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By Eric Benedict

On May 21, 2015, the Fourth Circuit issued its published opinion in the civil case Foster v. University of Maryland-Eastern Shore. In Foster, the court set out to determine the impact of the Supreme Court’s University of Texas Southwestern Medical Center v. Nassar opinion on Title VII retaliation analysis. Iris Foster claimed that the University of Maryland-Eastern Shore (“the University”) discriminated against her based on gender, created a hostile work environment, and retaliated unlawfully. Although the court affirmed the district court’s grant of summary judgment against Foster on her hostile work environment and gender discrimination claims, it reversed the district court’s grant as to the retaliation claim.  Despite disagreement among the circuits, the Fourth Circuit concluded that the Nassar case did not alter the McDonnell Douglas burden shifting framework.

Foster’s Claims at the United States District Court for the District of Maryland

The University hired Foster in March of 2007 as a campus police officer. Foster alleged that before and during her employment at the University, one of her co-workers sexually harassed her repeatedly. After the University was informed of the harassment, it took action in an attempt to remedy Foster’s concerns and the behavior of her co-worker. However, Foster claimed that the University also took action against her as a result of her complaints. According to Foster, the University retaliated by, among other things, extending her probationary period, changing her schedule, and ultimately terminating her employment.  In her original suit, Foster asserted three claims under Title VII: gender discrimination, hostile work environment, and retaliatory termination.

The University filed its motion for summary judgment as to each claim. The District Court originally granted the University’s motions as to the gender and hostile work environment claims, but refused to grant summary judgment as to the retaliation claim. The United States Supreme Court then issued its decision in Nassar. In light of the decision in Nassar, the University filed a motion for reconsideration, asserting that Foster should be held to a higher causation standard. The District Court reviewed the Supreme Court’s holding in Nassar and concluded that both the motion for reconsideration and the motion for summary judgment  should be granted. Foster appealed the District Court’s decision on all three claims to the Fourth Circuit.

Title VII and the Supreme Court’s Holding in Nassar

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits covered employers from discriminating against covered employees and applicants on the basis of sex and other protected traits. 42 U.S.C. §2000e-2 (2012). An employee who attempts to assert a claim under Title VII may do so in two ways. First, the employee may offer direct or indirect evidence of discrimination. Alternatively, the employee may employ a burden shifting framework known as the “McDonnell Douglas framework.”

Judge Floyd explained that in order to prevail under the McDonnell Douglas framework, a plaintiff 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.”  The burden then shifts to the employer to show that the adverse employment action was due to a legitimate reason. The burden then shifts back to the employee to prove that the employers proffered reason is mere pretext.

In Nassar, the Supreme Court explained that discrimination claims under Title VII differ from retaliation claims. The Supreme Court explained that it was permissible for discrimination claims to take advantage of a “mixed-motive” theory. Under this theory the plaintiff must show that discrimination was at least a part of the reason for the adverse employment action. However, the Supreme Court held that such a theory does not extend to retaliation claims, instead the Court required ”but-for” causation.  Therefore, a plaintiff must show that “the unlawful retaliation would not have occurred  in the absence of the alleged wrongful action or actions of the employer.”

The Supreme Court’s Holding in Nassar Does Not Apply to the McDonnell Douglas Analysis

The Fourth Circuit determined that the District Court erroneously applied the Nassar holding to the McDonnell Douglas or ‘pretext’ framework. Judge Floyd reiterated that a plaintiff who files suit under Title VII may proceed by either ‘direct evidence’ or under a ‘pretext’ framework. The Fourth Circuit determined that the Nassar Court’s decision only applied to ‘direct evidence’ claims.

Nassar Does Not Alter Either Portion of the McDonnell Douglas Analysis

The Fourth Circuit concluded that Nassar does not alter the prima facie case portion nor the burden shifting portion of the McDonnell Douglas test.  The court reasoned that the ‘causal relationship’ prong of the prima facie case demands a lower standard than the ‘pretext’ prong because otherwise the pretext prong would be redundant. Further, the court concluded that if the Supreme Court had meant to eliminate the McDonnell Douglas framework, they would have done so explicitly, given its significance to Title VII jurisprudence.

Judge Floyd also explained that the pretext prong of the analysis already required a ‘but-for’ test and was therefore undisturbed by Nassar. Citing Fourth Circuit precedent, the court noted that an employee “must establish ‘both that the [employer’s] reason was false and that [retaliation] was the real reason for the challenged conduct.’” Therefore, Judge Floyd concluded that the pretext prong was not altered by Nassar and that the District Court’s initial judgment was correct.

The Fourth Circuit Remands the Title VII Retaliation Claim

The Court affirmed summary judgment as to the gender discrimination and hostile environment claims. However, it found that Foster’s retaliation claims must survive the summary judgment stage because the holding in Nassar did not alter the causation standard for a Title VII plaintiff who employs the McDonnell Douglas framework.

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