Filed: May 21, 2015
Latest Update: Mar. 02, 2020
Summary: 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 KEE
Summary: 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 KEEN..
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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
