Millicent Carvalho-Grevious v. Delaware State University , 851 F.3d 249 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 15-3521
______
MILLICENT CARVALHO-GREVIOUS,
Appellant
v.
DELAWARE STATE UNIVERSITY;
JOHN AUSTIN; ALTON THOMPSON
______
On Appeal from the United States District Court
for the District of Delaware
(D. Del. No. 1-13-cv-01386)
District Judge: Honorable Gregory M. Sleet
______
Argued September 27, 2016
Before: AMBRO, SMITH* and FISHER, Circuit Judges.
*
Honorable D. Brooks Smith, United States Circuit
Judge for the Third Circuit, assumed Chief Judge status on
October 1, 2016.

Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on
February 1, 2017.
(Filed: March 21, 2017)
Christine E. Burke [ARGUED]
Ari R. Karpf
Karpf Karpf & Cerutti
3331 Street Road
Suite 128, Two Greenwood Square
Bensalem, PA 19020
Counsel for Appellant
Gerard M. Clodomir
James D. Taylor, Jr. [ARGUED]
Saul Ewing
222 Delaware Avenue, Suite 1200
Wilmington, DE 19899
Counsel for Appellees
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
In this Title VII retaliation action, Dr. Millicent
Carvalho-Grevious appeals from an order of summary
judgment granted in favor of her former employer, Delaware
State University, and two of its employees, John Austin, then-
interim Dean of the College of Education, Health and Public
Policy, and Alton Thompson, Provost and Vice President for
Academic Affairs. Dr. Grevious alleges that by retaliating
against her for complaining about discriminatory employment
2
practices based on race and gender, the University violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
3, and that by retaliating against her for complaining about
discriminatory employment practices based on race, Dean
Austin and Provost Thompson violated 42 U.S.C. § 1981. In
this appeal, we consider whether a plaintiff asserting a Title
VII retaliation claim must establish but-for causation as part
of her prima facie case pursuant to University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
(2013). We hold that, at the prima facie stage, a plaintiff need
only proffer evidence sufficient to raise the inference that her
engagement in a protected activity was the likely reason for
the adverse employment action, not the but-for reason.
With respect to Dr. Grevious’s contract revision claim
against the University and Provost Thompson, we will reverse
the District Court’s order and remand for further proceedings.
We will affirm in all other respects.
I
The University hired Dr. Grevious as an associate
professor and as chairperson of the Department of Social
Work (the “Department”) in August 2010.1 Both terms of
employment were contracted to end on June 30, 2011, but
were subject to reappointment. As chairperson, Dr. Grevious
supervised nine employees and managed the Department.
But her main focus was to facilitate the Department’s
reaccreditation efforts, which included submitting a
comprehensive self-study and other supporting
documentation to the Office of Social Work Accreditation
1
As a University employee, the general terms and
conditions of Dr. Grevious’s employment were governed by a
collective bargaining agreement (“CBA”). J.A. 327-455.
3
(“OSWA”) by August 1, 2011. Dr. Grevious reported to
Dean Austin, who in turn reported to Provost Thompson.
Provost Thompson was primarily responsible for the
Department’s reaccreditation.
From the beginning of Dr. Grevious’s employment,
she struggled with the reaccreditation process, in part due to
the Department being in “complete disarray,” and in part due
to the faculty and staff’s lack of structure. Grevious Br. 5.
Dr. Grevious also experienced personal difficulties with the
Department faculty and staff. Within her first three months as
chairperson, Dr. Grevious recommended the nonrenewal of
two professors, the replacement of two of her administrative
staff, and the termination of a Department consultant. Three
of those individuals submitted written complaints to Dean
Austin describing Dr. Grevious’s actions as “unprofessional
and unwarranted,” claiming to have been “degraded, belittled,
and harassed,” J.A. 188-95, and subjected to “retribution”
related to Dr. Grevious’s personal grudges, J.A. 204-05.
Although her relationships with junior faculty and staff were
strained, two senior faculty members and some of her
students submitted positive evaluations of her performance as
part of the University’s formal evaluation process.
