Foster v. University of Maryland-Eastern Shore ( 2015 )


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  •                               PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-1073
    IRIS FOSTER,
    Plaintiff - Appellant,
    v.
    UNIVERSITY OF MARYLAND-EASTERN SHORE,
    Defendant - Appellee.
    ------------------------
    METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION,
    Amicus Supporting Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.      Paul W. Grimm, Magistrate Judge;
    Timothy J. Sullivan, Magistrate Judge. (1:10-cv-01933-TJS)
    Argued:   January 27, 2015                 Decided:   May 21, 2015
    Before KEENAN, WYNN, and FLOYD, Circuit Judges.
    Affirmed in part, reversed in part, and remanded by published
    opinion. Judge Floyd wrote the opinion, in which Judge Keenan
    and Judge Wynn joined.
    ARGUED: Leizer Z. Goldsmith, THE GOLDSMITH LAW FIRM, LLC,
    Washington, D.C., for Appellant.  Carl N. Zacarias, OFFICE OF
    THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
    Appellee.   ON BRIEF:  Douglas F. Gansler, Attorney General of
    Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
    Maryland, for Appellee.    Richard R. Renner, KALIJARVI, CHUZI,
    NEWMAN & FITCH, P.C., Washington, D.C.; Denise M. Clark, CLARK
    LAW GROUP, PLLC, Washington, D.C.; Ellen K. Renaud, SWICK &
    SHAPIRO, Washington, D.C., for Amicus Curiae.
    2
    FLOYD, Circuit Judge:
    This    appeal     concerns       the       effect   of   the   Supreme      Court’s
    decision in University of Texas Southwestern Medical Center v.
    Nassar, 
    133 S. Ct. 2517
     (2013), on what Title VII retaliation
    plaintiffs must show to survive a motion for summary judgment.
    In   Nassar,      the     Court    held       that     a    successful       retaliation
    plaintiff must prove that retaliatory animus was a but-for cause
    of the challenged adverse employment action, eliminating mixed-
    motive liability under the “lessened” motivating factor test.
    However, the Nassar Court was silent as to the application of
    but-for causation in McDonnell Douglas pretext cases.                              Because
    we   conclude     that    Nassar    did       not   alter    the     McDonnell     Douglas
    analysis for retaliation claims, we reverse in part the district
    court’s grant of summary judgment.
    I.
    On    March   12,    2007,    Plaintiff-Appellant               Iris   Foster    was
    hired by Defendant-Appellee the University of Maryland-Eastern
    Shore      (the   University)      as     a       campus    police    officer. 1       Her
    1
    In reviewing de novo the district court’s order granting
    summary judgment to the University, we “view the facts and all
    justifiable inferences arising therefrom in the light most
    favorable to” Foster, as the nonmoving party. Libertarian Party
    of Va. v. Judd, 
    718 F.3d 308
    , 312 (4th Cir. 2013).          The
    following statement of facts conforms to this standard.
    3
    appointment    was    subject    to   a   standard    six-month      probationary
    period, during which she was essentially an at-will employee.
    The campus police department was supervised by Lawrence Wright.
    Rudolph Jones, one of Foster’s new coworkers, supervised the
    campus security guards and reported directly to Wright.                    Foster
    and Jones worked in the same building.
    According to Foster’s uncontradicted evidence, Jones began
    sexually harassing Foster before she even started work: He spied
    on her while she was being fitted for her new uniform in a state
    of partial undress.           The harassment continued during Foster’s
    first month on the job.           Among other things, Jones stared at
    her,   made   lewd    or   suggestive     comments    about   her,    kissed   and
    pinched her on the cheek, and pressed his groin against her
    buttocks while laying his arm across her breasts.
    A month after the harassment began, Foster notified her
    superiors about Jones’s inappropriate sexual conduct.                     First,
    she spoke to Wright, who tried to resolve the matter informally
    by meeting with Foster and Jones that same day.                      Foster then
    told the University’s Director of Human Resources, Marie Billie,
    that Jones had sexually harassed her, and later sent Billie a
    written complaint detailing Jones’s harassment.
    Billie investigated Foster’s allegations and concluded that
    Jones had acted inappropriately.              She therefore recommended to
    the    University’s    Vice     President     for    Administrative     Affairs,
    4
    Ronnie Holden, that he discipline Jones.                     Among other things,
    Billie recommended that Holden transfer Jones away from his role
    as supervisor of campus security guards, require him to take
    sexual    harassment   training,     and      require     him     to   sign    a   “Last
    Chance    Agreement”      putting   him       on    notice      that   he     would   be
    immediately terminated upon any further violation of University
    policy.    Holden immediately adopted Billie’s recommendations and
    punished Jones accordingly. 2
    According to Foster, however, she was also punished by the
    University     for   complaining    about      Jones.        A   few   weeks       before
    Foster’s probationary period was to end, Wright extended her
    probation by an additional six months.                   Although the department
    regularly extended the probation of all new hires pursuant to
    University policy, Foster claims that her probation was extended
    in retaliation for her complaints.                  Foster further claims that
    the   University     retaliated     against        her   over    the   next     several
    months    by   changing    her   schedule      without       notice,    denying       her
    tuition remission, denying her light duty following an injury,
    and barring her from attending a training session while she was
    on injury leave.       During this time, Foster complained repeatedly
    2
    Foster does not allege that Jones engaged in any further
    sexual harassment after he was disciplined.
    5
