Iris Foster v. University of MD Eastern Shore

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-01933-TJS. [999587597]. [14-1073]

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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

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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.

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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 mixedmotive 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

Douglas

conclude

that

Nassar

did

not

alter

the

McDonnell

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

1

police

officer. 1

Her

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.

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appointment

was

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subject

to

a

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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.
her,

made

lewd

or

Among other things, Jones stared at

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

for

University’s

Vice

President
4

Administrative

Affairs,

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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,

Chance

Agreement”

putting

and
him

require
on

him

notice

to

that

sign
he

a

“Last

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.
the

University

months

by

retaliated

changing

her

against

schedule

Foster further claims that
her

over

without

the

notice,

next

several

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.

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to

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Wright

and

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Billie

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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.
also

allegedly

observed

that

Foster

had

been

They

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.

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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].”
Billie

believed

experience
Foster

and

was

officer

that

an

became

Foster
University

she

was

preoccupied

“unacceptable

because

retaliation.

Foster

fit”

fixated
with

on

it.

her
She

for

the

too

complained

J.A. 323–24.

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

Foster then filed

evidence

complaint

and

the

A Maryland

Opportunity

complaint and issued a right-to-sue letter.
initiated

perceived

through

Procedure

Administrative Law Judge rejected her appeal.
complaint

police

J.A. 323.

before the state Office of Administrative Hearings.

a

of

that

to

Commission

support

her

Foster subsequently

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.
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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.

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“While

the

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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).
genuine

“Summary
dispute

judgment
as

to

any

is

appropriate

material

fact

entitled to judgment as a matter of law.’”

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 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
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most favorable to the nonmoving party . . . .”
doing

so,

we

must

determinations.

not

weigh

of

judgment.”

or

make

In

credibility

Mercantile Peninsula Bank v. French, 499 F.3d

345, 352 (4th Cir. 2007).
disputes

evidence

Id. at 312.

fact

in

“[C]ourts may not resolve genuine

favor

of

the

party

seeking

summary

Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per

curiam).

III.
To
the

determine

University’s

whether
summary

Foster’s
judgment

retaliation
motion,

claim
we

survives

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 butfor 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
2000e-3(a).

or

retaliation.

Plaintiffs

may

42
prove

U.S.C.

§§

2000e-2(a)(1),

these

violations

either

through direct and indirect evidence of retaliatory animus, or
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through the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).
212

(4th

Cir.

“avenues

of

“pretext”

2004).

proof”

We

as

framework,

Price v. Thompson, 380 F.3d 209,

have

the

also

referred

“mixed-motive”

respectively.

to

these

framework

Hill

v.

two

and

Lockheed

the

Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284–85 (4th Cir. 2004) (en
banc).

It

proceed

by

McDonnell

is

left

direct
Douglas

to
and

the

plaintiff’s

indirect

discretion

evidence

burden-shifting

or

by

whether
of

the

Diamond

framework.

mean

to

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

obligation to make out a prima facie case.”).
Historically,

we

have

considered

Title

VII

retaliation

claims under the same standard as discrimination claims.
e.g., Price,

380

F.3d

at

212

(analyzing

a

retaliation

See,
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.”
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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.
In

Nassar,

however,

Id.
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.”
Clearly,
standard

for

Nassar
claims

significantly
based

on

altered

direct

the

evidence

of

Id.

causation
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

analogous

v.

FBL

case

Fin.

upon

Serv.

which

Inc.,

the

6

557

Nassar

U.S.
court

167

(2009),

relied

an

heavily,

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.

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eliminated mixed-motive liability under the ADEA). 7
Foster does not claim to proceed by direct evidence. 8

However,
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.
318.

Diamond, 416 F.3d at

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

adverse employment activity.”

the

protected

activity

and

Price, 380 F.3d at 212.

the
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).

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burden

then

purportedly

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shifts

to

retaliatory

the

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University

action

was

legitimate non-retaliatory reason.

in

to

fact

show
the

that

result

its
of

Hill, 354 F.3d at 285.

a
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

plaintiff

F.3d
is

289,

able

295
to

(4th

prove

Cir.

2010).

causation

In

even

this

without

way,

a

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

actual cause of her termination.

retaliatory

animus

was

the

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

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ultimate

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burden

of

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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)
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As

an

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initial

matter,

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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.”
v.

Cerberonics,

Inc.,

871

F.2d

452,

457

(4th

Williams

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:
at

the

prima

facie

If plaintiffs can prove but-for causation
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.

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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

facie stage to reach the pretext stage. 12

past

the

prima

Had the Nassar Court

intended to retire McDonnell Douglas and set aside 40 years of
precedent,
effect.

it

would

have

spoken

plainly

and

clearly

to

that

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).

