Lessening the Load: Fourth Circuit Clarifies Plaintiff's Burden of Proof in Retaliation Cases Under Title VII
On May 21, 2015, the Fourth Circuit Court of Appeals clarified a plaintiff’s burden of proof in retaliation cases under Title VII, making it more challenging for employers in the Fourth Circuit to dispute a plaintiff’s prima facie case of retaliation. A prima facie case is the legally sufficient amount of proof of the elements that form a claim.
Foster v. Univ. of Md. – Eastern Shore involved a campus police officer at the University who alleged that she was separated from employment because she complained of sexual harassment and subsequent retaliation. Specifically, the officer alleged that her probationary period had been extended; that she was denied light duty work following an injury; that she was denied tuition remission; and that she was denied the opportunity to attend training while on leave – all because of her harassment complaint. The University contended that the officer was separated from employment because she used all her personal and sick leave in a brief amount of time; was inflexible about her working schedule; was not a team player; and had disciplinary issues.
At the summary judgment stage, the University moved to dismiss the officer’s retaliation claim, but the lower court denied the motion, holding that the officer’s complaint was causally related to her discharge. Subsequently, the University moved the lower court to reconsider its decision based on an intervening decision from the Supreme Court of the United States in Univ. of Tex. S.W. Med. Center v. Nassar, where SCOTUS stated, “Title VII claims require proof that the desire to retaliate was a but-for cause of the challenged employment action.” In response, the lower court agreed to reconsider the University’s summary judgment motion, ultimately deciding that it should be granted.
On appeal, the Fourth Circuit examined whether the Nassar decision should have altered the lower court’s ruling, specifically whether Nassar required a heightened – “but-for” – showing of causation as part of the officer’s prima facie case of retaliation. The court held that the lower court was incorrect in reading the Nassar decision to require a plaintiff to show but-for causation to prove a prima facie case as this would render the McDonnell Douglas framework a dead letter.
Looking to the merits, the Court assessed whether the officer could prove causation under the McDonnell Douglas framework. At the prima facie stage, under the less-onerous causal standard, the officer was able to show causation by pointing to a statement of retaliatory animus, the retaliatory acts preceding her termination, and the proximity in time between her final complaint and termination. At the pretext stage, under her ultimate but-for causal burden, the officer proved causation by noting the disconnect between the University’s reason for her separation from employment and the evidence in the case. This evidence, contrary to what the University contended, suggested that the officer was not inflexible about her work schedule, that she was praised prior to her complaint of harassment, and that she was not told the reason for her termination, all of which could allow a reasonable juror to connect the dots between her complaint of harassment and her separation from employment. Accordingly, the court reversed the University’s award of summary judgment.
The court’s decision presents two takeaways for employers in the Fourth Circuit (West Virginia, Virginia, Maryland, North Carolina, and South Carolina). First, employers may face an uphill battle when challenging the causal element of a plaintiff’s prima facie case of retaliation, as the standard is somewhat less onerous than the plaintiff’s ultimate burden of causal proof. Second, an employer’s legitimate, non-discriminatory reason for a termination is crucial under the McDonnell Douglas framework. Employers should not expect to fend off a plaintiff’s case at the prima facie stage, especially when causation is at issue. They need to note the reason(s) for the termination and document, document, document. A record of poor performance, discipline, insubordination, etc., goes a long way toward building credibility for the reasoning behind a discharge. Further, explain to your employees why they are being disciplined or discharged and document the conversation. If you fail to do so, you risk looking as though you have manufactured a reason for an employment action after the fact. Finally, describe the reason for the termination in an appropriate manner – preferably after taking time to reflect, using facts rather than generalizations, and stating in plain terms the issues that led to the employee’s discharge.