    to     Wright     and     Billie    about       the    perceived      incidents     of
    retaliation.
    Less than a month after Foster’s last complaint, Wright
    recommended Foster for termination. 3                 Billie and Holden reviewed
    Wright’s recommendation and ultimately agreed that Foster should
    be fired.       Holden notified Foster of her termination on October
    29, 2007, in a letter that did not explain the reasons for
    Foster’s termination.
    During the course of this litigation, Billie and Holden
    have provided several justifications for firing Foster.                           They
    observed that Foster had used almost all of her personal and
    sick leave for the year in relatively short time; that she was
    inflexible when asked to come in early or stay past the end of
    her scheduled shift; and that she was not a team player.                          They
    also       allegedly    observed    that   Foster      had   been    disciplined    by
    Wright for moving a table into a police holding cell without
    permission—purportedly             threatening        officer       safety—and     for
    revising certain interoffice forms. 4
    3
    Because Foster was still on probation, she was technically
    “rejected on probation.”     J.A. 124, 1049.    For the sake of
    clarity, we refer to this rejection as a termination.
    4
    Foster and one of her coworkers testified that Foster
    edited the forms at Wright’s request and that Wright praised the
    work. Wright issued a written reprimand to Foster regarding the
    forms on June 4, 2014—two months after Foster edited the forms,
    and one day before Billie disciplined Jones.
    6
    In her deposition, Billie candidly offered an additional
    reason for terminating Foster: “everything that ever happened
    [Foster] attributed to the sexual harassment complaint,” and she
    “couldn’t move on” or “get past [the harassment].”                          J.A. 323–24.
    Billie    believed       that     Foster    was    fixated       on     her    harassment
    experience       and   became     preoccupied      with    it.        She     agreed   that
    Foster    was    an    “unacceptable       fit”    for    the    position       of    police
    officer     because       she     complained       too    often       about     perceived
    retaliation.       J.A. 323.
    Foster       appealed       her     termination,          first       through      the
    University       System     of    Maryland       Grievance      Procedure       and    then
    before the state Office of Administrative Hearings.                            A Maryland
    Administrative Law Judge rejected her appeal.                      Foster then filed
    a   complaint     with      the   Equal    Employment      Opportunity         Commission
    (EEOC),     which      found      insufficient       evidence         to    support      her
    complaint and issued a right-to-sue letter.                      Foster subsequently
    initiated       this   suit.      Her     complaint      alleges      three     causes    of
    action under Title VII of the Civil Rights Act of 1964, 42
    U.S.C.    § 2000e      et    seq.:      discriminatory       termination        based     on
    gender, retaliatory termination, and the creation of a hostile
    work environment.
    The district court granted the University summary judgment
    on the discriminatory termination and hostile work environment
    claims, but denied summary judgment on the retaliation claim.
    7
    After working through the McDonnell Douglas framework, it held
    that (1) “a reasonable jury could find that [the] instances in
    which Defendant made it more difficult for Plaintiff to work and
    attend    training”   demonstrated       retaliatory     animus    that   was
    “causally related” to her termination, J.A. 1070, and (2) “a
    reasonable jury could conclude that the proffered reasons for
    termination were pretextual,” J.A. 1075 (internal quotations and
    brackets omitted).
    The University filed a motion for reconsideration in light
    of the Supreme Court’s intervening decision in University of
    Texas Southwestern Medical Center v. Nassar, 
    133 S. Ct. 2517
    (2013), which clarified the causation standard for Title VII
    retaliation claims.    The district court 5 granted the University’s
    motion for reconsideration and motion for summary judgment, this
    time determining that summary judgment was warranted on Foster’s
    retaliation claim under the causation standard articulated in
    Nassar.     The   court   concluded      that,   under    the     new   Nassar
    standard, Foster could no longer satisfy the elements of a prima
    5
    The University’s summary judgment motion was first decided
    by Magistrate Judge Paul Grimm, to whom the case had been
    referred for all proceedings and the entry of judgment in
    accordance with 
    28 U.S.C. § 636
    (c) and with the parties’
    consent.      Before  the   University  filed   its  motion   for
    reconsideration, Magistrate Judge Grimm was confirmed as a
    United States District Judge, and the case was reassigned to
    Magistrate Judge Timothy Sullivan.
    8
    facie    case:   “While      the   evidence        may      have   been    sufficient      to
    allow a reasonable jury to find a ‘causal link’ between her
    complaint    and   her      termination,          it   is    wholly      insufficient      to
    allow a reasonable jury to find that her protected activity was
    the   determinative         reason   for      her      termination        under    Nassar.”
    J.A. 1166.
    Foster timely appealed the grant of summary judgment as to
    all three claims.           We have jurisdiction over final judgments of
    the district court pursuant to 
    28 U.S.C. § 1291
    .
    II.
    We review a grant of summary judgment de novo.                               Evans v.
    Techs. Applications & Serv. Co., 
    80 F.3d 954
    , 958 (4th Cir.
    1996).      “Summary      judgment       is   appropriate          when    ‘there     is   no
    genuine    dispute     as    to    any   material           fact   and    the     movant   is
    entitled to judgment as a matter of law.’”                         Bostic v. Schaefer,
    
