Montgomery v. University of Alabama at Birmingham Hospital

Filing 45

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 4/27/15. (SAC )

FILED
2015 Apr-27 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STAT1ES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMIKA MONTGOMERY,
Plaintiff,
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ALABAMA,
Defendant.

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CIVIL ACTION NO.
2:12-CV-2148-WMA

MEMORANDUM OPINION
On November 4, 2014, magistrate judge Staci Cornelius
entered a report and recommendation (Doc. 39) recommending that
the motion for summary judgment filed by defendant, Board of
Trustees of the University of Alabama (“UAB”) (Doc. 19) be
granted and that the action of plaintiff, Tamika Montgomery
(“plaintiff”), be dismissed with prejudice. Plaintiff filed two
objections to the said report and recommendation. They largely
restate the arguments she made in defense of the motion for
summary judgment (Doc. 21; Doc. 40 at 9, 13)). This court has
given the case de novo review exploring the entire record
considering UAB’s motion for summary judgment without deference
to the magistrate judge’s R&R.
SUPPLEMENTARY OPINION
Without subtracting from the magistrate judge’s opinion this
court feels compelled to make two additional observations

and/or

to give alternative reasons for reaching the conclusion being
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reached both by the magistrate judge and by this court.
The Effect of Nassar on Causation
In Edwards v. National Vision, Inc., a Title VII retaliation
case, this court recently acknowledged that under Title VII, a
causal connection between plaintiff’s protected activity and her
adverse employment action “may be inferred from close temporal
proximity . . . [but] [w]hen causation is based solely on
temporal proximity, the two events must be ‘very close’ to
establish the requisite causal connection.” 946 F. Supp. 2d 1153,
1175 (N.D. Ala. 2013) (quoting Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007). Yet, in Edwards this court
also acknowledged that in light of the oral argument that had
recently taken place in University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517, 2533 (2013), the Supreme Court
might hold in that case that a Title VII retaliation claim
requires “but for” causation. Edwards, at 1176. This court
correctly anticipated the Supreme Court, which did, in fact, make
clear that “Title VII retaliation claims must be proved according
to traditional principles of but-for causation, not the lessened
[motivating factor] causation test.” Nassar, at 2533. Before
Nassar, close temporal proximity alone was thought sufficient to
satisfy the then mere “motivating factor” causation standard.
Post-Nassar, causation based only upon close temporal proximity

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has lost its sway.1 See Hubbard v. Georgia Farm Bureau Mut. Ins.
Co., No. 5:11-CV-290 CAR, 2013 WL 3964908, at *1 (M.D. Ga. July
31, 2013); White v. Caterpillar Logistics, Inc., 2014 WL 7183342,
at *8-9 (E.D.N.C. Dec. 16, 2014) (noting that the pre-Nassar law
regarding temporal proximity may be affected by the heightened
“but-for” causation standard); but see Zann Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 845 (2d Cir. 2013)(“[h]owever, the [Nassar]
but-for causation standard does not alter the plaintiff's ability
to demonstrate causation at the prima facie stage on summary
judgment or at trial indirectly through temporal proximity”).
Under the pre-Nassar “motivating factor” framework for
retaliation cases, the Eleventh Circuit had construed the “causal
link element broadly so that a plaintiff merely ha[d] to prove
that the protected activity and the adverse action [we]re not
completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004); see Clover v. Total Sys. Servs., Inc., 176 F.3d