The Department scheduled an election in February
2011 to determine whether Dr. Grevious would be
reappointed as chairperson for an additional term. As the
election approached, Dr. Grevious’s relationship with Dean
Austin soured. On January 20, 2011, Dr. Grevious requested
a meeting with Provost Thompson to discuss, among other
things, her frustrations with Dean Austin’s governance. Dr.
Grevious claimed that Dean Austin was hindering the
reaccreditation process and campaigning against her
reappointment as chairperson by soliciting junior faculty
4
members to vote against her. She asked Provost Thompson to
intervene. J.A. 212-13.
Dr. Grevious’s first complaint of discrimination and
retaliation
On January 27, having failed to resolve her issues with
Dean Austin, Dr. Grevious emailed Provost Thompson
regarding what she described as Dean Austin’s “unilateral
and arbitrary management style” and, for the first time, to
report that he allegedly made discriminatory comments. J.A.
231-33. Dr. Grevious alleged that, when she confronted Dean
Austin, he told her that his “management style was meant to
stop ‘back biting among women, especially Black women,’
that is keep [sic] women from fighting amongst themselves to
their own detriment.” J.A. 232. Dr. Grevious complained
that she found Dean Austin “overtly sexist” and claimed that
he reduced “interpersonal interaction between a department
chair and her faculty and staff to race and gender issues, as a
cover for making unilateral decisions.” J.A. 232-33.
On February 14, Provost Thompson spoke to Dean
Austin, who denied making the alleged discriminatory
comments. The following day, Dean Austin formally
evaluated Dr. Grevious as chairperson. In the category
addressing academic leadership and Department activities,
Dean Austin rated Dr. Grevious a one out of five and
commented that her “[l]eadership appears to be a major
problem.” J.A. 238. Dr. Grevious contested the evaluation,
and the next day Dean Austin submitted a revised, more-
favorable evaluation. In the aforementioned category, Dean
Austin upgraded Dr. Grevious’s rating from a one to a two
out of five and commented that “[w]hile Chair indicates the
activities she has accomplished in her academic development,
5
there is no clear indication where she is demonstrating
leadership and development of faculty and staff.” J.A. 241.
In an email to Provost Thompson and the University’s
general counsel, sent early on the morning of the Department
election (February 16, 2011), Dr. Grevious argued that Dean
Austin’s negative evaluation evidenced his retaliatory animus
toward her for reporting his misconduct. Dr. Grevious
referenced the allegations raised in the January 27 email and
requested that Provost Thompson insulate the election from
Dean Austin’s interference. Because Dr. Grevious was
unable to produce evidence of Dean Austin’s interference, the
election went forward as scheduled. Including Dr. Grevious,
the faculty voted five to four to appoint Dr. Marlene Saunders
as the new Department Chair, effective June 30, 2011. 2
On March 1, 2011, in accordance with the CBA, Dr.
Grevious filed a grievance with the Office of the Provost
alleging that Dean Austin sexually harassed her and that,
when she reported Dean Austin’s harassment to the Provost,
Dean Austin retaliated by submitting a negative performance
evaluation. J.A. 249-62. Responding to the grievance on
behalf of the University, Provost Thompson stated that further
action was unnecessary because investigations into Dr.
Grevious’s claims did not yield evidence of CBA violations.
J.A. 266.
The University issues Dr. Grevious a renewable contract
On April 1, 2011, based on Provost Thompson’s
recommendation, the University tendered to Dr. Grevious a
renewable contract as an associate professor for the 2011-
2012 academic year. J.A. 269. Around the same time,
2
Dean Austin oversaw the election but, pursuant to the
CBA’s procedures, did not vote. See J.A. 441.
6
Provost Thompson learned that, under Dr. Grevious, the
Department’s progress toward reaccreditation was
significantly behind schedule. Provost Thompson requested a
one-year postponement of the reaccreditation deadline, citing
the transition to a new chairperson as his justification. J.A.
279. On April 14, OSWA denied the request. That same day,
Dr. Grevious filed a formal complaint of sexual harassment,
racial discrimination, and related retaliation against Dean
Austin with the University’s human resources department
(“HR”). J.A. 271-78.
