Roby Anderson v. KAR Global, doing business as Adesa Missouri, LLC

United States Court of Appeals
For the Eighth Circuit
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No. 22-2808
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Roby Anderson
Plaintiff - Appellant
v.
KAR Global, doing business as Adesa Missouri, LLC
Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 13, 2023
Filed: August 25, 2023
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Before GRUENDER, ARNOLD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Roby Anderson appeals the district court’s adverse grant of summary
judgment on his claims that his former employer, ADESA Missouri, LLC (ADESA),
discriminated and retaliated against him in violation of the Americans with
Disabilities Act (ADA). Because we conclude that Anderson produced sufficient
evidence to raise a genuine issue of material fact as to whether ADESA’s reasons

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for terminating him were pretext for disability discrimination and retaliation, we
reverse.
I. Background
Anderson began working for ADESA, a KAR Global company, as an Outside
Sales Representative in February 2018. In that role, Anderson was required to travel
for approximately 3.5 days per week to recruit new business. Anderson’s job duties
involved both recruiting new business (“hunting”) and maintaining existing
customer accounts (“farming”). ADESA recruited Anderson primarily for his skills
as a “hunter,” as he was hired to take over a region where ADESA lacked a sales
presence.
In 2019, ADESA began merging its sales team with TradeRev, another KAR
Global company. New sales territories were drawn, more than 300 members of the
sales teams were reviewed, and approximately fifty sales-related positions were
eliminated in a reduction-in-force (RIF). As part of the restructuring, ADESA
determined that the Outside Sales Representative role would be realigned into two
separate positions: Senior Dealer Solutions Executives (SDSEs), primarily
responsible for hunting, and Dealer Solutions Executives (DSEs), primarily
responsible for farming. Leading up to the merger, Anderson discussed the new
roles with his supervisors. Anderson’s general manager, Kevin Rhoads, told him
that he envisioned Anderson in a hunter role going forward. Rob Peterson, the
assistant general manager, spoke with Anderson about whether he would be
interested in an expanded hunter role post-merger. Anderson’s hiring manager and
Regional Sales Director at TradeRev, Lindsey Comer, told him that she thought he
would like his new role as a hunter.
On Saturday, November 16, 2019, Anderson suffered a seizure. Anderson’s
doctor instructed him not to operate a motor vehicle for six months following the
seizure. Anderson returned to work the following Monday, November 18. He
reported the seizure to his supervisors and provided them with documentation from

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his doctor stating that he was temporarily unable to drive but could perform all other
functions of his job. Anderson, his supervisors, and human resources (HR)
personnel developed an accommodation plan, which modified his role so that he
could work in the office three days a week, and an Inside Sales Representative would
drive him to his appointments the other two days.
However, about one week later, Comer informed Anderson that they would
not be able to continue with the accommodation plan. Anderson then proposed an
alternative accommodation that would allow his father-in-law to drive him to work
appointments. Anderson never received a response regarding this proposal;
nonetheless, ADESA continued with the initial accommodation plan until
Anderson’s termination.
On November 26, 2019, Anderson sent Comer a text message asking if his
driving restriction was going to be an issue. Comer responded, “I have no clue, I
sure hope not though. I just know I have to disclose that to my boss and HR from
what Kevin [Rhoads] told me.” Rhoads had advised Comer to let Hopkins know
about Anderson’s driving accommodation because, as the Vice President of Sales
for TradeRev, Hopkins would be the person responsible for approving
accommodations going forward.
In a phone call that same day, Comer told Hopkins about Anderson’s driving
restriction and his need for an accommodation. At the time, Hopkins had never met
Anderson, she did not have any criticisms of his performance, and Anderson had not
yet been identified for termination. Then, on an unknown date between November
26 and December 6, Hopkins sent a text message to Rhoads asking him to tell her
about Anderson and if he was “good or no.” Rhoads responded that Anderson was
a “[g]ood hunter but not the best at relationship building. He has gotten better in
that area recently but could still use some work on it. In a pure hunter role though I
think he would be pretty darn good.” Rhoads did not provide any other input to
Hopkins beyond this text message, and he only had one brief conversation with