    760 F.3d 352
    , 370 (4th Cir. 2014) (quoting Fed. R. Civ. P.
    56(a)).     “A dispute is genuine if a reasonable jury could return
    a verdict for the nonmoving party.”                      Libertarian Party of Va.,
    718 F.3d at 313 (internal quotation marks omitted).                             “A fact is
    material if it ‘might affect the outcome of the suit under the
    governing law.’”         Id. (quoting Anderson v. Liberty Lobby, Inc.,
    
    477 U.S. 242
    , 248 (1986)).               “We are required to view the facts
    and all justifiable inferences arising therefrom in the light
    9
    most favorable to the nonmoving party . . . .”                              
    Id. at 312
    .       In
    doing      so,    we     must    not     weigh       evidence    or     make      credibility
    determinations.              Mercantile Peninsula Bank v. French, 
    499 F.3d 345
    , 352 (4th Cir. 2007).                    “[C]ourts may not resolve genuine
    disputes         of    fact     in   favor       of    the    party      seeking         summary
    judgment.”            Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1866 (2014) (per
    curiam).
    III.
    To    determine         whether    Foster’s          retaliation       claim      survives
    the     University’s           summary     judgment          motion,        we   must     first
    determine how Nassar affects a Title VII retaliation plaintiff’s
    burden at the summary judgment stage.                           We conclude that the
    McDonnell Douglas framework, which already incorporates a but-
    for causation analysis, provides the appropriate standard for
    reviewing Foster’s claim.
    A.
    Title            VII      prohibits             an      employer           from       both
    (i) discriminating against an employee on the basis of sex, and
    (ii) retaliating against an employee for complaining about prior
    discrimination           or   retaliation.            42    U.S.C.     §§    2000e-2(a)(1),
    2000e-3(a).             Plaintiffs       may     prove       these     violations         either
    through direct and indirect evidence of retaliatory animus, or
    10
    through the burden-shifting framework of McDonnell Douglas Corp.
    v. Green, 
    411 U.S. 792
     (1973).                      Price v. Thompson, 
    380 F.3d 209
    ,
    212   (4th     Cir.       2004).        We     have     also      referred       to    these     two
    “avenues       of      proof”    as    the     “mixed-motive”             framework       and    the
    “pretext”       framework,           respectively.           Hill     v.     Lockheed      Martin
    Logistics Mgmt., Inc., 
    354 F.3d 277
    , 284–85 (4th Cir. 2004) (en
    banc).    It      is    left     to    the     plaintiff’s          discretion         whether    to
    proceed    by       direct      and    indirect         evidence      or    by     mean    of    the
    McDonnell         Douglas        burden-shifting           framework.                 Diamond     v.
    Colonial Life & Accident Ins. Co., 
    416 F.3d 310
    , 318 n.4 (4th
    Cir. 2005) (“In the event that a plaintiff has direct evidence
    of    discrimination           or     simply       prefers     to    proceed       without       the
    benefit      of     the      burden-shifting            framework,         she    is    under     no
    obligation to make out a prima facie case.”).
    Historically,            we    have     considered         Title      VII      retaliation
    claims under the same standard as discrimination claims.                                        See,
    e.g., Price,           
    380 F.3d at 212
        (analyzing        a    retaliation      claim
    under the pretext framework); Kubicko v. Ogden Logistics Servs.,
    
    181 F.3d 544
    , 546 (4th Cir. 1999) (analyzing a retaliation claim
    under    the      mixed-motive         framework).           In     light    of    the    Supreme
    Court’s recent decision in Nassar, however, that no longer holds
    true.     Previously, a retaliation plaintiff only needed to show
    that his or her “employer was motivated to take the adverse
    employment action by both permissible and forbidden reasons.”
    
    11 Hill, 354
     F.3d at 284 (citing 42 U.S.C. § 2000e-2(m)).                          So long
    as retaliatory animus was a motivating factor of the adverse
    employment      action,       the    employee       could     recover—even       if    the
    employer would have taken the same adverse employment action in
    the absence of such animus.             Id.
    In     Nassar,     however,      the    Supreme        Court    held     that    the
    lessened causation standard of § 2000e-2(m) does not apply to
    retaliation claims.           
    133 S. Ct. at 2533
    .             Unlike discrimination
    plaintiffs, retaliation plaintiffs are limited to “traditional
    principles of but-for causation” and must be able to prove that
    “the unlawful retaliation would not have occurred in the absence
    of the alleged wrongful action or actions of the employer.”                           
    Id.
    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. 6         Cf. Harris v. Powhatan Cnty. Sch. Bd., 543
    F. App’x 343, 346 (4th Cir. 2013) (noting that the Supreme Court
    in   Gross    v.   FBL    Fin.      Serv.    Inc.,    
    557 U.S. 167
        (2009),    an
    analogous     case     upon    which    the       Nassar    court     relied    heavily,
    6
    Retaliation plaintiffs may still proceed by direct and
    indirect evidence, but in our experience it is the rare case in
    which an employer admits not just to possessing an impermissible
    motive, but also to acting upon it.
    12
    eliminated mixed-motive liability under the ADEA). 7                 However,
    Foster does not claim to proceed by direct evidence. 8                Rather,
    she proceeds under the pretext framework, which Nassar does not
    purport to address.        We must therefore decide what effect, if
    any, Nassar has on a retaliation plaintiff’s burden under the
    McDonnell Douglas framework.
    B.
    The   McDonnell   Douglas   framework   is   a   three-step    burden-
    shifting framework used by Title VII plaintiffs who lack direct
    evidence of retaliatory discrimination.             Diamond, 
    416 F.3d at 318
    .       To prevail under the McDonnell Douglas framework, Foster
    must first establish a prima facie case by showing: (i) “that
    [she] engaged in protected activity,” (ii) “that [her employer]
    took adverse action against [her],” and (iii) “that a causal
    relationship     existed   between   the   protected    activity     and   the
    adverse employment activity.”          Price, 
    380 F.3d at 212
    .             The
    7
    Because Nassar is functionally an extension of Gross, see
    
