Professional Documents
Culture Documents
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:
Decided:
appeal
concerns
the
effect
of
the
Supreme
Courts
Nassar,
the
Court
held
that
successful
retaliation
Because
we
Douglas
conclude
that
Nassar
did
not
alter
the
McDonnell
I.
On
March
12,
2007,
Plaintiff-Appellant
Iris
Foster
was
(the
University)
as
campus
police
officer. 1
Her
appointment
was
subject
to
standard
six-month
probationary
Foster
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 Joness inappropriate sexual conduct.
First,
Foster then
the
for
Universitys
Vice
President
4
Administrative
Affairs,
Billie recommended that Holden transfer Jones away from his role
as supervisor of campus security guards, require him to take
sexual
harassment
training,
Chance
Agreement
putting
and
him
require
on
him
notice
to
that
sign
he
Last
would
be
for
complaining
about
Jones.
few
weeks
before
University
months
by
retaliated
changing
her
against
schedule
over
without
the
notice,
next
several
denying
her
to
Wright
and
Billie
about
the
perceived
incidents
of
retaliation.
Less than a month after Fosters last complaint, Wright
recommended Foster for termination. 3
29, 2007, in a letter that did not explain the reasons for
Fosters 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.
also
allegedly
observed
that
Foster
had
been
They
disciplined
by
threatening
officer
safetyand
for
believed
experience
Foster
and
was
officer
that
an
became
Foster
University
she
was
preoccupied
unacceptable
because
retaliation.
Foster
fit
complained
fixated
with
on
it.
J.A. 32324.
her
She
for
the
too
often
harassment
agreed
position
about
appealed
System
of
her
termination,
Maryland
first
Grievance
(EEOC),
with
which
the
found
Equal
Employment
insufficient
this
suit.
Her
then
evidence
complaint
and
the
A Maryland
Opportunity
perceived
through
Procedure
police
J.A. 323.
of
that
to
Commission
support
her
Foster subsequently
alleges
three
causes
of
2000e
et
seq.:
discriminatory
termination
based
on
training
demonstrated
retaliatory
animus
that
was
The
court
concluded
that,
under
the
new
Nassar
facie
case:
While
the
evidence
may
have
been
sufficient
to
and
her
termination,
it
is
wholly
insufficient
to
determinative
reason
for
her
termination
under
Nassar.
J.A. 1166.
Foster timely appealed the grant of summary judgment as to
all three claims.
II.
We review a grant of summary judgment de novo.
Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.
1996).
genuine
Summary
dispute
judgment
as
to
any
is
appropriate
material
fact
when
and
there
the
is
no
movant
is
Bostic v. Schaefer,
760 F.3d 352, 370 (4th Cir. 2014) (quoting Fed. R. Civ. P.
56(a)).
A fact is
so,
we
must
determinations.
not
weigh
of
judgment.
or
make
In
credibility
evidence
Id. at 312.
fact
in
favor
of
the
party
seeking
summary
curiam).
III.
To
the
determine
Universitys
whether
summary
Fosters
judgment
retaliation
motion,
claim
we
survives
must
first
McDonnell Douglas framework, which already incorporates a butfor causation analysis, provides the appropriate standard for
reviewing Fosters claim.
A.
Title
VII
prohibits
an
employer
from
both
or
retaliation.
Plaintiffs
may
42
prove
U.S.C.
2000e-2(a)(1),
these
violations
either
(4th
Cir.
avenues
of
pretext
2004).
proof
We
as
framework,
have
the
also
referred
mixed-motive
respectively.
to
these
framework
Hill
v.
two
and
Lockheed
the
Martin
Logistics Mgmt., Inc., 354 F.3d 277, 28485 (4th Cir. 2004) (en
banc).
It
proceed
by
McDonnell
is
left
direct
Douglas
to
and
the
plaintiffs
indirect
discretion
evidence
burden-shifting
or
by
whether
framework.
mean
to
of
the
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
benefit
of
the
or
simply
prefers
burden-shifting
to
proceed
framework,
she
without
is
under
the
no
we
have
considered
Title
VII
retaliation
380
F.3d
at
212
(analyzing
retaliation
See,
claim
the
mixed-motive
framework).