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Hopkins related to Anderson’s employment—when Hopkins told him that Anderson
had been earmarked for termination.
Shortly thereafter, on December 6, Hopkins emailed HR Representative
Marty Nowlin for advice about Anderson. In her first email, Hopkins mentioned
only that Anderson had a “medical restriction where he cannot drive for 6 months”
and that he had been “identified” for termination. Hopkins asked, “Will this be an
issue?” Nowlin responded that it could be, as Comer and Rhoads had “pushed hard”
to accommodate Anderson because “he was a high performer.” Nowlin told
Hopkins that it would be helpful to understand what had changed so that they could
“be better equipped” for their “course of action.”
Hopkins responded that she received feedback that Anderson was best at
closing deals, and that he did not like to manage the details. She quoted Rhoads’s
comment that Anderson was a “[g]ood [h]unter but not the best at relationship
building.” She also stated that they had “identified a stronger SDSE in every
territory that would be reasonable for [Anderson] to cover,” and that although they
had one DSE position available, that role would not be suited to Anderson’s
strengths. Nowlin replied that the termination would be “defendable based on the
role change, the unreasonable nature of accommodation and his skill set.”
Then, on December 18, 2019, ADESA terminated Anderson’s employment.
During his termination meeting, Anderson was told that he was being let go because
ADESA did not have a hunter role for him, and his sales numbers were lower than
the three other employees in his position.
The decision to terminate Anderson’s employment was made by Comer and
Hopkins. During her deposition, Comer testified that after the merger of the ADESA
and TradeRev sales teams, they had one more salesperson than necessary in
Anderson’s sales region. She said Anderson was selected for termination because
at the time, everyone had exceeded their sales goals except for him. Comer also
noted that two customers had expressed that they did not “mesh” well with

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Anderson. Hopkins testified that employees were evaluated based on their skill sets,
performance numbers, and organizational fit for the new job descriptions. Based on
the employees’ annual performance goals, she said that others “performed higher”
than Anderson. According to Comer, KAR Global was trying to complete the RIF
by January 2020.
Anderson sued ADESA, alleging that he was unlawfully terminated because
of his disability and in retaliation for requesting an accommodation. The district
court granted summary judgment in favor of ADESA, concluding that Anderson
failed to establish a prima facie case of discrimination and retaliation because he
failed to show a causal connection between his disability or accommodation request
and his termination. This appeal followed.
II. Discussion
“We review the district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in the light most favorable to . . .
the nonmoving party.” Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013).
“Summary judgment is appropriate if ‘the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
The ADA prohibits employers from discriminating against employees on the
basis of disability. 42 U.S.C. § 12112(a). The ADA also prohibits employers from
retaliating against employees for engaging in a statutorily protected activity, which
includes requesting an accommodation. 42 U.S.C. § 12203(a); Heisler v. Metro.
Council, 339 F.3d 622, 632 (8th Cir. 2003) (requesting accommodation is protected
activity). When there is no direct evidence of discrimination or retaliation, the
plaintiff may establish an inference of discrimination or retaliation under the burden-
shifting framework provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Canning v. Creighton Univ., 995 F.3d 603, 614-15 (8th Cir. 2021).

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Under this framework, the first step for a plaintiff is to establish a prima facie
case. “To establish a prima facie case of discrimination, [a plaintiff] ‘must
demonstrate that (1) he is a disabled person as defined by the ADA, (2) he is qualified
to perform the essential functions of his job with or without reasonable
accommodation, and (3) he suffered an adverse employment action because of his
disability.’” Higgins v. Union Pac. R.R. Co., 931 F.3d 664, 669 (8th Cir. 2019)
(quoting Cody v. Prairie Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014)). “A
prima facie case of retaliation requires the plaintiff to show (1) [he] engaged in
statutorily protected activity; (2) [he] suffered an adverse employment action; and
(3) a causal connection between the two.” Moses v. Dassault Falcon Jet-Wilmington
Corp, 894 F.3d 911, 924 (8th Cir. 2018) (alteration in original) (quoting Oehmke v.
Medtronic, Inc., 844 F.3d 748, 758 (8th Cir. 2016)). If the plaintiff succeeds at the
prima facie stage, “[t]he burden of production then shifts to the employer to show a
legitimate, nondiscriminatory reason for the adverse action.” Oehmke, 844 F.3d at
755. The burden then shifts back to the plaintiff “to show that the proffered reason
was, in reality, a pretext for discrimination.” Id.
The district court determined that Anderson established the first two elements
of a prima facie case of discrimination and retaliation, and the parties do not contest
these issues on appeal. The district court concluded, however, that Anderson failed
to establish an inference that his disability and accommodation requests were
causally connected to his termination. We thus focus our analysis on causation. In
the disability discrimination context, we have held that a “temporal connection can
demonstrate a causal link between an adverse employment action and the
employee’s disability.” E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th
Cir. 2014). As to retaliation, we have held that “[g]enerally, more than a temporal
connection between the protected conduct and the adverse employment action is
required to present a genuine factual issue on retaliation.” See Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). “Temporal proximity between
the protected conduct and adverse action ‘must be very close’ for timing alone to be
sufficient.” Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (quoting Sisk v. Picture
People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)).