The University prematurely terminates Dr. Grevious’s term
as chairperson
On May 3, 2011, Dr. Grevious met with the vice
president of HR to discuss her complaint. 3 Later that day, the
University informed Dr. Grevious that she would be
dismissed as chairperson on May 6, but that she would
continue to receive the chairperson salary through the natural
expiration of her contract term. J.A. 280. In response, on
May 20, Dr. Grevious filed an Equal Employment
Opportunity Commission (“EEOC”) charge of discrimination
claiming that the premature termination of her term as
chairperson was unlawful retaliation for her complaints about
Dean Austin’s sexual harassment, racial discrimination, and
related retaliation. J.A. 282-83. Dean Austin, Provost
Thompson, and the University became aware of the EEOC
charge sometime in early June. J.A. 177.
The University issues Dr. Grevious a revised terminal
contract
3
Ultimately, the investigation was closed due to a lack
of corroborating evidence.
7
On June 21, 2011, based again on Provost Thompson’s
recommendation, the University revoked Dr. Grevious’s
April 1 renewable contract and issued her a terminal contract
ending her employment effective May 25, 2012. J.A. 284.
Dr. Grevious claims that on August 2, at a meeting to discuss
the issuance of the terminal contract, Provost Thompson
admitted that his recommendation was based on Dr.
Grevious’s filing of the May 20 EEOC charge and that the
ultimate decision was unrelated to her teaching or
professional performance. J.A. 290, 307. Dr. Grevious
thereafter filed a second EEOC charge alleging that she was
issued a terminal contract in retaliation for having filed the
initial EEOC charge. J.A. 295. Provost Thompson denies
making such admissions at the August meeting and claims
that the decision was based on Dr. Grevious’s documented
interpersonal conflict at the University.
The following year, on June 22, 2012, when the
terminal contract expired, Provost Thompson recommended
that the University not reappoint Dr. Grevious for the 2012-
2013 academic year because of her consistent “inability to
work collegially” with her colleagues. J.A. 297. Dr.
Grevious subsequently filed a final EEOC charge alleging
that her ultimate termination was retaliation for filing the
earlier EEOC charges. J.A. 317.
After exhausting her administrative remedies, Dr.
Grevious filed this suit in the District Court for the District of
Delaware alleging retaliation in violation of Title VII, 42
U.S.C. § 2000e-3, against the University, and retaliation in
violation of 42 U.S.C. § 1981 against Dean Austin and
Provost Thompson (collectively “the Defendants”). The
Defendants moved for summary judgment on the basis that
Dr. Grevious failed to raise a triable issue of fact with respect
8
to the third element of her prima facie case—causation. In
granting the Defendants’ motion for summary judgment, the
District Court relied primarily on University of Texas
Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
(2013), which held that a plaintiff asserting a Title VII
retaliation claim must prove that the employer’s unlawful
retaliation was the but-for cause of the adverse employment
action, see Carvalho-Grevious v. Delaware State Univ., No.
13-1386, 2015 WL 5768940, at *4 (D. Del. Sept. 30, 2015).
The District Court concluded that no reasonable jury could
find that, but for Dr. Grevious’s complaints about harassment
and discrimination, she would have been retained as
chairperson or kept her renewable contract. Therefore, it held
that Dr. Grevious did not establish the causation element of
her prima facie case. See id. at *5. The District Court also
concluded that Dr. Grevious failed to establish that Provost
Thompson’s non-retaliatory explanation for the issuance of a
terminal contract was a pretext for discrimination. Id. Dr.
Grevious filed this timely appeal.
II
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over a district court’s order granting
summary judgment and apply the same standard the district
court applied. Daniels v. Sch. Dist. of Phila., 776 F.3d 181,
192 (3d Cir. 2015). We will affirm if, viewing the evidence
in the light most favorable to the nonmoving party, “there is
no genuine issue 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)).
III
9
Title VII prohibits an employer from discriminating
based on an employee’s race, color, religion, sex, or national
origin, 42 U.S.C. § 2000e-2(a), and from retaliating against
an employee for complaining about, or reporting,
discrimination or retaliation, id. § 2000e-3(a). “The
substantive elements of a [racial discrimination] claim under
§ 1981 are generally identical to the elements of an
employment discrimination claim under Title VII.” Brown v.
J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009). We will
therefore address these claims together. See, e.g., Schurr v.
