Takeaway: Suspicious timing can be an essential element of a discrimination or retaliation claim, but the temporal proximity of an equal employment opportunity protected activity and a materially adverse employment action does not generally establish a causal connection without other evidence. However, when the time frame is sufficiently brief, a court may find that the temporal proximity alone is sufficient to show causation at the initial stages of a claim.
The short interval between an employee’s request for a medical accommodation and his termination was sufficient to show causation in the early stages of his discrimination and retaliation claims, the 8th U.S. Circuit Court of Appeals ruled. The court also held that a jury could reasonably conclude from the evidence that the employer’s reasons for firing the employee were a pretext crafted after having already decided to terminate him because of his accommodation request.
The employee was an outside sales representative for a company that sold used cars at auction to auto dealerships. He had been hired primarily to recruit new business (hunting) in an area where the company lacked a sales presence, although his duties also included maintaining existing customer accounts (farming). In his role, the employee typically traveled 3.5 days per week.
In 2019, the company began merging its sales team with that of another company owned by the same parent organization. The merged company decided to divide the outside sales representative roles between those who would be primarily responsible for hunting and those primarily responsible for farming. Leading up to the merger, the employee discussed his potential role in the new company with his supervisors (the company’s assistant general manager and general manager) and the regional sales manager of the new company. All of them indicated that they saw him in a hunter role.
On Nov. 16, 2019, the employee had a seizure and was instructed by his doctor not to drive for six months. When he returned to work on Nov. 18, he reported the seizure to his supervisors and provided medical documentation stating that he could not drive temporarily but could perform all of his other job duties. The employee, with his supervisors and HR, created an accommodation plan under which he would work in the office three days each week and an inside sales representative would drive him to appointments on the other two days.
After just one week, however, the employee was told that they could not continue the accommodation plan and that the vice president (VP) of sales of the new company needed to be informed of the situation and would be responsible for approving any accommodations.
Prior to that, the VP had not met the employee, had any criticism of his performance or identified him for termination in the merger. She later contacted the general manager (GM) to ask about the employee and if he was “good or no.” The GM replied, “In a pure hunter role … I think he would be pretty darn good,” but he needed to improve his relationship-building skills, which are needed for farming.
On Dec. 6, the VP emailed HR about the employee’s driving restriction, stating that the employee was identified for termination and asking whether that would be an issue. HR replied that it might be, because the employee was a top performer and his supervisors had pushed hard for the accommodation and asked what had changed to place the employee on the termination list.
After the VP explained that that there were stronger hunters in every territory that the employee might reasonably be assigned and that the employee was not suited for an open farming role, HR said the termination was defendable due to the role change, the unreasonable accommodation request and the employee’s skill set.
On Dec. 18, the company terminated the employee, saying that it did not have a hunter role for him. There were only three hunter roles available, and his sales numbers were lower than the three other employees in his position.
The employee filed a lawsuit, claiming he was unlawfully terminated because of his disability and in retaliation for requesting an accommodation. The federal district court granted summary judgment to the employer on both claims, saying the employee had failed to show a causal connection between his disability or accommodation request and his termination.
The 8th Circuit noted its precedent that an employer’s decision to terminate an employee within a matter of weeks of learning of the employee’s potentially debilitating condition was enough to establish a prima facie case of disability discrimination. Another ruling held that more than two months was too long for temporal proximity to support a finding of causation on its own. Because the interval between the VP learning of the employee’s accommodation request and the employee being fired was far less—only 10 days—the court ruled that the temporal proximity was sufficient to establish causation at the prima facie stage of the employee’s claims.
The court also agreed with the employee’s argument that a reasonable jury could determine that the VP decided to terminate him because of his medical restriction and only retroactively claimed a performance-based concern after HR advised her that terminating an employee due to a disability could be an issue. Thus, there are genuine issues of material fact as to whether the VP’s reasons for termination were pretext for discrimination and retaliation.
The court reversed the lower court’s judgment and remanded the case for further proceedings.
Anderson v. KAR Global, dba Adesa Missouri LLC, 8th Cir., No. 22-2808 (Aug. 25, 2023).
Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for XpertHR, a service helping HR build successful and purposeful workplaces.