    133 S. Ct. at 2523
    , our cases applying Gross prove instructive
    here.
    8
    Foster’s opening brief limits its discussion of direct
    evidence to an isolated footnote, Appellant’s Br. at 54 n.41,
    and we therefore conclude that she has waived this argument on
    appeal.   See Wahi v. Charleston Area Med. Ctr., Inc., 
    562 F.3d 599
    , 607 (4th Cir. 2009) (finding that an argument raised only
    in a footnote in appellant’s opening brief was waived on
    appeal).
    13
    burden    then       shifts        to        the    University          to        show    that     its
    purportedly      retaliatory            action          was    in    fact    the     result       of    a
    legitimate non-retaliatory reason.                            Hill, 
    354 F.3d at 285
    .                   If
    the employer makes this showing, the burden shifts back to the
    plaintiff to rebut the employer’s evidence by demonstrating that
    the employer’s purported nonretaliatory reasons “were not its
    true    reasons,       but   were        a    pretext          for   discrimination.”              
    Id.
    (quoting Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 143 (2000)); see also Merritt v. Old Dominion Freight Line,
    Inc.,    
    601 F.3d 289
    ,       295       (4th       Cir.    2010).        In     this    way,       a
    plaintiff      is    able      to       prove       causation         even        without     direct
    evidence of retaliatory animus: If a plaintiff can show that she
    was fired under suspicious circumstances and that her employer
    lied about its reasons for firing her, the factfinder may infer
    that    the    employer’s          undisclosed            retaliatory         animus        was    the
    actual cause of her termination.                         Reeves, 
    530 U.S. at 148
     (“[A]
    plaintiff’s prima facie case, combined with sufficient evidence
    to find that the employer’s asserted justification is false, may
    permit    the       trier     of    fact           to     conclude        that      the     employer
    unlawfully discriminated.”).
    Thus,    Foster       must       establish             causation      at    two    different
    stages of the McDonnell Douglas framework: first, in making a
    prima facie case, and second, in proving pretext and satisfying
    14
    her       ultimate   burden    of   persuasion.       We   consider   the
    applicability of Nassar to each causation requirement in turn.
    1.
    Nassar involved a post-judgment motion for judgment as a
    matter of law in a mixed-motive case, and therefore did not
    address the elements of a prima facie case of retaliation under
    the pretext framework.        
    133 S. Ct. at 2524
    . 9   Our sister circuits
    disagree as to whether Nassar has any bearing on the causation
    prong of the prima facie case. 10         For the reasons that follow, we
    conclude that it does not. 11
    9
    See also Nassar v. Univ. of Tex. Sw. Med. Ctr., 
    674 F.3d 448
    , 454 (5th Cir. 2012) (“It goes without saying that, when a
    race-discrimination claim has been fully tried, as has this one,
    this court need not parse the evidence into discrete segments
    corresponding to a prima facie case, an articulation of a
    legitimate,   nondiscriminatory   reason  for   the   employer's
    decision, and a showing of pretext.” (quoting DeCorte v. Jordan,
    
