, (Sep 23, 2025)

By Todd Harrison, J.D.

“The district court legally erred in treating the temporal proximity factor as a necessary condition of establishing causation.”

Vacating a district court’s grant of summary judgment against an airline worker’s retaliation claim under Puerto Rico’s Whistle-Blower Act, the First Circuit determined that the question of pretext was an issue that should be decided by a jury, not the court. In granting summary judgment against the employee’s claim, the district court treated the temporal proximity factor as a necessary condition of establishing causation and gave no weight to the employer’s shifting explanations of its reasons for terminating the employee. Regardless of temporal proximity, changing, adding, or contradicting the given reasons for discharging an employee supports a showing of pretext and causation, explained the court (Mercado v. Hyannis Air Service, Inc., No. 23-1744 (1st Cir. Sept. 22, 2025)).

In 2005, the employee in this case began working for Cape Air as a cross train agent in the employer’s Mayagüez, Puerto Rico, station. His responsibilities included operations, checking in passengers, working the counters, and working the ramp.

Injury. On April 16, 2017, the employee opened the top portion of the passenger’s cabin door of an airplane to let a passenger disembark when the door’s support suddenly unhinged, hitting the employee’s head with significant force. He continued working until the end of his shift, after which he drove himself to a nearby hospital, where he was diagnosed with an unspecified superficial injury to the skull.

Workers’ comp, leave. Over a year later, on November 29, 2018, after experiencing pain and numbness in his hands for months, the employee sought medical treatment. An MRI revealed spinal stenosis. A physician referred him to the State Insurance Fund (the Fund), Puerto Rico’s workers’ compensation system.

Because the employe could not continue working at the time, the employer placed him on FMLA leave, which was set to expire on February 27, 2019. Fund personnel examined the employee five times, placing him on rest until February 13.

About a week before his leave was set to end, the employee had neck surgery. As a result, he was examined three more times by Fund personnel, and was ultimately placed on rest until June 12, 2019, with a return-to-work date of June 13.

Termination. Meanwhile, the employee informed his supervisor on April 29 that he would be beginning physical therapy in June. On June 10, the employee received a termination letter, retroactively effective as of May 21, stating that he was terminated for failing to keep the employer apprised of his status.

Lawsuit. Subsequently, the employee sued the employer and others in the U.S. District Court for the District of Puerto Rico, alleging several claims under state and federal law, including a claim for retaliation under Puerto Rico’s Whistle-Blower Act, Law 115. With regard to his Law 115 claim, the employee contended that he was fired because he reported to the Fund, a protected activity under Puerto Rico law. The district court dismissed his claims, some for failure to state a claim, and the remainder at summary judgment.

As to the employee’s Law 115 claim, the district court entered summary judgment on the ground that the employee failed to establish causation. It concluded that the five-month time span between the employee’s protected conduct—his initial report to the Fund—and the employer’s adverse action terminating his employment was too lengthy to establish the requisite causal connection. The district court alternatively concluded that, even if the employee had proven causation, his Law 115 claim would still falter because the employer’s proffered reasons for discharging him did not appear to be pretextual.

On appeal, the employee challenged only the district court’s summary judgment dismissal of his retaliation claim under Law 115.

Burden shifting. First, the court explained that Law 115’s statutorily enacted burden-shifting approach espouses the same principles as the McDonnell Douglas framework.

Causation. Here, the parties did not dispute the first two elements of the employee’s prima facie case. Where they diverged was whether the employee had brought forth evidence of causation. The employer argued that the five-month gap between the employer reporting to the Fund and his subsequent termination was insufficient to establish a temporal connection. Alternatively, it argued that the employee failed to show that its reasons for terminating his employment were pretextual.

Temporal proximity. Close temporal proximity between the protected conduct and the adverse employment action may suffice at the prima facie stage to evidence causation between the protected activity and the adverse action, explained the court. However, explained the court, “a plaintiff need not always demonstrate close temporal proximity to demonstrate the nexus.”

In this instance, “The district court legally erred in treating the temporal proximity factor as a necessary condition of establishing causation,” said the court. There was nothing in the record to indicate that the employee had sought to prove causation solely through the temporal proximity between his reporting to the Fund and the employer’s decision to fire him. Indeed, he admitted that there was no close temporal proximity between the two events.

When a plaintiff does not rely on mere temporal proximity alone to establish causation, a court may consider the circumstances as a whole, including inconsistencies in the reasons the employer gives for its adverse action, explained the court. As such, the employer’s decision to fire the employee five months after he reported to the Fund was not in and of itself fatal to his retaliation claim.

Legitimate, nondiscriminatory reasons. Having established his prima facie case, the burden shifted to the employer to show legitimate, nondiscriminatory reasons for its decision to terminate the employee.

Here, the employer claimed that it terminated the employee because it did not know when he would return to his post. Further, it explained that the termination was warranted because it needed a third operational agent. Both reasons were sufficient for the employer to meet its burden.

Pretext. Turning to whether the employer’s asserted reasons for the termination were pretextual, the court here noted that the district court gave no weight to the employer’s shifting explanations of its reasons for terminating the employee. However, a review of the record showed material inconsistencies regarding the employer’s reasons for the discharge.

In this instance, the employee’s termination letter stated that he was being fired for failure to keep the employer apprised of his status. However, the employer asserted that it had terminated the employee due to its “operational needs,” a proffered explanation that was nowhere to be found in the termination letter.

According to the employer, its “operational needs” explanation was not inconsistent with the termination letter because that letter did not state why the employee was being terminated. Rather, the employer contended that the letter simply said the employee had failed to inform the employer about his status and the subsequent sentence about his termination should not be read in conjunction with the preceding sentence. However, a reasonable factfinder could read the letter as telling the employee he was being fired for failing to keep the employer informed of his status, said the court. Thus, the court agreed with the employee that his employer provided shifting explanations for his termination, and as such vacated the district court’s decision as to his Law 115 claim and remanded for further proceedings.

The case is No. 23-1744.

Judge: Gelpí, G.

Attorneys: Eugenio W.A. Geigel-Simounet (GS Law Offices) for Erasto Roman Mercado. Ana Beatriz Rosado-Frontanes (Jackson Lewis) for Hyannis Air Service, Inc. dba Cape Air/Nantucket Airlines. Stephen F. Coxhead (Fowler White Burnett for Textron Aviation Inc., Cape Air Corp., and Nantucket Airlines.

Companies: Hyannis Air Service, Inc.; Cape Air/Nantucket Airlines; Textron Aviation Inc.; Cape Air Corp.; Nantucket Airlines

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