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The parties agree that the decision to merge ADESA and TradeRev was made
prior to Anderson’s seizure. But, as Anderson points out, a general plan for staff
reassignments after a merger is distinct from a specific decision to terminate any
particular employee. And it is undisputed that the decision to terminate Anderson
was made after his seizure. Viewing the evidence in the light most favorable to
Anderson, the record here shows that Anderson had discussions with his supervisors
regarding his potential post-merger role as a hunter. He then had a seizure on
November 16. After Anderson informed his direct supervisors of his driving
restriction on November 18, they initially “pushed hard” to accommodate him and
developed a temporary accommodation that allowed him to keep working.
However, Anderson was soon told that the accommodation would not work going
forward. Then, when he proposed an alternative plan, he received no response from
the company.
On November 26, Comer told Anderson that she “sure hope[d]” his driving
restriction would not be an issue. That same day, Comer told her supervisor,
Hopkins, about Anderson’s driving restriction and accommodation requests. At that
time, Hopkins had no criticisms of Anderson’s performance and no decision had
been made to terminate him. However, by December 6—ten days after Hopkins
learned of Anderson’s disability and accommodation requests—Hopkins had
identified Anderson for termination.
Drawing all reasonable inferences in Anderson’s favor, a jury could conclude
that Hopkins, the new head of the chain-of-command, was the primary
decisionmaker. And the jury could find that ADESA’s attitude toward Anderson
changed only after Hopkins became aware of Anderson’s disability. Thus, for the
purposes of determining the temporal proximity between Anderson’s disability and
accommodation request and his termination, we base our analysis on the ten-day
interval between when Hopkins first learned of Anderson’s disability (November
26) and when she first indicated that Anderson had been identified for termination
(December 6). Cf. Lissick v. Andersen Corp., 996 F.3d 876, 886-87 (8th Cir. 2021)
(in determining whether temporal proximity demonstrates causation necessary to

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support Family Medical Leave Act (FMLA) retaliation claim, court looks to date
employer knew of employee’s use or planned use of FMLA leave, not date that leave
ended).
We have held that an employer’s decision to terminate an employee within a
“matter of weeks” of learning of the employee’s potentially debilitating condition
was sufficient to establish a prima facie case of disability discrimination. See
Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir.
2001) (holding a “matter of weeks” was sufficient proximity to establish a prima
facie case of disability discrimination, but not to show pretext). In the retaliation
context, although we have “refrained from ‘draw[ing] a definitive line,’ we have
recognized that ‘[m]ore than two months is too long to support a finding of causation
without something more.’” See Lors, 746 F.3d at 865-66 (alteration in original)
(quoting Sisk, 669 F.3d at 901). We have also held that a two-week interval is
sufficient to establish causation for purposes of establishing a prima facie case, “but
barely so.” See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002)
(holding two-week interval was sufficient proximity to establish prima facie case,
and noting this holding was consistent with overarching philosophy of McDonnell
Douglas system of proof, which requires only minimal showing before requiring
employer to explain its actions). Here, the interval was ten days. That is sufficient
to establish causation based on temporal proximity at the prima facie stage for
Anderson’s disability discrimination claim and his retaliation claim.
We next turn to whether ADESA has proffered a legitimate, non-
discriminatory, and non-retaliatory reason for Anderson’s termination. “The burden
to articulate a nondiscriminatory justification is not onerous, and the explanation
need not be demonstrated by a preponderance of the evidence.” Floyd v. Mo. Dep’t
of Soc. Servs., Div. of Fam. Servs., 188 F.3d 932, 936 (8th Cir. 1999). ADESA
explained that: it implemented a RIF following the merger and the restructuring of
its sales team; Anderson’s sales region had one more “hunter” than necessary;
Anderson was selected for the RIF because his sales numbers were the lowest among
his peers and because two customers had complained that they did not “mesh” with