    497 F.3d 433
    , 437–38 (5th Cir. 2007))), rev’d, 
    133 S. Ct. 2517
    (2013).
    10
    The law in our sister circuits is muddled. Some courts
    require evidence of but-for causation in order to establish a
    prima facie case. See EEOC v. Ford Motor Co., No. 12–2484, 
    2015 WL 1600305
     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) (per curiam).
    Other courts have held, either expressly or implicitly, that
    Nassar did not alter the elements of a prima facie case.    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
    (Continued)
    15
    As     an     initial       matter,    the       causation      standards        for
    establishing a prima facie retaliation case and proving pretext
    are    not     identical.           Rather,       the    burden   for     establishing
    causation at the prima facie stage is “less onerous.”                           Williams
    v.    Cerberonics,         Inc.,    
    871 F.2d 452
    ,    457    (4th    Cir.    1989).
    Adopting the contrary rule (and applying the ultimate causation
    standard      at     the   prima    facie     stage)      would   be     tantamount     to
    eliminating the McDonnell Douglas framework in retaliation cases
    by restricting the use of pretext evidence to those plaintiffs
    who do not need it:            If plaintiffs can prove but-for causation
    at    the    prima    facie    stage,     they    will    necessarily      be    able   to
    (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).
    11
    In a recent published opinion, a panel of this Court
    stated the causation prong of the prima facie case as: “(3) that
    the protected activity was a ‘but-for’ cause of [Plaintiff’s]
    termination and not simply a ‘motivating factor.’”     Walker v.
    Mod-U-Kraf Homes, LLC, 
    775 F.3d 202
    , 210 (4th Cir. 2014) (citing
    Hill, 
    354 F.3d at 285
    ).      The Walker court assumed that the
    plaintiff had established a prima facie case, and therefore did
    not apply its proposed test. The court also gave no indication
    that its proposed change to the prima facie case resulted from a
    construction of Nassar. Language in a published opinion that is
    “unrelated to the ratio decidendi of [the] case” is properly
    regarded as dictum rather than binding precedent. United States
    v. Shepperson, 
    739 F.3d 176
    , 180 n.2 (4th Cir. 2014).    For the
    reasons that follow, we are unpersuaded that the Walker dictum
    reflects the best reading of Nassar and decline to adopt its
    restatement of the prima facie case.
    16
    satisfy their ultimate burden of persuasion without proceeding
    through the pretext analysis.          Conversely, plaintiffs who cannot
    satisfy their ultimate burden of persuasion without the support
    of   pretext   evidence     would    never   be   permitted    past   the    prima
    facie stage to reach the pretext stage. 12             Had the Nassar Court
    intended to retire McDonnell Douglas and set aside 40 years of
    precedent,     it   would   have    spoken   plainly   and    clearly   to   that
    effect.      Cf. Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 563
    (2007) (stating that the Conley pleading standard “has earned
    its retirement” and “is best forgotten”).              But it did not do so.
    We therefore hold that Nassar does not alter the causation prong
    of a prima facie case of retaliation. 13
    12
    The district court on reconsideration acknowledged that
    retaliation plaintiffs proceeding under McDonnell Douglas will
    need “to rely on [pretext] as evidence to show causation.” J.A.
    1167–68.    Nevertheless, the court held that it would not
    “determine whether the explanation [the University] previously
    provided for terminating Ms. Foster [was] pretextual” because
    Foster had failed to establish the causation prong of the prima
    facie case (without the use of pretext evidence).        
    Id.
     We
    decline to impose such a Catch-22 on retaliation plaintiffs.
    13
    This finding accords with our prior unpublished opinions
    concluding that the but-for causation standard for ADEA claims
    articulated by the Supreme Court in Gross does not apply at the
    prima facie stage. See, e.g., Arthur v. Pet Dairy, 593 F. App’x
    211, 217 n.4 (4th Cir. 2015) (per curiam) (noting that an a
    plaintiff   who   makes  out   a  prima  facie   case  of   ADEA
    discrimination must still prove “that his age was the but-for
    cause of his termination”); Harris, 543 F. App’x at 346–47;
    Billingslea v. Astrue, 502 F. App’x 300, 302 (4th Cir. 2012)
    (per curiam); Tuttle v. McHugh, 457 F. App’x 234, 237 (4th Cir.
    2011) (per curiam).
    17
    2.
    We next consider whether Nassar alters the pretext stage of
    the McDonnell Douglas framework.                Because the pretext framework
    already requires plaintiffs to prove that retaliation was the
    actual reason for the challenged employment action, we conclude
    that it does not.
    A     plaintiff   who        establishes      a   prima       facie   case    of
    retaliation bears the “ultimate burden of persuading the court
    that [she] has been the victim of intentional [retaliation].”
    Hill, 
    354 F.3d at 285
     (quoting Tex. Dep’t of Cmty. Affairs v.
    Burdine, 
    450 U.S. 248
    , 256 (1981)); see also Merritt, 
    601 F.3d at
    294–95 (identifying the “ultimate question” in any Title VII
    case under either framework as “discrimination vel non” (quoting
    U.S. Postal Serv. Bd. of Governors v. Aikens, 
    460 U.S. 711
    , 714
    (1983))).      In   order    to    carry    this   burden,     a    plaintiff     must
    establish “both that the [employer’s] reason was false and that
    [retaliation] was the real reason for the challenged conduct.”
    Jiminez v. Mary Washington Coll., 
    57 F.3d 369
    , 378 (4th Cir.
    1995) (quoting St. Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 515
    (1993)).
    Nassar’s but-for causation standard is not the “heightened
    causation standard” described by the district court, J.A. 1166–
    67, and does not demand anything beyond what is already required
    18
    by the McDonnell Douglas “real reason” standard. 14                        A plaintiff
    who   can   show   that    retaliation        “was   the        real   reason    for    the
    [adverse employment action],” Holland v. Wash. Homes, Inc., 
    487 F.3d 208
    , 218 (4th Cir. 2007), will necessarily be able “to show
    that the harm would not have occurred in the absence of—that is,
    but for—the defendant’s conduct,” Nassar, 
    133 S. Ct. at 2525
    (internal    quotation      marks    and      citation      omitted).           In   other
    words, the statements “the real reason for Foster’s termination
    was her employer’s retaliation” and “Foster would not have been
    terminated    but    for     her    employer’s        retaliatory          animus”      are
    functionally equivalent.
    We    conclude,       therefore,        that        the     McDonnell      Douglas
    framework    has    long   demanded    proof     at       the    pretext    stage      that
    retaliation    was     a    but-for    cause         of    a     challenged      adverse
    employment action.         Nassar does not alter the legal standard for
    adjudicating a McDonnell Douglas retaliation claim. 15
    14
    In the early days of McDonnell Douglas and before the
    advent of the mixed-motive framework, we stated clearly that the
    pretext stage requires proof of but-for causation.       Ross v.
    Commc’ns Satellite Corp., 
    759 F.2d 355
    , 365–66 (4th Cir. 1985)
    (“For the employee to disprove a legitimate nondiscriminatory
    explanation for adverse action, the third stage of the Burdine
    analysis, we determine that he must show that the adverse action
    would not have occurred ‘but for’ the protected conduct.”),
    abrogated by Price Waterhouse v. Hopkins, 
    490 U.S. 228
     (1989).
    15
    The Fifth Circuit has reached the same conclusion. See,
    e.g., Feist, 730 F.3d at 454 (“‘After the employer states its
    reason, the burden shifts back to the employee to demonstrate
    (Continued)
    19
    C.
    Having clarified the proper legal standard for assessing a
    Title VII retaliation claim in light of Nassar, we turn to the
    University’s motion for summary judgment.           In its initial, well-
    reasoned decision, the district court concluded that Foster’s
    evidence    was    “sufficient    to    generate   a     jury   question    on
    pretext.”   J.A. 1075.      We agree.
    We first consider whether Foster established a prima facie
    case of retaliation.        To establish a prima facie case, Foster
    must show “that [s]he engaged in protected activity, that [the
    University] took adverse action against [her], and that a causal
    relationship      existed   between    the   protected   activity   and    the
    adverse employment activity.”          Price, 
    380 F.3d at 212
    .      Only the
    causation prong is disputed on appeal.
    that   the  employer’s   reason   is  actually   a  pretext  for
    retaliation,’ which the employee accomplishes by showing that
    the adverse action would not have occurred ‘but for’ the
    employer’s retaliatory motive . . . .” (internal citations
    omitted) (citing Nassar, 
    133 S. Ct. at 2533
    )); Hague, 560 F.
    App’x at 336 (“An employee establishes pretext by showing that
    the adverse action would not have occurred ‘but for’ the
    employer’s retaliatory reason for the action.”) (citing Nassar,
    