Roserts Int’l Hotel Inc., 196 F.3d 486, 498-99 (3d Cir. 1999).
Title VII and § 1981, however, are not coextensive, and to the
extent that any of Dr. Grevious’s retaliation claims against
either Provost Thompson or Dean Austin are based on Dr.
Grevious’s complaints of gender discrimination, those claims
are not cognizable. See Anjelino v. New York Times Co., 200
F.3d 73, 98 (3d Cir. 1999) (affirming dismissal of § 1981
gender discrimination claim on the basis that § 1981, “on its
face, is limited to issues of racial discrimination”).
To state a prima facie case of retaliation, a plaintiff
must show that (1) she engaged in a protected activity, (2) she
suffered an adverse employment action, and (3) there was a
causal connection between the participation in the protected
activity and the adverse action. Moore v. City of
Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). A
plaintiff seeking to prove her case through indirect evidence,
as Dr. Grevious seeks to here, may do so by applying the
familiar McDonnell Douglas burden-shifting framework.
Daniels, 776 F.3d at 198-99. After establishing a prima facie
case of retaliation, the burden shifts to the employer to
provide a legitimate non-retaliatory reason for its conduct.
Moore, 461 F.3d at 342. If it does so, the burden shifts back
to the plaintiff “to convince the factfinder both that the
10
employer’s proffered explanation was false [that is, a pretext],
and that retaliation was the real reason for the adverse
employment action.” Id. The onus is on the plaintiff to
establish causation at two stages of the case: initially, to
demonstrate a causal connection as part of the prima facie
case, and at the final stage of the McDonnell Douglas
framework to satisfy her ultimate burden of persuasion by
proving pretext.
The question before us is what a plaintiff must bring as
part of her prima facie case of retaliation to survive a motion
for summary judgment in the wake of the Supreme Court’s
decision in Nassar, which held that “Title VII retaliation
claims must be proven according to traditional principles of
but-for causation.” 133 S. Ct. at 2533. Our sister circuits are
split on this question. See Foster v. Univ. of Md.-E. Shore,
787 F.3d 243, 251 n.10 (4th Cir. 2015) (collecting cases). We
conclude that Nassar does not alter the plaintiff’s burden at
the prima facie stage; proving but-for causation as part of her
ultimate burden of persuasion comes later, and not at the
motion-to-dismiss stage.
Importantly, the “but-for” causation standard required
by Nassar “does not conflict with our continued application
of the McDonnell Douglas paradigm” in Title VII retaliation
cases. Smith v. Allentown, 589 F.3d 684, 691 (3d Cir. 2009)
(analyzing Gross v. FBL Financial Services, 557 U.S. 167
(2009), and the “but-for” causation requirement in proving
claims under the Age Discrimination in Employment Act).
Applying McDonnell Douglas to Title VII retaliation claims,
we have made clear that “[a]lthough the burden of production
of evidence shifts back and forth, the plaintiff has the ultimate
burden of persuasion at all times.” Daniels, 776 F.3d at 193.
Because the McDonnell Douglas framework affects the
11
burden of production but not the standard of causation that
the plaintiff must prove as part of her ultimate burden of
persuasion, Nassar “does not forbid our adherence to
precedent applying McDonnell Douglas.” Smith, 589 F.3d at
691.
A
A plaintiff asserting a claim of retaliation has a higher
causal burden than a plaintiff asserting a claim of direct
status-based discrimination under Title VII. See 42 U.S.C. §
2000e–2(m) (“[A]n unlawful employment practice is
established when the complaining party demonstrates that
race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors
also motivated the practice.”) (emphasis added); Woodson v.
Scott Paper Co., 109 F.3d 913, 932-35 (3d Cir. 1997)
(holding that the Civil Rights Act of 1991’s addition of §
2000e–2(m)’s “motivating-factor” standard of causation does
not apply to Title VII retaliation claims). In Woodson, we
held that a plaintiff must prove that retaliatory animus had a
“determinative effect” on the employer’s decision to subject
the employee to the adverse employment action. 109 F.3d at
932. And in Moore, we stated the plaintiff’s causal burden
slightly differently, holding that a plaintiff proceeding under a
pretext theory, as Dr. Grevious seeks to here, must convince
the factfinder that the employer’s proffered non-retaliatory
explanation was false, and that retaliatory animus was the
“real reason for the adverse employment action.” 461 F.3d at
342 (emphasis added).