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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

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by the McDonnell Douglas “real reason” standard. 14
who

can

show

that

retaliation

“was

the

real

A plaintiff

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
framework

conclude,
has

retaliation

long

was

employment action.

a

therefore,

that

demanded

proof

but-for

cause

the

at
of

the
a

McDonnell
pretext

Douglas

stage

challenged

that

adverse

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)
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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
pretext.”

was

“sufficient

J.A. 1075.

to

generate

a

jury

question

on

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

adverse employment activity.”

the

protected

activity

Price, 380 F.3d at 212.

and

the

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.”).

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Foster

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argues

that

she

Pg: 21 of 29

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

retaliation.

Holden

fired

Foster

because

she

complained

about

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-ahalf

month

employment

gap

between

action

was

protected

sufficiently

activity
narrow

and
to

an

adverse

establish

the

causation prong of the prima facie case solely on the basis of
temporal

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

argues that, in considering temporal
look to Foster’s initial complaint of
subsequent complaints of retaliation.
to law. See, e.g., Carter v. Bell, 33
1994) (finding temporal proximity where
six weeks after a hearing on his EEO

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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

too

she

unwilling

to

used

much

accommodate

leave

changes

time,
to

her

was

inflexible

schedule,

and

furniture and edited office forms without permission.

and
moved

Foster

argues that the University’s proffered non-retaliatory reasons
are

pretextual

because:

the

department

scheduler

(i) Foster’s
both

immediate

testified

that

supervisor
Foster

was

and
not

inflexible in scheduling; (ii) Wright testified that there was
no

documentation

personnel

file;

of

Foster’s

supposed

(iii) Foster’s

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) 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

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complaint;

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and

(v) the

Pg: 23 of 29

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

could

agree.

A

reasonable

jury

conclude

from

Foster’s

evidence that the University’s proffered justifications were not
its

real

further

reasons

for

conclude—as

firing

required

her.
by

A

reasonable

Reeves

and

jury

could

Nassar—that

the

University’s actual reason for firing Foster was to retaliate
against

her

harassment
retaliation.
of

the

for
and

complaining
for

her

about

subsequent

Jones’s

alleged

complaints

of

sexual
ongoing

We therefore find that summary judgment in favor

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

18

and

hostile

work

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.

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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

comparable qualifications requirement.

does

not

impose

a

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

2004)

States,

387

F.3d

329,

332

(4th

Cir.

(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 genderbased discrimination claim.

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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.”
446

F.3d

559,

565

(4th

quotation marks omitted).

Cir.

2006)

Howard v. Winter,

(citation

and

internal

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

undisputed

Chance

that

Agreement.”

Foster

was

not
25

J.A.

1059.

sexually

It

is

harassed

also
after

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complaining to the University about Jones’s harassment.
these

undisputed

facts,

we

affirm

the

district

From

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
University

argues

that

she

can

“should

have

known”

still

about

prevail

Jones’s

because

the

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.”
879

F.2d

100,

107

(4th

Cir.

1989),

Paroline v. Unisys Corp.,
rev’d

in

part

on

other

grounds, 900 F.2d 27, 28 (4th Cir. 1990) (per curiam) (en banc).
Here,
Jones’s

as

past

evidence
harassment

that
of

the

University

Employee

C,

was

Foster

on
has

notice

of

produced

Employee C’s deposition, Employee C’s complaint filed with the
26

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Maryland

Filed: 05/21/2015

Commission

on

Pg: 27 of 29

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

University

C

had

arising

response,

the

filed

from

an

MCHR

alleged

University

argues

complaint

harassment
that

this

by

against

the

Jones.

Circuit

In

does

not

recognize such a theory of liability and that even if it did,
the

University

engaging

in

was

not

sexual

on

notice

harassment

of

Jones’s

because

propensity

both

its

for

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
liable

if

duty

to

they

prevent

sexual

“anticipated

or

harassment,

and

will

reasonably

should

be

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,

liability

331
arose

(4th

Cir.

because

1999)

“the

(noting

employer

. . . of the harasser’s propensities”).

was

that

in

already

Paroline,
on

notice

The question, then, is

whether the University reasonably should have anticipated that
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would

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harass

Foster

Pg: 28 of 29

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.
uncontradicted

testimony,

the

Moreover, according to Holden’s
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 . . . .”).

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require

employers

accused

of

to

harassment,

Pg: 29 of 29

discipline
regardless

or
of

against them are supported by evidence.

terminate
whether

all
the

employees
accusations

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