Labor & Employment — McDonnell Douglas Retaliation Test Unchanged

Foster v. University of Maryland-Eastern Shore (Lawyers Weekly No. 15-01-0529, 29 pp.) (Floyd, J.) No. 14-1073, May 21, 2015; USDC at Baltimore, Md. (Grimm, J.) 4^th Cir.

Holding: The 4th Circuit reverses summary judgment for a university that terminated a campus police officer after she complained about sexual harassment by a male officer; the U.S. Supreme Court’s 2013 decision in Univ. of Texas SW Medical Ctr. v. Nassar did not alter the McDonnell Douglas analysis for retaliation claims.

The Nassar decision, 133 S. Ct. 2517 (2013), held that a successful retaliation plaintiff must prove retaliatory animus was a but-for cause of the challenged adverse employment action, eliminating mixed-motive liability under the “lessened” motivating factor test.

Here, the district judge said that under the new Nassar standard, plaintiff could no longer satisfy the elements of a prima facie case. The lower court said the evidence may have been sufficient to allow a reasonable jury to find a causal link between plaintiff’s complaint and her termination, but it was “wholly insufficient” to allow a reasonable jury to find that her protected activity was the determinative reason for her termination under Nassar.

Clearly, Nassar significantly altered the causation standard for claims based on direct evidence of retaliatory animus by rejecting the “mixed motive” theory of liability for retaliation claims. However, the Nassar court was silent as to the application of but-for causation in McDonnell Douglas pretext cases.

Our sister circuits disagree as to whether Nassar has any bearing on the causation prong of the prima facie case. We conclude it does not.

The McDonnell Douglas framework already incorporates a but-for causation analysis. Because we conclude Nassar did not alter the McDonnell Douglas analysis for retaliation claims, we reverse in part summary judgment for employer.

Taken together, plaintiff’s evidence shows causation. She points to the university human relations director’s statement that plaintiff attributed everything that happened to her to the sexual harassment incident, for which her coworker had been disciplined, and the temporal proximity between her final complaint of retaliation and her termination a month later. The university claims it fired plaintiff because she used too much leave time, was inflexible and unwilling to accommodate changes to her schedule and moved furniture and edited office forms without permission.

Plaintiff responds the university’s reasons are pretextual because: 1) her immediate supervisor and the department scheduler both testified that plaintiff was not inflexible in scheduling; 2) a supervisor testified there was no documentation of plaintiff’s supposed inflexibility in her personnel file; 3) plaintiff’s immediate supervisor testified plaintiff had been given permission to edit the office forms and the supervisor had initially praised her work; 4) plaintiff’s immediate supervisor repeatedly praised her work and discussed promoting her to corporal before she made her sexual harassment complaint; and 5) the university did not initially provide a reason for her termination.

A reasonable jury could conclude the university’s proffered justifications were not its real reasons for firing plaintiff. Summary judgment for the university was not warranted on the retaliation claim.

However, summary judgment for employer was justified on plaintiff’s gender-based discrimination and hostile work environment claims.

Affirmed in part, reversed in part and remanded.