More recently, the Supreme Court concluded that a
retaliation plaintiff’s ultimate burden is to prove that
retaliatory animus was the “but-for” cause of the adverse
employment action. Nassar, 133 S. Ct. at 2521. As we did in
12
Woodson, the Nassar Court limited § 2000e–2(m)’s
“motivating-factor” standard to status-based discrimination
claims. The Supreme Court reasoned that the plain text of §
2000e–2(m)—which is notably silent as to retaliation
claims—and the detailed statutory structure of Title VII,
indicate that Congress did not intend to extend the
“motivating-factor” standard to retaliation claims, which
come under § 2000e–3(a). Id. at 2528-30; see also Woodson,
109 F.3d at 933-36.
Although this Court’s “determinative effect” or “real
reason” causation standard and the Supreme Court’s “but-for”
causation standard differ in terminology, they are functionally
the same. To prove a “determinative effect,” the plaintiff
must show “by a preponderance of the evidence that there is a
‘but-for’ causal connection” between the adverse employment
action and retaliatory animus. Miller v. CIGNA Corp., 47
F.3d 586 586, 595-96 (3d Cir. 1995) (quoting Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993)). 4 Similarly, a
plaintiff who proves that retaliatory animus was the “real
reason” for the adverse employment action 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 omitted).
Regardless of any articulable differences, the Supreme Court
has made clear that “Title VII retaliation claims must be
4
The Nassar Court even cited Hazen Paper’s
“determinative influence” standard as an example of the
requirement of “[c]ausation in fact—i.e., proof that the
defendant’s conduct did in fact cause the plaintiff’s injury.”
Nassar, 133 S. Ct. at 2524-26 (citing Hazen Paper, 507 U.S.
at 610).
13
proved according to traditional principles of but-for
causation.” Id. at 2533.
Understanding the retaliation plaintiff’s ultimate
burden, we turn to the question of whether that burden differs
at the prima facie stage of the case. We hold that it does. See
Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.
2007) (“In assessing causation, we are mindful of the
procedural posture of the case.”); see also Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000) (“[T]he
relative evidentiary impact of [causal evidence] may vary
depending upon the stage of the McDonnell Douglas proof
analysis and the procedural circumstance,” i.e., if proffered to
satisfy a plaintiff’s prima facie case for the purpose of
summary judgment or if proffered to reverse a verdict).
Consistent with our precedent, a plaintiff alleging retaliation
has a lesser causal burden at the prima facie stage. See e.g.,
Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir.
2008) (“[T]he prima facie requirement for making a Title VII
claim ‘is not onerous’ and poses ‘a burden easily met.’”
(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981))).
Some circuits have found, albeit without much in the
way of explanation, that a plaintiff must prove but-for
causation as part of the prima facie case of retaliation. See
EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015)
(en banc); Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir.
2014). We decline now to heighten the plaintiff’s prima facie
burden to meet her ultimate burden of persuasion. That is
because we agree with the Fourth Circuit that to do so
would be tantamount to eliminating the
McDonnell Douglas framework in
retaliation cases . . . . If plaintiffs can
14
prove but-for causation at the prima facie
stage, they will necessarily be able to
satisfy their ultimate burden of
persuasion without proceeding through
the pretext analysis. 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.
Foster, 787 F.3d at 251. We conclude that at the prima facie
stage the plaintiff must produce evidence “sufficient to raise
the inference that her protected activity was the likely reason
for the adverse [employment] action.” Kachmar v. SunGard
Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997)
(emphasis added) (internal quotation marks omitted).
And finally, although the Nassar Court did express
concern that a lesser causation standard could contribute to
the filing of frivolous claims, see Nassar, 133 S. Ct. at 2531-
32, we do not believe that our holding today will lead to that
result. We are confident that Federal Rule of Civil Procedure
11’s certification requirements will deter an attorney from
filing a frivolous claim of retaliation when his client is
patently unable to meet her ultimate causal burden. See
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)
(holding that the purpose of Rule 11 “is to deter baseless
filings in district court”).