In
light
of
the
Supreme
So long
action,
the
employee
could
recovereven
if
the
Nassar,
however,
Id.
the
Supreme
Court
held
that
the
Unlike discrimination
for
Nassar
claims
significantly
based
on
direct
altered
the
evidence
of
Id.
causation
retaliatory
F. Appx 343, 346 (4th Cir. 2013) (noting that the Supreme Court
in
Gross
analogous
v.
FBL
case
Fin.
upon
Serv.
which
Inc.,
the
557
Nassar
U.S.
court
167
(2009),
relied
an
heavily,
12
However,
Rather,
she proceeds under the pretext framework, which Nassar does not
purport to address.
B.
The
McDonnell
Douglas
framework
is
three-step
burden-
existed
between
the
protected
activity
and
the
The
13
burden
then
purportedly
shifts
to
retaliatory
the
University
action
was
in
to
fact
show
the
that
result
its
of
a
If
the employer makes this showing, the burden shifts back to the
plaintiff to rebut the employers evidence by demonstrating that
the employers purported nonretaliatory reasons were not its
true
reasons,
but
were
pretext
for
discrimination.
Id.
601
plaintiff
F.3d
is
289,
able
295
to
(4th
prove
Cir.
2010).
causation
In
even
this
without
way,
direct
the
employers
undisclosed
retaliatory
animus
was
the
the
trier
of
fact
to
conclude
that
the
employer
unlawfully discriminated.).
Thus,
Foster
must
establish
causation
at
two
different
14
her
ultimate
burden
of
persuasion.
We
consider
the
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.
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, 43738 (5th Cir. 2007))), revd, 133 S. Ct. 2517
(2013).
10
As
an
initial
matter,
the
causation
standards
for
not
identical.
Rather,
the
burden
for
establishing
Cerberonics,
Inc.,
871
F.2d
452,
457
(4th
Williams
Cir.
1989).
at
the
prima
facie
stage)
would
be
tantamount
to
the
prima
facie
they
will
necessarily
be
able
to
16
pretext
evidence
would
never
be
permitted
past
the
prima
it
would
have
spoken
plainly
and
clearly
to
that
We therefore hold that Nassar does not alter the causation prong
of a prima facie case of retaliation. 13
12
17
2.
We next consider whether Nassar alters the pretext stage of
the McDonnell Douglas framework.
plaintiff
who
establishes
prima
facie
case
of
In
order
to
carry
this
burden,
plaintiff
must
establish both that the [employers] 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. Marys Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993)).
Nassars 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
can
show
that
retaliation
was
the
real
A plaintiff
reason
for
the
quotation
marks
and
citation
omitted).
In
other
but
for
her
employers
retaliatory
animus
are
functionally equivalent.
We
framework
conclude,
has
retaliation
long
was
employment action.
therefore,
that
demanded
proof
but-for
cause
the
at
of
the
a
McDonnell
pretext
Douglas
stage
challenged
that
adverse
14
C.
Having clarified the proper legal standard for assessing a
Title VII retaliation claim in light of Nassar, we turn to the
Universitys motion for summary judgment.
was
sufficient
J.A. 1075.
to
generate
jury
question
on
We agree.
existed
between
the
protected
activity
and
the
Only the
that
the
employers
reason
is
actually
a
pretext
for
retaliation, which the employee accomplishes by showing that
the adverse action would not have occurred but for the
employers retaliatory motive . . . . (internal citations
omitted) (citing Nassar, 133 S. Ct. at 2533)); Hague, 560 F.
Appx at 336 (An employee establishes pretext by showing that
the adverse action would not have occurred but for the
employers retaliatory reason for the action.) (citing Nassar,
133 S. Ct. at 253334); 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
employees participation in the protected activity.).
20
Foster
argues
that
she
can
show
causation
by
means
of
and
retaliation.
Holden
fired
Foster
because
she
complained
about
complained
to
Billie
about
perceived
retaliation
on
F.3d 145, 151 & n.5 (4th Cir. 2003) (finding that a two-and-ahalf
month
employment
gap
between
action
was
protected
sufficiently
activity
narrow
and
to
an
adverse
establish
the
16
proximity).
The University
proximity, we may only
harassment and not her
This is plainly contrary
F.3d 450, 460 (4th Cir.
an employee was demoted
complaint).