1

After Nassar, this court indicated that when establishing
a prima facie case of retaliation under McDonnell Douglas,
“summary judgment for defendant [is appropriate] because it [is]
improper to ‘allow a factfinder to decide, without any basis
other than temporal proximity, that the decision maker is
lying.’” Jackson v. United Parcel Serv., Inc., 2013 WL 5525972,
at *14 (N.D. Ala. Oct. 4, 2013) (quoting Brungart v. BellSouth
Telecomm., Inc., 231 F.3d 791, 800 (11th Cir.2000)). Yet because
plaintiff did not show the employer was aware of her EEOC
complaint, “the court [did] not reach the issue of whether the
hiring decision had sufficient temporal proximity to the EEOC
complaint to show causation, nor need it revisit the second and
third stages of the McDonnell Douglas test.” Id. at *15.
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1346, 1354 (11th Cir. 1999); Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998); Simmons v. Camden County Bd. Of
Educ., 757 F.2d 1187, 1189 (11th Cir. 1985). Yet, even under this
relaxed standard, in order to demonstrate causation, the temporal
proximity had to be “close,” and the decision-maker must have had
knowledge that the employee had engaged in protected conduct.
Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799
(11th Cir. 2000); see Jarvela v. Crete Carrier Corp., 2015 WL
348602, at *8 (11th Cir. Jan. 28, 2015) (“[t]emporal proximity
alone is insufficient to establish a causal connection in the
absence of actual knowledge by the employer”) and Clover v. Total
Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (“[a]t a
minimum, a plaintiff must generally establish that the employer
was actually aware of the protected expression at the time it
took adverse employment action”).
Before Nassar the Eleventh Circuit routinely applied the
“motivating factor” standard in Title VII retaliation cases.
Other circuit courts had already embraced the Nassar “but-for”
causation standard for retaliation at varying stages of the
McDonnell Douglas framework and had determined that under this
stricter standard mere temporal proximity is insufficient proof
of causation.
Before Nassar, the Fifth Circuit allowed temporal proximity
at the prima facie stage of the McDonnell Douglas framework while
4

applying a “but for” causation standard at the pretext stage. For
a prima facie case, plaintiff need “not prove that [the]
protected activity was the sole [motivating] factor” but rather
“[c]lose timing between an employee's protected activity and an
adverse action against [plaintiff] may provide the causal
connection required to make out a prima facie case of
retaliation.” Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001) (quotation marks omitted). However, at the pretext
stage of the McDonnell Douglas framework, “the but for standard
applies.” Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802,
806 (5th Cir. 2007) (citing Septimus v. Univ. of Houston, 399
F.3d 601, 608 (5th Cir. 2005)). Under this heightened standard,
the Fifth Circuit “affirmatively reject[ed] the notion that
temporal proximity standing alone can be sufficient proof of but
for causation.” Strong, at 808. In a case of Title VII
retaliation where “[plaintiff] is left with no evidence of
retaliation save temporal proximity, . . . [it] alone is
insufficient to prove but for causation.” Strong, at 808.2
2

See Dixon v. Moore Wallace, Inc., 236 F. App'x 936, 938
(5th Cir. 2007)(“While very close temporal proximity alone may be
adequate to establish a prima facie case of retaliation in some
instances, temporal proximity alone is insufficient to prove but
for causation”); James v. Fiesta Food Mart, Inc., 393 F. App'x
220, 224 (5th Cir. 2010) (“a plaintiff cannot rely solely on
suspicious timing to carry his burden at the pretextual stage of
the burden-shifting framework . . . [i]n the face of evidence of
a non-retaliatory reason for the adverse action, a plaintiff must
show that retaliatory motives were the but-for cause of that
action”) and Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658
5

Even before Nassar, the Seventh Circuit applied “but for”
causation at the prima facie stage of the McDonnell Douglas
framework, thereby requiring that a plaintiff “demonstrate that
[the employer] would not have taken the adverse action ‘but for’
the protected expression.” Gleason v. Mesirow Fin., Inc., 118
F.3d 1134, 1146 (7th Cir. 1997). Under this causal standard, the
Seventh Circuit determined that “[p]ost hoc ergo propter hoc is
not enough to support a finding of retaliation—if it were, every
employee would file a charge just to get a little unemployment
insurance.” Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179
(7th Cir. 1998)(Easterbrook, J.). While “[t]iming may be an
important clue to causation . . . [it] does not eliminate the
need to show causation [for retaliation under Title VII].”
Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.
1998); see Perrywatson v. United Airlines, Inc., 762 F. Supp. 2d
1107, 1124 (N.D. Ill. 2011) (“post hoc ergo propter hoc . . . is
not an argument but the name for a logical fallacy—an inadequate
reason to infer causation”).
The Eleventh Circuit has not yet expressly said “yes” to
close temporal proximity as enough to meet a plaintiff’s burden