B
We now turn to Dr. Grevious’s claims of unlawful
retaliation. In dispute is whether Dr. Grevious produced
evidence from which a reasonable factfinder could conclude
that her engagement in a protected activity was the likely
reason for the adverse employment action at the prima facie
15
first stage and that the Defendants’ explanation (at stage two)
was pretext (at stage three).5
“[A] plaintiff may rely on ‘a broad array of evidence’
to demonstrate the causal link between [the] protected activity
and the adverse [employment] action taken.” Marra, 497
F.3d at 302 (quoting Farrell, 206 F.3d at 284). She can meet
this burden by proffering evidence of an employer’s
inconsistent explanation for taking an adverse employment
action, Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73
(3d Cir. 1986), a pattern of antagonism, Woodson, 109 F.3d at
921, or temporal proximity “unusually suggestive of
retaliatory motive,” Shaner v. Synthes, 204 F.3d 494, 505 (3d
Cir. 2000) (internal quotation marks omitted). “These are not
the exclusive ways to show causation, as the proffered
evidence, looked at as a whole, may suffice to raise the
inference.” Kachmar, 109 F.3d at 177.
Dr. Grevious’s chairperson claim
The District Court erred in applying Nassar and
concluding that Dr. Grevious needed to establish but-for
causation as part of her prima facie case. Still, because we
conclude that no reasonable juror could find that Dr. Grevious
raised sufficiently the inference of retaliatory animus needed
at the prima facie stage, we will affirm the District Court’s
5
The parties do not dispute that Dr. Grevious engaged
in protected activities when she complained, both formally
and informally, about sexual harassment, gender and racial
discrimination, and related retaliation, to the Provost’s Office,
HR, and the EEOC. The parties similarly do not dispute that
the University’s premature termination of Dr. Grevious’s
term as chairperson, or its unilateral issuance of a revised
terminal contract, constitute adverse employment actions.
16
summary judgment of her chairperson claim. 6 See Bernitsky
v United States, 620 F.2d 948, 950 (3d Cir. 1980) (“[I]t is
well established that we are free to affirm the judgment of the
district court on any basis which finds support in the record”).
As chairperson, Dr. Grevious served at the pleasure of
the Dean. On April 14, 2011, Dr. Grevious submitted a
formal HR complaint against Dean Austin. On May 3, the
same day that she met with HR to discuss the complaint, Dr.
Grevious received notice that her term as chairperson would
end prematurely on May 6. Dr. Grevious argues that the
temporal proximity between the HR meeting and the
termination notice is unusually suggestive of retaliatory
motive. We disagree.
First, Dr. Grevious’s April 14 HR complaint was
exhaustive as to her claims against Dean Austin. Dr.
Grevious does not allege that during the May 3 meeting she
brought additional claims of discrimination or retaliation, or
that she introduced new evidence in support of her pre-
existing claims. Nothing changed between April 14 and May
3. We are not persuaded that her same-day notification about
the termination of her chairperson term is “unusually
suggestive” of retaliatory motive.
Second, we have emphasized that “temporal proximity
merely provides an evidentiary basis from which an inference
[of causation] can be drawn. The element of causation, which
6
Chief Judge Smith would also affirm the District
Court’s grant of summary judgment on Dr. Grevious’s
chairperson claim. In his view, however, Dr. Grevious
established a prima facie case of retaliation, but failed to
demonstrate that the University’s action was a pretext for
retaliation.
17
necessarily involves an inquiry into the motives of an
employer, is highly context-specific.” Kachmar, 109 F.3d at
178. It is undisputed that under Dr. Grevious’s leadership the
Department was not making sufficient progress toward
achieving reaccreditation. Provost Thompson twice lobbied
OSWA for a one-year postponement of the August 1
deadline. On April 14, 2011, OSWA denied Provost
Thompson’s second request. J.A. 279. Given Dr. Grevious’s
difficulties and the impending reaccreditation deadline, the
University instituted the early transition to Dr. Saunders’
term. Despite the early transition, Dr. Grevious continued to
receive the chairperson salary through the end of her contract
term. Consistent with the District Court’s assessment, we
conclude that Dr. Grevious has failed to produce evidence
from which a reasonable factfinder could determine that her
engagement in a protected activity was the likely reason for
the University’s premature termination of her chairperson
term. Even if Dr. Grevious could establish the element of
causation, her claim would necessarily fail because she has
not cast any doubt on the University’s decision to refocus the
reaccreditation efforts in the limited amount of time that
remained. We will therefore affirm the District Court’s
summary judgment of Dr. Grevious’s chairperson claim.