    133 S. Ct. at
    2533–34); see also Scrivener v. Socorro Ind. Sch.
    Dist., 
    169 F.3d 969
    , 972 (5th Cir. 1999) (“To carry her ultimate
    Title VII burden, an employee must also show that her employer
    would not have taken the adverse employment action ‘but for’ the
    employee’s participation in the protected activity.”).
    20
    Foster     argues      that    she   can     show   causation       by     means   of
    (i) Billie’s statement of retaliatory animus; (ii) the temporal
    proximity between Foster’s final complaint of retaliation and
    her termination; and (iii) the additional retaliatory acts that
    preceded her firing.                Billie’s statement that Foster was fired
    because “everything that ever happened she [Foster] attributed
    to the sexual harassment complaint,” J.A. 323, suggests that
    Billie      and   Holden      fired    Foster     because     she    complained       about
    retaliation.        Foster’s evidence of temporal proximity also tends
    to show causation: according to her uncontradicted testimony,
    she    complained        to     Billie      about     perceived          retaliation       on
    September 21, 2007, and again on September 28, 2007, just a
    month before she was terminated. 16                   See King v. Rumsfeld, 
    328 F.3d 145
    , 151 & n.5 (4th Cir. 2003) (finding that a two-and-a-
    half     month     gap     between     protected      activity       and     an    adverse
    employment        action      was    sufficiently      narrow       to    establish       the
    causation prong of the prima facie case solely on the basis of
    temporal      proximity).              Taken      together,     this       evidence        is
    16
    The University               argues that, in considering temporal
    proximity, we may only               look to Foster’s initial complaint of
    harassment and not her                subsequent complaints of retaliation.
    This is plainly contrary              to law. See, e.g., Carter v. Bell, 
    33 F.3d 450
    , 460 (4th Cir.              1994) (finding temporal proximity where
    an employee was demoted               six weeks after a hearing on his EEO
    complaint).
    21
    sufficient to create a jury question regarding the causation
    prong of the prima facie case. 17
    Because Foster concedes that the University has proffered
    evidence    of   a    legitimate,         non-retaliatory         reason    for    her
    termination, we proceed to the pretext stage of the McDonnell
    Douglas inquiry.        The University claims to have fired Foster
    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.                            Foster
    argues that the University’s proffered non-retaliatory reasons
    are   pretextual     because:    (i) Foster’s       immediate      supervisor       and
    the   department     scheduler     both    testified      that     Foster    was   not
    inflexible in scheduling; (ii) Wright testified that there was
    no    documentation     of     Foster’s    supposed       inflexibility      in    her
    personnel   file;     (iii) Foster’s        immediate      supervisor       testified
    that Foster had been given permission to edit the office forms
    and that Wright had initially praised her work; (iv) Foster’s
    immediate supervisor repeatedly praised her work and discussed
    promoting her to corporal before she made her sexual harassment
    17
    Even if this evidence were insufficient, when considered
    together with Foster’s evidence of the University’s additional
    retaliatory acts—specifically, the denial of light duty and the
    denial of training—it would suffice to create a jury question
    regarding causation.
    22
    complaint;         and     (v) the    University          did       not    initially     provide
    Foster with a reason for her termination. 18
    From    this        evidence,       the    district          court     concluded      that
    Foster “render[ed] the employer’s reason so questionable as to
    raise an inference of deceit.”                         J.A. 1075 (citation omitted).
    We    agree.         A     reasonable      jury        could       conclude      from   Foster’s
    evidence that the University’s proffered justifications were not
    its   real     reasons       for     firing       her.         A    reasonable      jury    could
    further       conclude—as         required       by     Reeves       and    Nassar—that       the
    University’s actual reason for firing Foster was to retaliate
    against       her     for     complaining          about       Jones’s        alleged      sexual
    harassment          and     for     her    subsequent              complaints      of    ongoing
    retaliation.             We therefore find that summary judgment in favor
    of    the   University         is    not    warranted          on    Foster’s      retaliation
    claim.
    IV.
    Foster also appeals the district court’s grant of summary
    judgment      on     her    gender-based         discrimination            and    hostile    work
    18
    We note with some frustration that in setting out this
    evidence of pretext, Foster’s counsel failed to comply with Rule
    28(a)(8)(A) of the Federal Rules of Appellate Procedure, which
    requires that briefs contain “citations to the . . . parts of
    the record on which the appellant relies.”           Counsel is
    admonished to show greater respect for both his client’s
    interests and the Court’s time in his future appearances before
    this Court.
    23
    environment claims, which were not at issue in the University’s
    motion for reconsideration.           We consider each claim in turn.
    A.
    The district court found that Foster failed to make out a
    prima    facie   case     of     gender-based     discriminatory         discharge
    because she failed to show that she was replaced by a male
    police officer with comparable qualifications.                    See Causey v.
    Balog, 
    162 F.3d 795
    , 802 (4th Cir. 1998) (noting “comparable
    qualifications”       element    of   prima    facie    case).      Although    her
    replacement was male, the undisputed evidence shows that he was
    better qualified for the position.              Foster concedes this point,
    but argues that we should bypass our precedent and instead adopt
    the   approach   of    the   Sixth    Circuit,    which    does    not    impose   a
    comparable qualifications requirement.                 This argument—which she
    raises for the first time on the last page of her reply brief
    and is, in any event, waived—is unavailing.                      See McMellon v.
    United   States,   
    387 F.3d 329
    ,   332    (4th    Cir.   2004)     (en   banc)
    (affirming “the basic principle that one panel cannot overrule a
    decision issued by another panel”).                We therefore affirm the
    district court’s grant of summary judgment on Foster’s gender-
    based discrimination claim.
    24
    B.
    The district court also correctly granted summary judgment
    on Foster’s hostile work environment claim.                         “In order to make
    out a hostile work environment claim based on sex, ‘a plaintiff
    must show that the offending conduct (1) was unwelcome, (2) was
    because of her sex, (3) was sufficiently severe or pervasive to
    alter the conditions of her employment and create an abusive
    working environment, and (4) was imputable to her employer.’”
    Hoyle v. Freightliner, LLC, 
    650 F.3d 321
    , 331 (4th Cir. 2011)
    (citation       omitted).         The     district      court      found    that     Foster
    established a genuine dispute of material fact on the first,
    second, and third elements, but granted summary judgment to the
    University because no reasonable jury could find that Jones’s
    alleged harassment was imputable to his employer.
    Sexual    harassment        is    imputable      to    an    employer      when    the
    employer “knew or should have known about the harassment and
    failed to take effective action to stop it.”                         Howard v. Winter,
    
