Title VII Retaliation Claims Hinging On Circumstantial Evidence Remain Governed By McDonnell Douglas

Kollman & Saucier
Kollman & Saucier

Two years ago, in University of Texas Southwestern Medical Center v. Nassar, the Supreme Court heightened the causation standard for employees claiming retaliation based on direct evidence (such as explicitly discriminatory statements made by supervisors) under Title VII.  Plaintiffs must prove “but for” causation.

What about the situation in which an employee relies solely on circumstantial evidence? Does Nassar’s “but-for” standard apply to these claims? No, according to the Fourth Circuit. Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015). The court held that “the McDonnell Douglas framework, which already incorporates a but-for causation analysis, provides the appropriate standard” in such claims.

Iris Foster worked as a campus police officer for the University of Maryland-Eastern Shore. Like other new hires, Foster was subject to an initial six-month probationary period. Foster was subjected to repeated sexual harassment by a co-worker. Foster notified her supervisor and HR.  The university investigated the incidents and disciplined the harassing co-worker.

Meanwhile, Foster had her probationary period extended by an additional six months.  Foster complained to her supervisors that the extension of her probation was retaliatory, as were alleged changes in her schedule, denial of light duty and tuition remission, and prohibiting her from attending a training session while on injury leave. Less than a month after final complaint, Foster was terminated.

After Foster sued the university for retaliation under Title VII, among other things, the university moved for summary judgment because Foster had not shown a sufficient causal connection between her complaints and her termination. Foster’s supervisors justified her termination primarily on the grounds that she used her leave quickly, was inflexible about adjusting her shift hours, and was not a team player. During her deposition, the university’s HR officer candidly stated that “everything that every happened [Foster] attributed to the sexual harassment complaint,” and that Foster “couldn’t move on” or “get past [the harassment].”

The district court originally denied the university’s motion. After the Supreme Court’s decision in Nassar, however, the court reconsidered and entered judgment in the university’s favor, concluding that Foster had not shown that retaliation was “the determinative reason” for her termination. Foster appealed.

A three-judge panel unanimously reversed the summary judgment. The court held that Nassar only applied to bar “mixed-motive” retaliation claims based on direct evidence and did not govern cases like Foster’s based on pretext. According to the panel, the familiar three-step McDonnell Douglas framework still applies, absent any explicit indication that the Supreme Court intended to overrule it in Nassar.

Title VII retaliation claims in the Fourth Circuit based on pretext are analyzed under as follows: First, the plaintiff must establish: (1) that he or she “engaged in protected activity,” (2) that the employer took adverse action against him or her, and (3) that “a causal relationship existed between the protected activity and the adverse employment action.” Second, the employer must put forward evidence of a legitimate, non-discriminatory reason for the adverse employment action. Third, the employee must establish that the employer’s explanation is pretextual, i.e., “both that the [employer’s] reason was false and that [retaliation] was the real reason for the challenged conduct.”

Applying this framework, the court held that the university’s summary judgment motion should have been denied. Despite the university’s non-discriminatory reasons for the termination, the court held that Foster put forward evidence from which a reasonable jury could conclude that those were not the real reasons (such as the lack of documentation of her alleged schedule inflexibility and the failure to provide Foster with a reason for her termination at the time it made the decision) and that retaliation was the real reason. The case will now proceed to trial.

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