Dive Brief:
- The short time elapsed between a Dr. Pepper employee's discrimination complaint and his firing may appear "suspicious" but on its own wasn’t enough to support pretext, the 8th U.S. Circuit Court of Appeals ruled (Couch v. American Bottling Co., dba Dr Pepper Snapple Group Inc, No. 18-3648 (8th Cir., April 16, 2020)).
- Timothy Couch had been with the company for 17 years and rose to the position of operations manager. Following problems between him and a new manager, he filed a race discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and the state's civil rights commission. Three days after Dr. Pepper received his complaint, Couch allegedly received his first negative performance review. Dr. Pepper suspended him15 days later, he said, and then fired him after another 15 days.
- Couch sued and a district court granted the employer summary judgment. On appeal, the 8th Circuit affirmed the lower court's ruling. While the short turnaround "might look suspicious," timing alone isn’t enough to establish pretext even though it can "create an inference of retaliation," the court said. In fact, any inference from timing is "especially weak" here because Couch knew that his interim review would happen in August and he filed his charge at the end of July, the court noted. In addition, because it was the new supervisor’s first review of Couch, "any potential inference of discrimination" from the "uncharacteristically negative review could be the result of another rational explanation — the shifting expectations of a different supervisor."
Dive Insight:
In some circumstances, an unusually short period of time between an adverse employment action and protected activity can cause a complaint to survive summary judgment. A Philadelphia fitness instructor fired hours after letting her bosses know that she had filed a complaint with EEOC recently was allowed to proceed with her claims of retaliation and bias, for example.
But there is no "hard and fast" rule for such timing, so employers should ensure they have a legitimate, non-discriminatory reason for an adverse employment action and back up that decision with good documentation, experts say.
It also may be important to note that authorities give different weight to performance reviews as evidence of discrimination. While EEOC has said that an artificially low review can amount to retaliation, the 8th Circuit said that wasn't the case in Couch, citing earlier court rulings stating that a negative review generally does not rise to the level of a materially adverse employment action and that an interim review "especially" could not qualify because it could not impact Couch’s salary or job status.