    446 F.3d 559
    ,    565      (4th    Cir.      2006)   (citation       and    internal
    quotation marks omitted).               It is undisputed that the University
    promptly investigated Foster’s complaint and, within 30 days,
    transferred       Jones     to    a     position      where    he    would     no    longer
    interact with Foster and required him to attend counseling and
    sign   a   “Last       Chance     Agreement.”          J.A.     1059.        It     is    also
    undisputed       that     Foster        was     not    sexually         harassed         after
    25
    complaining to the University about Jones’s harassment.                                     From
    these     undisputed          facts,        we    affirm        the    district          court’s
    conclusion that the University took effective action to stop
    Jones’s harassment of Foster, and that Jones’s actions are not
    imputable to the University under this theory.                                 See EEOC v.
    Xerxes Corp., 
    639 F.3d 658
    , 670 (4th Cir. 2011) (“A remedial
    action    that      effectively        stops      the       harassment     will     be    deemed
    adequate as a matter of law.” (quoting Knabe v. Boury Corp., 
    114 F.3d 407
    , 411–12 n.8 (3d Cir. 1997))).
    Foster      argues    that     she       can    still       prevail    because       the
    University       “should      have     known”         about    Jones’s      harassment       and
    should have stopped it preemptively because a previous employee—
    described in the record as Employee C—also complained that Jones
    had   sexually        harassed     her.          As    we    have   previously       held,   an
    “employer’s knowledge that a male worker has previously harassed
    female    employees        other     than        the    plaintiff      will    often      prove
    highly relevant in deciding whether the employer should have
    anticipated that the plaintiff too would become a victim of the
    male employee’s harassing conduct.”                          Paroline v. Unisys Corp.,
    