Dr. Grevious’s contract revision claim
Dr. Grevious’s contract revision claim presents a
closer question. Her appointment as assistant professor was
probationary and contracted on a year-to-year basis. J.A. 353.
On April 1, 2011, despite her record of interpersonal conflict
in the Department, Dr. Grevious received and accepted a
18
renewable contract. 7 On May 20, Dr. Grevious filed an
EEOC charge alleging that the premature termination of her
term as chairperson was unlawful retaliation for her
engagement in a protected activity. Although the exact date
is unclear, the parties agree that the Defendants learned about
Dr. Grevious’s May 20 EEOC charge in early June. On June
21 the University issued Dr. Grevious a revised terminal
contract. The parties dispute whether, on its own, the
temporal proximity between Dr. Grevious’s protected activity
and the issuance of the revised terminal contract suffices to
raise the inference of causation. 8 We need not answer this
question, because we find on the record before us that Dr.
Grevious has produced sufficient evidence from which a
reasonable factfinder could find the requisite inference of
causation.
7
The CBA mandates that the University “shall
normally notify” employees of the terms and conditions of
their employment for the following year on or by April 1.
J.A. 345.
8
The Defendants argue that to determine temporal
proximity we should look to the date of Dr. Grevious’s first
complaint, January 27, 2011, and not to the Defendants’
receipt of notice of the EEOC charge. Defendants’ Br. 25. If
we look to the date of the first complaint, the intervening
period would be five months. If we look to the date of notice,
the intervening period would be three weeks at most. We
have held that, on its own, an intervening temporal period of
two days may raise the inference of causation but that a
period of two months cannot. See Jalil v. Avdel Corp., 873
F.2d 701, 708 (3d Cir. 1989); William v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 759-60 (3d Cir. 2004).
19
It is undisputed that there “was a continuous flow of
complaints from department faculty and staff . . . . They
began immediately upon [Dr. Grevious’s] hire and remained
consistent in the months that followed.” Defendants’ Br. 28.
Still, after reviewing the faculty, Dean, and students’
evaluations, Provost Thompson recommended issuance of a
renewable contract. J.A. 174. Nothing in the record indicates
that, between April 1 and June 21, anything changed with
respect to Dr. Grevious’s professional performance other than
her escalation from filing intra-University complaints to filing
an EEOC charge.
Additionally, in her amended complaint Dr. Grevious
alleged that, at their August 2, 2011 meeting, Provost
Thompson told her he recommended issuance of a terminal
contract because Dr. Grevious “was the cause of trouble in
the department (which was only in reference to [Dr.
Grevious’s] complaints and protected activity)” and that the
decision had nothing to do with her performance. Am.
Compl. ¶ 28, J.A. 307. As part of her unsworn second EEOC
charge, Dr. Grevious claimed that at the August meeting,
Provost Thompson admitted that the decision was made in
“retaliation for filing the EEOC complaint.” J.A. 290. The
District Court discounted Dr. Grevious’s claim as an
“uncorroborated statement.” 2015 WL 5768940, at *5. This
was error. Credibility determinations are for the factfinder
and are inappropriate at the summary judgment stage. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
What makes the District Court’s reasoning more problematic
is that it also relied on a “contemporaneous” memo offered by
Defendants to show a non-retaliatory explanation for their
decision. 2015 WL 5768940, at *5. The “contemporaneous”
memo, however, is dated June 22, 2012, one year after the
issuance of the revised terminal contract. J.A. 145. We
20
conclude that, given the absence of a meaningful change in
Dr. Grevious’s professional performance in the Spring of
2011 and Provost Thompsons’s alleged admission, a
reasonable factfinder could infer that Dr. Grevious’s
engagement in a protected activity was the likely reason for
the issuance of the revised terminal contract.
