Labor & Employment Law Daily Long-time employee who received his worst review after EEOC filing, and then got fired, can’t revive retaliation suit
Monday, April 20, 2020

Long-time employee who received his worst review after EEOC filing, and then got fired, can’t revive retaliation suit

By Marjorie Johnson, J.D.

Any potential inference of retaliation from the “uncharacteristically negative” review was weakened substantially by another rational explanation—the “shifting expectations” of his new supervisor.

An operations manager for a bottling factory who received the poorest evaluation of his career shortly after filing an EEOC charge and was terminated a month later failed to revive his Title VII and state-law retaliation claims since the timing alone was insufficient to cast doubt on the proffered reasons for his firing, which included his inability to adjust to new management expectations and insubordination. Affirming dismissal on summary judgment, the Eighth Circuit found that any inference of retaliation from the timing was “especially weak” since the employee could have anticipated the previously scheduled review and it was given by a new supervisor who had never evaluated him before (Couch v. American Bottling Co., April 16, 2020, Stras, D.).

Resists management changes. The employee worked at the plant for 17 years and in 2015 was promoted to operations manager. Things started going downhill the following year, when there was a change in management. An executive initially ran the plant but then hired a new supervisor to take over permanently. The two then began implementing new management philosophies.

According to the executive, the employee struggled with these changes and resisted being “part of the management team,” purportedly becoming “combative” and “defensive.” His supervisor also reported that he did not “think broadly,” “understand the business,” or “come up with” solutions to problems.

EEOC charge. The employee’s relationship with the supervisor worsened after they met to discuss an internal investigation into accusations that he had displayed favoritism towards his wife in a workplace dispute, who also worked at the plant and was Hispanic. The employee resisted discussing the matter and during the exchange, the supervisor purportedly said that he better not accuse him of discrimination or their working relationship would suffer. Perceiving this as a “threat,” the employee filed an EEOC charge.

Poor review. A few weeks later, the supervisor met with the employee to give him his interim performance review. He received the worst ratings of his tenure, earning an overall “unsatisfactory” score of 2 out of 5. He also received comments indicating “serious concerns” about his leadership and was advised to make “significant” changes to his behavior.

Fired after contentious meeting. The employee lashed out, telling his supervisor before leaving that “could go ahead and stop because it was all BS” and that he was “now a part of” a plan “to replace” him with one of the executive’s “west point buddies.” He was suspended 15 days later, and fired 15 days after that. He then brought this lawsuit asserting retaliation under Title VII and the Iowa Civil Rights Act.

Review not adverse action. The Eighth Circuit rejected the employee’s contention that his interim review qualified as an adverse employment action. A negative review generally does not rise to the level of a materially adverse employment action, and this was especially so here, since the employee’s interim review would not, by itself, impact his salary or job status.

No triable issue as to pretext. Moreover, even assuming that he established a prima-facie case of retaliation, the employee failed to refute his employer’s contention that he was suspended and discharged because he was unable to adjust to new management expectations, was unwilling to be coached, and refused to sit through his interim performance review.

Timing alone insufficient. The employee also failed to show that temporal proximity was sufficient to suggest pretext, even though he emphasized that the employer gave him his first-ever negative performance review just three days after receiving his EEOC complaint and within 30 days suspended and fired him. While suspicious, timing alone is generally not enough to establish pretext.

Indeed, any inference of retaliation that could be drawn from the timing was “especially weak” since the employee knew that his interim review would happen in August and he filed his charge at the end of July. Moreover, because this was the first time that his new supervisor had reviewed him, any potential inference from the “uncharacteristically negative” review was weakened substantially by another rational explanation—the “shifting expectations” of a different supervisor.

Involving HR not “sinister”. The Eighth Circuit also rejected the employee’s contention that pretext could be inferred from the supervisor’s post-meeting actions. In particular, he pointed to the fact that after his performance-review meeting, the supervisor reported his reaction to HR, which set off a series of emails. He appeared to be arguing that the supervisor sought help from HR in covering up his retaliatory actions.

But the employee had made serious accusations against the employer during the meeting, including calling it the “most racist company around” and accusing its executive of engaging in favoritism in making personnel decisions. It was “hardly surprising” that the supervisor reported these allegations to HR for investigation, and there was no indication that they “were up to anything more sinister, much less that some sort of cover-up was afoot.” Nothing that the employee said at the meeting or in his EEOC charge “immunized” either his poor performance or his insubordination.

Can’t revive state law claim. Finally, recent Iowa Supreme Court decisions did not provide the employee a path to revive his Iowa retaliation claim. Though he argued that the caselaw recognized a looser “motivating factor” standard of causation for retaliation claims, the state’s high court also clarified that at summary judgment, the motivating-factor standard does not apply in indirect-evidence cases. Thus, he was still required to show that his employer’s retaliatory motive was “the real reason” for its actions, which he failed to do.

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