(5th Cir. 2012) (“To defeat a motion for summary judgment, a
plaintiff must demonstrate “a conflict in substantial evidence on
[the] ultimate issue” of “but for” causation . . .[and]
[t]emporal proximity, standing alone, is not enough”).
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under the heightened “but-for” causation standard.3 In an
unpublished opinion, the Eleventh Circuit relied on its preNassar decisions to reiterate that to establish causation for a
prima facie case of retaliation, “a plaintiff may be able to rely
solely on the temporal proximity . . . but [it] must be ‘very
close.’”4 Ramirez v. Bausch & Lomb, Inc., 546 F. App'x 829, 832
(11th Cir. 2013) (citing Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007)). Despite its citation to pre-

3

The Eleventh Circuit has only opined on temporal proximity
in unpublished opinions since Nassar. See Penaloza v. Target
Corp., 549 F. App'x 844, 847 (11th Cir. 2013); Schmidt v. City of
Atlanta, 558 F. App'x 953, 955 (11th Cir. 2014); Fisher v. SP
One, Ltd., 559 F. App'x 873, 878 (11th Cir. 2014); Edwards v.
Nat'l Vision Inc., 568 F. App'x 854, 862 (11th Cir. 2014); Adams
v. City of Montgomery, 569 F. App'x 769, 773 (11th Cir. 2014);
Taylor v. Teakdecking Sys., Inc., 571 F. App'x 767, 771 (11th
Cir. 2014); Carson v. Metro. Atlanta Rapid Transit Auth., 572 F.
App'x 964, 969 (11th Cir. 2014); Manley v. DeKalb Cnty., Georgia,
587 F. App'x 507, 513 (11th Cir. 2014); Butterworth v. Lab. Corp.
of Am. Holdings, 581 F. App'x 813, 816 (11th Cir. 2014); Jackson
v. United Parcel Serv., Inc., 593 F. App'x 871, 877 (11th Cir.
2014); Rives v. Lahood, 2015 WL 1320586, at *3 (11th Cir. Mar.
25, 2015); Baroudi v. Sec'y, U.S. Dep't of Veterans Affairs, 2015
WL 1475586, at *3 (11th Cir. Apr. 2, 2015).
4

While these courts often rely on the “very close” language
of Breeden for authority and support for temporal proximity, in
Breeden the Supreme Court merely surveyed the federal courts that
had addressed temporal proximity and summarized that “[t]he cases
that accept mere temporal proximity between an employer's
knowledge of protected activity and an adverse employment action
as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be “very
close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273-74(2001).
7

Nassar temporal proximity authority without any dispositive
significance being given to Nassar, the Eleventh Circuit limited
its non-binding holding by emphasizing other evidence of
causation to be considered by the trial court on remand,
referring the question of the impact of Nassar to the trial
court. Ramirez, 546 at 833 & n.2. “[While] a plaintiff must
demonstrate ‘but for’ causation when making a Title VII
retaliation claim . . . [Nassar] did not clarify the role of ‘but
for’ causation in a plaintiff's prima facie case.” Id. To resolve
this, the district court “on remand . . . may need to consider
whether [plaintiff] has sufficiently satisfied ‘but for’
causation in this case.” Id.
This court believes that any reluctance by the Eleventh
Circuit to

fully to embrace Nassar has dissipated. This court is

therefore willing to perform what the Eleventh Circuit’s nonbinding opinion in Ramirez asked the trial court. In two
instances, this court has already addressed and applied Nassar at
the prima facie case stage of the McDonnell Douglas framework.
Lanier v. Bd. of Trustees of Univ. of Alabama, 2014 WL 657541, at
*5 (N.D. Ala. Feb. 20, 2014) and Gautney v. Tennessee Valley
Auth. Bd. of Directors, 9 F.Supp.3d 1245, 1253-54 (N.D. Ala.
2014). Both of these cases, however, involved a five month
interval between the adverse employment action and the protected
activity, a time interval that is insufficient to prove causation
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even under the pre-Nassar regime. Gautney at 1254 and Lanier at
*6.
In the instant case, the interval between Montgomery’s
alleged protected activity and her final discharge was a mere
fourteen days. This fact forms Montgomery’s only evidence of
causation in her prima facie case. (Doc 40 at 2-3). Under the
pre-Nassar standard, such a short period would be found to
establish causation for a prima facie case of retaliation. Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007);
see

Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th

Cir. 1998) (finding an adverse employment action the day after
filing an EEOC charge to be sufficient causation for a prima
facie case of retaliation). While this level of proof was enough
when a plaintiff needed to show only that the protected activity
was one of several potential motivating factors, this court is of
the opinion that temporal proximity alone does not meet the new
“but for” causation standard. Indeed, as the Eleventh Circuit
opined in another context:
The post hoc ergo propter hoc fallacy assumes causality from
temporal sequence. It literally means “after this, because
of this.” Black's Law Dictionary 1186 (7th ed.1999). It is
called a fallacy because it makes an assumption based on the
false inference that a temporal relationship proves a causal
relationship.
McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1243 (11th Cir.
2005); see Abbott v. Fed. Forge, Inc., 912 F.2d 867, 875 (6th

9

Cir. 1990) ("[b]ut post hoc, ergo propter hoc is not a rule of
legal causation”). Under Nassar, as this court understands the
Supreme Court, Montgomery must establish that her protected
activity was the “but-for” cause of her discharge. Univ. of Texas
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). This is
true both ultimately and at the prima facie stage. Merely showing
that she was terminated shortly after she complained does not
meet the prima facie standard for proof that she was terminated
only because she complained. Id. Therefore, because Montgomery
has failed to establish a prima facie case for retaliation under
Nassar, summary judgment is appropriate.
Even if temporal proximity could in certain circumstances
constitute sufficient proof of causation after Nassar,
Montgomery’s attendance record of tardiness and her written
counselings cut the pinnings from under temporal proximity as
sufficient proof of causation. “[I]n a retaliation case, when an
employer contemplates an adverse employment action before an
employee engages in protected activity, temporal proximity
between the protected activity and the subsequent adverse
employment action does not suffice to show causation.” Drago v.
Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (emphasis added).

In

this case, while Montgomery contends that most of her tardy
violations had expired under UAB’s written employment policy, she
admits to at least two tardy occurrences and three written
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counselings that had not been forgiven. (Doc. at 4-5). When she
complained of discrimination on December 6, 2010, she had tardy
occurrences (Doc. 20-1 at 67-68) and written counselings (Doc.
20-1 at 62-63) predating her complaint. The undisputed attendance
records and counseling documentation reflect UAB’s serious
concern about Montgomery’s performance both before and after she
complained of discrimination. (Doc. 20-2 at 39-42); see Francis
v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir.
2006) (“[w]here timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before
the plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise”) and Verma v. Univ. of
Pennsylvania, 533 F. App'x 115, 119 (3d Cir. 2013)(“[t]his Court
has declined to infer such a causal link where an employee's
negative performance evaluations predated any protected activity
. . . [and] [plaintiff] has presented no evidence that suggests
any causal connection between her allegations of discrimination
and her termination, let alone evidence to suggest that such
activity was the but-for cause of her termination [under
Nassar]”). This court agrees with the Third Circuit.
Another Problem for Plaintiff under Nassar
Plaintiff’s original complaint charged both race
discrimination and retaliation as motives for defendant’s adverse
employment action. When plaintiff amended her complaint to remove

11

her claim of racial discrimination she did not explain nor even
assert that her amendment was meant to indicate that retaliation
was the “only,” or “but for” motive for her termination. She
never formally sought dismissal of her race claim. This court is
of the belief that in order to pursue a retaliation claim under
Nassar a plaintiff must make it perfectly clear in her pleading
that there are no proscribed motivations other than an intent to
retaliate. Most of the discovery conducted in this case was
relevant only to her race and/or gender claims, which she left
out of her amended complaint but has never conceded to be without
colorable merit. Under this procedural circumstance she fails
even facially to meet the Nassar standard.
CONCLUSION
The court OVERRULES Montgomery’s objections to the report
and recommendation and ADOPTS the report, as hereinabove
supplemented. A separate order effectuating this opinion will be
entered,

DONE this 27th day of April, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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