    879 F.2d 100
    ,    107   (4th     Cir.      1989),       rev’d   in     part    on    other
    grounds, 
    900 F.2d 27
    , 28 (4th Cir. 1990) (per curiam) (en banc).
    Here,    as    evidence      that     the      University     was     on    notice   of
    Jones’s      past      harassment      of    Employee         C,    Foster    has    produced
    Employee C’s deposition, Employee C’s complaint filed with the
    26
    Maryland        Commission           on     Human        Relations           (MCHR),       Billie’s
    testimony that there had been other sexual harassment claims
    against Jones (including Employee C’s), and Holden’s testimony
    that     Employee       C     had        filed     an    MCHR        complaint      against       the
    University       arising          from     alleged        harassment          by    Jones.        In
    response,       the    University           argues       that       this     Circuit      does    not
    recognize such a theory of liability and that even if it did,
    the    University       was        not    on     notice       of    Jones’s       propensity      for
    engaging        in     sexual       harassment           because           both    its     internal
    investigation and the MCHR investigation concluded that Employee
    C’s complaint was without merit.
    Contrary        to     the        University’s              argument,       the    rule     we
    articulated in Paroline remains good law in this Circuit.                                          We
    take this opportunity to reaffirm its holding: employers have an
    affirmative          duty    to     prevent       sexual       harassment,          and    will    be
    liable     if        they     “anticipated               or     reasonably          should       have
    anticipated” that a particular employee would sexually harass a
    particular coworker and yet “failed to take action reasonably
    calculated to prevent such harassment.”                               Paroline, 
    879 F.2d at 107
     (emphasis added); see also Mikels v. City of Durham, 
    183 F.3d 323
    ,    331        (4th     Cir.        1999)    (noting          that    in     Paroline,
    liability       arose       because       “the     employer          was    already      on   notice
    . . . of the harasser’s propensities”).                              The question, then, is
    whether the University reasonably should have anticipated that
    27
    Jones     would   harass   Foster    in     light   of    Employee    C’s      prior
    complaints of harassment.
    In      Paroline,   the   plaintiff      produced     evidence     that    her
    employer had failed to investigate prior complaints that the man
    who harassed her had engaged in unwanted touching of other women
    in the office.      
    879 F.2d at 103
    .         Here, however, Foster concedes
    that the University investigated Employee C’s allegations and
    found them to lack credibility.             Moreover, according to Holden’s
    uncontradicted     testimony,    the   MHCR    also      investigated    Employee
    C’s allegations and similarly returned a finding of “no probable
    cause.” 19    J.A. 563–64.     We conclude as a matter of law that, for
    purposes of the Paroline failure-to-warn theory, an employer may
    reasonably rely upon the findings of a state civil rights agency
    in determining whether an employee poses a risk of creating a
    hostile work environment.           To hold otherwise would effectively
    19
    The MCHR decision was not included in the record below,
    and we therefore cannot rule out the possibility that Holden’s
    testimony mischaracterizes its contents.    But because Foster
    failed to present any evidence that would controvert Holden’s
    testimony, we are compelled by Rule 56 to accept the
    University’s evidence as true.   See 10A Charles Alan Wright &
    Arthur R. Miller, et al., Federal Practice & Procedure § 2727
    (3d ed. 1998) (“If the movant presents credible evidence that,
    if not controverted at trial, would entitle him to a Rule 50
    judgment as a matter of law that evidence must be accepted as
    true on a summary-judgment motion when the party opposing the
    motion does not offer counter-affidavits or other evidentiary
    material supporting the opposing contention that an issue of
    fact remains . . . .”).
    28
    require   employers     to    discipline    or   terminate    all    employees
    accused   of   harassment,     regardless   of   whether     the    accusations
    against them are supported by evidence.          This we decline to do.
    Viewing the evidence in the light most favorable to Foster,
    she has failed to create a jury question regarding whether the
    University reasonably should have anticipated that she would be
    the   victim   of   Jones’s   sexual   harassment.     The     harassment   is
    therefore not imputable to the University, and so we affirm the
    district court’s grant of summary judgment on Foster’s hostile
    work environment claim.
    V.
    For the foregoing reasons, we reverse in part the district
    court’s order granting summary judgment to the University and
    remand to the district court for further proceedings consistent
    with this opinion.
    AFFIRMED IN PART,
    REVERSED IN PART,
    AND REMANDED
    29
    

Document Info

Docket Number: 14-1073

Judges: Keenan, Wynn, Floyd

Filed Date: 5/21/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

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