In May 2015, the Fourth Circuit Court of Appeals (which has jurisdiction over federal courts in Maryland, West Virginia, Virginia, North Carolina, and South Carolina) issued an opinion with negative consequences for employers facing claims of retaliation. In Foster v. University of Maryland-Eastern Shore, No. 14-1073 (May 21, 2015), retaliation plaintiffs achieved a victory when the Fourth Circuit rejected the notion that the decision of the Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar was intended to create a “heightened causation standard” for retaliation claims brought under the burden-shifting McDonnell Douglas framework. The decision underscores the scrutiny that employers face in the Fourth Circuit, where the rise of employee-friendly standards continues to present a stark departure from conservative precedent.
Shortly after Iris Foster was hired by the defendant as a campus police officer, she reported that her co-worker, Rudolph Jones, had sexually harassed her. A month after the harassment began, Foster notified her superiors about Jones’s conduct. The defendant’s Director of Human Resources conducted an investigation and concluded that Jones had acted inappropriately. Foster alleged that she was retaliated against for complaining about Jones. Foster complained repeatedly to her superiors about the perceived incidents of retaliation to no avail.
Foster’s employment was terminated shortly after her last complaint. The defendant offered several justifications for its decision, including that Foster had used almost all of her personal and sick leave for the year in a relatively short time; that she was inflexible when asked to come in early or stay past the end of her shift; and that she was not a team player. During a deposition, one of Foster’s supervisors offered an additional reason for discharging Foster—that she was an “unacceptable fit” for the position of police officer because she complained too often about perceived retaliation.
Foster filed suit under Title VII of the Civil Rights Act of 1964 alleging retaliatory termination, among other claims. Retaliation plaintiffs can prove retaliation either through direct and indirect evidence (historically referred to as the “mixed motive” analysis, which is rarely invoked by plaintiffs) or through the burden-shifting framework established by the Supreme Court in the landmark decision of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973) (often referred to as the “pretext” analysis, which is more commonly used by plaintiffs). Foster proceeded under the “pretext” framework, which required her to first establish a prima facie case of retaliation by showing: (i) that she engaged in protected activity (i.e., that she complained of unlawful sexual harassment); (ii) that her employer took adverse action against her; and (iii) that a causal relationship existed between the protected activity and the adverse employment action. Under this analysis, the burden would then shift to the defendant to show that it discharged Foster for a legitimate non-retaliatory reason. If the defendant made that showing, the burden would then shift back to Foster to demonstrate that the purported reason for her termination was not true, but was merely a pretext for discrimination.
The district court initially denied the defendant’s motion for summary judgment with respect to Foster’s retaliation claim. However, the defendant 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, 2521 (2013), which held that “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” In other words, after Nassar, it was widely viewed that a successful retaliation plaintiff must prove that retaliatory animus was the only cause of the challenged adverse employment action, regardless of whether a plaintiff pursued relief under the “mixed motive” analysis or through the “pretext” analysis.
The district court in Foster granted the defendant’s motion for reconsideration and dismissed Foster’s retaliation claim on the grounds that, under the new Nassar standard, Foster could no longer satisfy the causation element of a prima facie case of retaliation under the “pretext” analysis—i.e., she could not show that her complaints of unlawful conduct were the but-for cause of her termination.
The Fourth Circuit reversed the district court’s decision with regard to Foster’s retaliation claim. In essence, the court held that Nassar—which was decided under the “mixed motive” framework—did not expressly alter the causation standard for claims brought under the “pretext” analysis. Instead, the court determined that the burden of establishing causation at the prima facie stage under the “pretext” framework is “less onerous” than the strict “but-for” standard of causation announced by Nassar.
Prior to Nassar, a retaliation plaintiff pursuing relief under the “mixed motive” analysis only needed to show—according to a 2004 Fourth Circuit case—that his or her employer was “motivated to take the adverse employment action by both permissible and forbidden reasons.” According to the Fourth Circuit, Nassar “significantly altered the causation standard for [retaliation] claims” brought under the “mixed motive” framework, but had no effect on claims, such as Foster’s, brought under the “pretext” framework.. The court noted a split in authority among circuit courts on this issue, but chose to follow the prevailing view that Nassar did not alter the elements of a prima facie case of retaliation.
Indeed, the Fourth Circuit observed that the “pretext” framework already required plaintiffs to prove that retaliation was the “actual reason” for the challenged employment action. Accordingly, the court concluded that “the McDonnell Douglas [‘pretext’] framework has long demanded proof at the pretext stage that retaliation was a but-for cause of a challenged adverse employment action,” therefore, “Nassar does not alter the legal standard for adjudicating a McDonnell Douglas retaliation claim.”
The Fourth Circuit’s decisions in Boyer-Liberto and Foster will likely reduce the prospect of obtaining summary judgment on claims of hostile work environment or retaliation, thereby increasing the value of these claims in the eyes of prospective plaintiffs and their attorneys. Isolated instances of harassment now present a greater threat of liability to employers. Accordingly, both cases underscore the importance of taking complaints of harassment seriously and avoiding hasty decisions that could be viewed as retaliatory.