Taken
together,
this
evidence
is
21
of
legitimate,
non-retaliatory
reason
for
her
because
too
she
unwilling
to
used
much
accommodate
leave
changes
time,
to
her
was
inflexible
schedule,
and
and
moved
Foster
pretextual
because:
the
department
scheduler
(i) Fosters
both
immediate
testified
that
supervisor
Foster
was
and
not
documentation
personnel
file;
of
Fosters
supposed
(iii) Fosters
immediate
inflexibility
supervisor
in
her
testified
that Foster had been given permission to edit the office forms
and that Wright had initially praised her work; (iv) Fosters
immediate supervisor repeatedly praised her work and discussed
promoting her to corporal before she made her sexual harassment
17
22
complaint;
and
(v) the
University
did
not
initially
provide
this
evidence,
the
district
court
concluded
that
We
could
agree.
reasonable
jury
conclude
from
Fosters
real
further
reasons
for
concludeas
firing
required
her.
by
reasonable
Reeves
and
jury
could
Nassarthat
the
her
harassment
retaliation.
of
the
for
and
complaining
for
her
about
subsequent
Joness
alleged
complaints
of
sexual
ongoing
University
is
not
warranted
on
Fosters
retaliation
claim.
IV.
Foster also appeals the district courts grant of summary
judgment
on
her
gender-based
discrimination
18
and
hostile
work
23
A.
The district court found that Foster failed to make out a
prima
facie
case
of
gender-based
discriminatory
discharge
See Causey v.
Balog, 162 F.3d 795, 802 (4th Cir. 1998) (noting comparable
qualifications
element
of
prima
facie
case).
Although
her
but argues that we should bypass our precedent and instead adopt
the
approach
of
the
Sixth
Circuit,
which
does
not
impose
raises for the first time on the last page of her reply brief
and is, in any event, waivedis unavailing.
See McMellon v.
United
2004)
States,
387
F.3d
329,
332
(4th
Cir.
(en
banc)
24
B.
The district court also correctly granted summary judgment
on Fosters hostile work environment claim.
In order to make
omitted).
The
district
court
found
that
Foster
harassment
is
imputable
to
an
employer
when
the
F.3d
559,
565
(4th
Cir.
2006)
Howard v. Winter,
(citation
and
internal
Jones
to
position
where
he
would
no
longer
Last
undisputed
Chance
that
Agreement.
Foster
was
not
25
J.A.
1059.
sexually
It
is
harassed
also
after
undisputed
facts,
we
affirm
the
district
From
courts
See EEOC v.
Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (A remedial
action
that
effectively
stops
the
harassment
will
be
deemed
argues
that
she
can
should
have
known
still
about
prevail
Joness
because
the
harassment
and
sexually
harassed
her.
As
we
have
previously
held,
an
employees
other
than
the
plaintiff
will
often
prove
F.2d
100,
107
(4th
Cir.
1989),
in
part
on
other
grounds, 900 F.2d 27, 28 (4th Cir. 1990) (per curiam) (en banc).
Here,
Joness
as
past
evidence
harassment
that
of
the
University
Employee
C,
was
Foster
on
has
notice
of
produced
Maryland
Commission
on
Human
Relations
(MCHR),
Billies
Employee
University
had
arising
response,
the
filed
from
an
MCHR
alleged
University
argues
complaint
harassment
that
this
by
against
the
Jones.
Circuit
In
does
not
University
engaging
in
was
not
sexual
on
notice
harassment
of
Joness
because
propensity
both
its
for
internal
to
the
Universitys
argument,
the
rule
we
We
if
duty
to
they
prevent
sexual
anticipated
or
harassment,
and
will
reasonably
should
be
have
323,
liability
331
arose
(4th
Cir.
because
1999)
the
(noting
employer
was
that
in
already
Paroline,
on
notice
Jones
would
harass
Foster
in
light
of
Employee
Cs
prior
complaints of harassment.
In
Paroline,
the
plaintiff
produced
evidence
that
her
testimony,
the
also
investigated
Employee
J.A. 56364.
19
28
require
employers
accused
of
to
harassment,
discipline
regardless
or
of
terminate
whether
all
the
employees
accusations
victim
of
Joness
sexual
harassment.
The
harassment
is
V.
For the foregoing reasons, we reverse in part the district
courts 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