The pretext stage of Dr. Grevious’s contract revision claim
We now turn to the pretext stage of the analysis. We
rely largely on the evidence produced in support of Dr.
Grevious’s prima facie case, recognizing that “nothing about
the McDonnell Douglas formula requires us to ration the
evidence between one stage or the other.” Farrell, 206 F.3d
at 286. At this point, the burden is on the Defendants to
articulate a legitimate reason for issuing the revised terminal
contract. Importantly, the Defendants’ burden is one of
production, not of persuasion. See Daniels, 776 F.3d at 193
(“the plaintiff has the ultimate burden of persuasion at all
times”). The Defendants met this burden by producing
evidence that the April 1 contract was not final and that
issuance of the terminal contract was based on Dr. Grevious’s
inability to work collegially in the Department. See
Defendants’ Br. 27.
The burden therefore shifts back to Dr. Grevious to
demonstrate “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” from which a reasonable
juror could conclude that the Defendants’ explanation is
“unworthy of credence, and hence infer that the employer did
not act for the asserted [non-retaliatory] reasons.” Daniels,
776 F.3d at 199 (brackets omitted) (quoting Ross v. Gilhuly,
755 F.3d 185, 194 n.13 (3d Cir. 2014)). Ultimately, the
remaining issue is unlawful retaliation vel non. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
21
To prevail at trial, Dr. Grevious need not prove that,
had she not filed the May 20 EEOC charge, the University
never would have issued her a terminal contract. She only
needs to convince the factfinder that, had she not filed that
charge, the University would not have issued the terminal
contract on June 21, 2011. Her inability to work collegially
in the Department existed long before, including when both
the renewable and the revised terminal contracts were issued.
Typically, before issuing a terminal contract, the University
put the at-risk faculty member on a professional improvement
plan designed to meet the discrepancies and deficiencies
identified in the faculty member’s evaluations. J.A. 114.
Even in the absence of a plan, the faculty member generally
had the right to meet with the appropriate vice president
before the ultimate recommendation to issue a terminal
contract was submitted to the president of the University.
J.A. 386. A reasonable factfinder could determine that the
University’s failure to extend to Dr. Grevious either of these
opportunities and her long-existing difficulty in the
Department indicate weaknesses in the Defendants’
explanation and suggest pretext. If found to be credible,
Provost Thompson’s admission of retaliatory animus only
strengthens Dr. Grevious’s case. Thus we conclude that Dr.
Grevious has raised “a factual issue regarding the employer’s
true motivation” for the revision of her contract, and as such,
her claims against the University and Provost Thompson
withstand summary judgment. Jalil, 873 F.2d at 707.
Dr. Grevious’s remaining claims against Dean Austin
We will, however, affirm the District Court’s summary
judgment of all of Dr. Grevious’s claims against Dean Austin.
The parties do not dispute that Provost Thompson, not Dean
Austin, was responsible for recommending issuance of the
22
terminal contract. Dr. Grevious alleges that Dean Austin’s
retaliatory adverse employment action was the filing of a
negative evaluation. But Dr. Grevious has not introduced
evidence from which a reasonable factfinder could infer that
Dean Austin’s negative evaluation was likely retaliation
against Dr. Grevious for engaging in a protected activity. Dr.
Grevious complained about Dean Austin’s efforts to
undermine her effectiveness as chairperson as early as
January 20, 2011, before she first alleged harassment or
discrimination. Even if Dean Austin’s conduct was motivated
by animus, it predated her engagement in protected activities.
Moreover, although Provost Thompson may have considered
Dean Austin’s evaluation of Dr. Grevious, it is not clear that
Dean Austin had any meaningful bearing on the ultimate
decision to issue the terminal contract. As such, Dr. Grevious
has failed to produce evidence from which a reasonable jury
could find the requisite causal connection between her
protected activity and Dean Austin’s alleged retaliatory
adverse employment action.
* * *
Accordingly, we will affirm on Dr. Grevious’s contract
revision claim against Dean Austin, reverse on Dr. Grevious’s
contract revision claim against the University and against
Provost Thompson, and remand for further proceedings
consistent with this opinion.
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