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him; and although there was a “farmer” position available, Anderson’s skillset was
more closely aligned with a “hunter” position. These proffered explanations satisfy
ADESA’s burden under step two of the McDonnell Douglas framework. See Rahlf
v. Mo-Tech Corp., Inc., 642 F.3d 633, 638 (8th Cir. 2011) (concluding RIF was
legitimate, nondiscriminatory justification for layoffs).
Turning to pretext, we have recognized several ways a plaintiff may create a
genuine issue of material fact regarding whether an employer’s proffered
explanation is pretext for discrimination. One of those ways is “by persuading the
court that a prohibited reason more likely motivated the employer.” Torgerson v.
City of Rochester, 643 F.3d 1031, 1047 (8th Cir. 2011) (citation omitted) (cleaned
up). “Though the burden is on the plaintiff to provide evidence of pretext, to survive
summary judgment she need not definitively prove that her employer’s reason for
firing her was pretextual—rather, she simply must ‘adduc[e] enough admissible
evidence to raise genuine doubt as to the legitimacy of the defendant’s motive.’”
Hairston v. Wormuth, 6 F.4th 834, 843 (8th Cir. 2021) (alteration in original)
(quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 854 (8th Cir. 2012)).
Anderson argues that a reasonable jury could determine that Hopkins made
the decision to terminate Anderson because of his medical restriction, and only
retroactively claimed a performance-based concern after HR advised her that
terminating an employee due to his disability could be “an issue.” We agree. Before
his seizure, Anderson had only positive feedback about his role post-merger. And
after his seizure, Anderson’s supervisors “pushed hard” to accommodate him. By
December 6, however, ADESA had changed course regarding Anderson. The
evidence shows that Hopkins sent an email to HR about an employee with a “medical
restriction” who had been “identified” for termination, asking if this could be “an
issue.” Only after she learned that it could be a problem did Hopkins respond with
specific criticisms of his performance. ADESA argues that, because Anderson does
not dispute he was underperforming compared to his peers, there can be no pretext.
But neither Comer nor Hopkins was able to say when they took these performance
assessments into consideration. A reasonable jury could conclude that Hopkins

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looked into Anderson’s job performance only after she learned of his disability and
accommodation request and had decided to terminate him.
Drawing all reasonable inferences in Anderson’s favor, Anderson has raised
genuine doubt as to ADESA’s proffered reasons for his termination. “Because the
employer’s ‘motive and intent are at the heart of a discrimination case,’ the central
inquiry ‘is whether [disability] was a factor in the employment decision at the
moment it was made.’” E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 570 (8th
Cir. 2007) (alteration in original) (emphasis in original) (quoting Sabree v. United
Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 403 (1st Cir. 1990)). “An
employer is prohibited from inventing a ‘post hoc rationalization for its actions at
the rebuttal stage of the case.’ Therefore, unless the employer articulates a
legitimate, nondiscriminatory reason for [terminating] the plaintiff that ‘actually
motivated the decision, the reason is legally insufficient.’” Id. (emphasis in original)
(citations omitted) (quoting Sabree, 921 F.2d at 404)). A reasonable jury could
conclude that Hopkins was unaware of Anderson’s professional shortcomings at the
time she first identified him for termination, and thus this post hoc rationale could
not have factored into her termination decision.1
III. Conclusion
Because there remains a genuine issue of material fact as to whether ADESA’s
proffered reasons for Anderson’s termination were pretext for discrimination and
retaliation, the judgment of the district court is reversed and remanded for further
proceedings.
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1 The parties dispute whether the but-for causation standard outlined in
Bostock v. Clayton County, 140 S. Ct. 1731 (2020) applies to ADA cases. Because
we conclude that Anderson has produced sufficient evidence to raise genuine doubt
as to the legitimacy of ADESA’s motive, we decline to address this question.

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