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Fourth Circuit Holds that McDonnell-Douglas Survives Nassar for Prima Facie Retaliation Cases

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In a recent case, Foster v. University of Maryland-Eastern Shore, the Fourth Circuit held that the familiar McDonnell Douglas burden-shifting framework survives the but-for causation standard articulated by the Supreme Court in University of Texas Southwestern Medical Center v. Nassar in 2013. The Fourth Circuit held that Nassar does not alter the burden for Title VII plaintiffs at summary judgment because McDonnell Douglas already incorporates a but-for standard. This case is important for plaintiffs, as it sheds light on questions raised by the Supreme Court in Nassar as to how plaintiffs carry their burdens in employment litigation.

Iris Foster worked for the University of Maryland-Eastern Shore as a campus police officer. The University placed her on a standard probationary period of six months upon hiring. The University did not contest that Foster faced significant sexual harassment from a colleague even before she began her employment. Foster complained of the harassment within the first month of her employment, and the University disciplined Foster’s co-worker, transferring him to a different role, requiring him to attend sexual harassment training, and putting him on a “Last Chance Agreement.”

Foster alleged, however, that the University also retaliated against her for complaining. Shortly before her probation period was set to end, the University extended it. Additionally, Foster alleged that the University changed her schedule without notice, denied her accommodations after an injury, and prevented her from attending a training session. Foster repeatedly complained about the perceived retaliation. The University terminated Foster shortly after her last complaint.

During depositions, Foster’s supervisors offered several explanations for Foster’s termination, including that she was not a “team player” and had engaged in actions that threatened officer safety. But one of her supervisors admitted that another reason for Foster’s termination was that Foster “couldn’t move on” from the harassment and attributed everything that happened to her as retaliation.

Foster sued the University for discrimination based on sex, retaliation for complaining about the discrimination, and subjecting her to a hostile work environment, all in violation of Title VII. The district court granted summary judgment in favor of the University on the discrimination and hostile work environment claims, but denied summary judgment on the retaliation claim. The University filed a Motion for Reconsideration, in light of the intervening decision in Nassar. The district court held that the Nassar standard barred Foster from demonstrating a prima facie case of retaliation. Foster appealed.

The Fourth Circuit noted that Nassar articulated a but-for causation standard for retaliation plaintiffs who base their claim on direct evidence, but noted that Nassar was silent regarding the pretext framework under McDonnell Douglas, which relies on indirect evidence.

The Foster Court walked through the McDonnell Douglas framework, stating that a retaliation plaintiff proceeding under this standard must prove causation at both the prima facie stage and the pretext stage of the burden-shifting framework. The Court noted, however, that the burden at the prima facie stage does not require but-for causation, as such a requirement would render the pretext stage of McDonnell Douglas moot. The Fourth Circuit found no reason to hold that the Supreme Court intended to retire McDonnell Douglas in rendering its decision in Nassar. The Foster Court noted that the pretext stage of McDonnell Douglas inherently requires a showing that retaliation was the but-for cause of the adverse action, and concluded that Nassar does not alter the pretext stage of the burden-shifting framework.

This case is important because it clarifies a plaintiff’s burden in pursuing a Title VII retaliation claim. Requiring plaintiffs to prove but-for causation at the prima facie stage of a Title VII retaliation claim would prematurely end many retaliation claims and run counter to the purposes of Title VII. By allowing plaintiffs to proceed through the familiar burden-shifting framework, the Fourth Circuit refused to impose an improper burden on plaintiffs at the prima facie stage, while still requiring plaintiffs to carry the ultimate burden of persuasion.

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