Fourth Circuit Holds But-for Cause Not Required for Prima Facie Retaliation Case, Advances Circuit Split

Practical Law Legal Update 3-614-3789 (Approx. 8 pages)

Fourth Circuit Holds But-for Cause Not Required for Prima Facie Retaliation Case, Advances Circuit Split

by Practical Law Labor & Employment

Background

In March 2007, Iris Foster began work as a campus police officer at the University of Maryland-Eastern Shore, subject to a six-month probationary period. She immediately encountered sexually harassing behavior from a supervisor (Jones). Foster told the head of the department, then the human resources director, about Jones' inappropriate conduct. Jones was disciplined for his behavior. Foster alleged that after she complained about Jones, the university:

Extended her probation period six months.
Changed her schedule without notice.
Denied her tuition remission.
Denied her a light duty assignment and a training session after an injury.

Foster complained about these incidents as well, and her employment was terminated on October 29, 2007. Her employers gave multiple justifications for Foster's termination. The Maryland Office of Administrative Hearings rejected Foster's appeal of the termination and the EEOC found insufficient evidence to support her complaint. Foster filed a lawsuit alleging Title VII violations for discriminatory termination based on gender, retaliatory termination and hostile work environment.

The district court ultimately granted the university summary judgment on each claim, relying on an interpretation of the US Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, that required Foster to show retaliation was the but-for cause of her termination when making her prima facie retaliation case (133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013)).

Foster appealed to the Fourth Circuit.

Outcome

The Fourth Circuit:

Reversed the summary judgment on the Title VII retaliation claim and remanded because:
- the district court misinterpreted Nassar as altering the McDonnell Douglas burden-shifting framework as applied to retaliation claims (411 U.S. 792, (1973)); and
- when the appropriate burden of persuasion was applied, Foster made a prima facie case and raised enough evidence that a jury could find the university's proffered justifications for the termination were pretextual.
Joined the Circuits that interpret Nasser as not affecting how the McDonnell Douglas framework applies to Title VII retaliation cases.

In particular, the Fourth Circuit:

Noted that:
- it has traditionally analyzed Title VII retaliation cases as it would Title VII discrimination cases and permitted plaintiffs to make their cases either through a mixed-motive or McDonnell Douglas framework (Hill v. Lockheed Martin Logistics Mgmt., Inc. 354 F.3d 277, 284-85 (4th Cir. 2004); Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004));
- McDonnell Douglas has long demanded that plaintiffs show a causal link between their protected action and adverse employment actions to make a prima facie retaliation case. Only when employers produce evidence of legitimate non-retaliatory reasons for taking the adverse actions, must plaintiffs show that the employer's reasons were false and that retaliation was the real reason for the challenged conduct;
- in Nassar, the Supreme Court held that an employee alleging Title VII retaliation under the direct evidence framework must prove that the employer's retaliatory motive was the but-for cause of the adverse employment action and not just a motivating factor;
- Nassar, which involved a post-judgment motion for judgment as a matter of law in a mixed motive case did not address the standard for prima facie retaliation cases under the pretext (McDonnell Douglas) framework;
- some circuit courts have held that Nassar modifies the McDonnell Douglas framework as applied to retaliation cases by requiring plaintiffs to show retaliation was the but-for cause for adverse actions against them to make a prima facie retaliation using the pretext framework (see EEOC v. Ford Motor Co., No. 12-2484, at *14 (6th Cir. Apr. 10, 2015); Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014); Beard v. AAA of Mich., 593 F. App’x 447, 451 (6th Cir. 2014); Smith v. City of Fort Pierce, Fla., 565 F. App’x 774, 778–79 (11th Cir. 2014));
- other courts have held that Nassar does not modify the McDonnell Douglas framework as applied to retaliation cases (see Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th Cir. 2014); Butterworth v. Lab. Corp. of Am. Holdings, 581 F. App’x 813, 817 (11th Cir. 2014) (per curiam); Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 336 (5th Cir. 2014); Feist v. La. Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)); and
- based on Nassar, the mixed-motive framework can no longer be used in Title VII retaliation claims.
Held that:
- Nassar has no bearing on the requirements for a prima facie retaliation case under the McDonnell Douglas framework;
- the district court erred by finding that Nassar required the plaintiff to show retaliation was the but-for cause for the challenged conduct when making her prima facie retaliation case under the McDonnell Douglas framework; and
- the district court erred by finding that Nassar heightened the causation standard and demanded that a plaintiff do more to survive summary judgment than show that a reasonable jury could find that the employer's reasons for the challenged conduct were false and retaliation was the real reason for the conduct.
Found (as the district court had before reconsidering its decision after Nassar)) that Foster made a prima facie case and produced enough evidence for a jury question of pretext, including:
- statements of retaliatory animus;
- temporal proximity of the termination; and
- the HR director's statement that Foster always attributed "everything" to her earlier sexual harassment complaint.

The court also affirmed summary judgment for the university on the gender discrimination and hostile work environment claims because:

Foster failed to make out a prima facie case of a gender-based discriminatory termination because she did not show she was replaced by a comparably qualified male officer.
No reasonable jury could find that Jones' alleged harassment was imputable to the university. Foster failed to create a jury question of whether the university reasonably should have anticipated that Jones would sexually harass her.

Practical Implications

Circuit courts continue to rule whether Nassar affects burdens for prima facie retaliation cases under the McDonnell Douglas framework. The divide between the circuits suggests that employers should:

Expect some forum shopping by shrewd plaintiffs' counsel.
Adjust risk calculi depending on which circuit pending cases arise in.
Stay tuned for appeals to the Supreme Court to resolve the emerging circuit split.

Fourth Circuit Holds But-for Cause Not Required for Prima Facie Retaliation Case, Advances Circuit Split | Practical Law