Donald v. UAB Hospital Management LLC

Filing 24

MEMORANDUM OPINION AND ORDER For the reasons stated within, Donald's retaliation claim will be dismissed unless, by July 6, 2015, she amends her retaliation claim to allege but-for causation and dismisses her race discrimination claim. Signed by Judge William M Acker, Jr on 6/29/15. (SAC )

FILED
2015 Jun-29 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATOSHIA E. DONALD,

}
}
Plaintiff,
}
}
v.
}
}
UAB HOSPITAL MANAGEMENT, LLC, }
}
Defendant.
}

CIVIL ACTION NO.
2:14-cv-727-WMA

MEMORANDUM OPINION AND ORDER
Before the court are the responses of plaintiff Latoshia
Donald (Doc. 21) and defendant UAB Hospital Management, LLC (“UAB”)
(Doc. 23) to this court’s order (Doc. 20) to show cause why Donald
should not be required to dismiss some of her claims. For the
reasons set forth below, Donald will be required to dismiss either
her retaliation claim or her race discrimination claim.
BACKGROUND1
Donald, an African-American, worked for UAB as a Registered
Nurse from October 2012 until April 2013. (Doc. 1 at 2-3, ¶¶ 8, 10,
14). Donald alleges that she and other African-American coworkers
were constantly subjected to “racially discriminatory comments and
treatment.” (Doc. 1 at 3, ¶ 11). On April 8, 2013, Donald and her
coworkers complained to UAB’s Human Resources department about this
treatment and about UAB’s solution, namely, simply to assign the

1

To the extent the court draws factual inferences, they are drawn in
favor of Donald. See M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1156
(11th Cir. 2006).

1

complaining African-Americans to different shifts. (Doc. 1 at 3, ¶
14). UAB terminated Donald during her next shift, saying that it
was because of a patient complaint. Donald had no history of
patient complaints, and no investigation was undertaken regarding
this complaint. (Doc. 1 at 4, ¶¶ 17-18). Donald attempted to seek
internal review of her termination, claiming that it was an act of
discrimination, but UAB denied review based upon the fact that its
policies did not permit her to obtain review when her supervisors
were also African-American. (Doc. 1 at 4, ¶¶ 19-20).
Donald filed this action against UAB on April 21, 2014. In her
complaint, she presents three claims of causes of action, all under
Title VII: (1) discrimination, (2) hostile work environment, and
(3)

retaliation,

all

connected

to

her

race.

In

her

race

discrimination claim, she alleges that she was terminated because
of her race and was replaced by a Caucasian employee. In her
hostile work environment claim, she alleges that the UAB work
environment was racially hostile and negatively affected the terms,
conditions, and privileges of her employment. In her retaliation
claim, she alleges that she was terminated in retaliation for
reporting the racial harassment and discrimination. (Doc. 1 at 5-6,
¶ 33).
On May 12, 2015, pursuant to the court’s authority to order
dismissal under Fed. R. Civ. P. 12(b)(6) sua sponte in appropriate
circumstances, the court notified the parties of what it perceived

2

to be a jurisdictional problem and gave them an opportunity to
respond. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057
(11th Cir. 2007). The court ordered Donald to show cause why she
should not be required either to dismiss her retaliation claim or
to dismiss her other claims and amend her retaliation claim to
allege that retaliation was the “but-for” cause for the adverse
employment action she complains of. Both parties have responded to
the court’s order.
DISCUSSION
In University of Texas Southwestern Medical Center v. Nassar,
the Supreme Court held that “Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the
challenged

employment

(emphasis

added).

action.”

“This

133

requires

S.

Ct.

proof

2517,
that

2528
the

(2013)

unlawful

retaliation would not have occurred in the absence of the alleged
wrongful action . . . .” Id. at 2533. This court has consistently
interpreted this requirement to mean that “[i]f a plaintiff wants
to pursue a retaliation claim she must in her complaint ‘indicate
that retaliation was the “only,” or “but-for” motive for her
termination [and] must make it perfectly clear in her pleading that
there are

no

proscribed

motivations

other

than

an

intent

to

retaliate.’” Savage v. Secure First Credit Union, No. 2:14-cv-2468WMA, 2015 WL 2169135, at *3 (N.D. Ala. May 8, 2015) (quoting
Montgomery v. Bd. of Trs. of the Univ. of Ala., No. 2:12-cv-21483

WMA, 2015 WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015)); see also
Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271-72
(N.D. Ala. 2009) (ADEA); Dixon v. Birmingham, Ala., No. 2:13-cv404-WMA, 2015 WL 353162, at *1 (N.D. Ala. Jan. 27, 2015) (ADA).
This court does not back away from what it said in Savage. This
opinion is not only consistent with but lends further support to
the Savage opinion.
Donald makes two arguments in support of her position that
none of her claims should be dismissed. She first contends that her
race discrimination and retaliation claims may co-exist, citing
Burrage v. United States, 134 S. Ct. 881 (2014), which this court
discussed at some length in Savage, 2015 WL 2169135, at *1-2. In
Burrage, the Supreme Court dealt with the causation requirement in
a criminal statute, but the Court, after finding the statute’s
plain meaning to require actual cause, applied the Nassar “but-for”
standard in

order

to

determine

the

parameters

of

the

actual

causation requirement. In elaborating upon the meaning of but-for
causation, the Court said:
Thus, “where A shoots B, who is hit and dies, we can say
that A [actually] caused B's death, since but for A's
conduct B would not have died.” The same conclusion
follows if the predicate act combines with other factors
to produce the result, so long as the other factors alone
would not have done so—if, so to speak, it was the straw
that broke the camel's back. Thus, if poison is
administered to a man debilitated by multiple diseases,
it is a but-for cause of his death even if those diseases
played a part in his demise, so long as, without the
incremental effect of the poison, he would have lived.
4

Id. at 888 (internal citations omitted).
From this language, Donald argues that her claims of race
discrimination and retaliation are not mutually exclusive and can
proceed in tandem, because the Supreme Court recognized that a
cause can combine with underlying sub-factors and still be deemed
the “but-for” cause. Donald reads these examples incorrectly. This
becomes clear by looking at the context in which the Court was
speaking.

In

Burrage,

the

defendant

was

convicted

under

the

Controlled Substances Act for selling heroin to the victim. After
ingesting the heroin, the victim died, triggering the inquiry at
sentencing about enhancement, but no one could testify as to
whether the heroin actually caused the victim’s death or whether
his death resulted from any of a number of other drugs in his
system. Id. at 885-86. In discussing causation, the Supreme Court
was principally concerned with whether the one drug — heroin — was
the but-for cause of the victim’s death. The point the Court was
making is that, in each of these examples, there is only one butfor cause although other drugs or diseases could in some sense be
considered

actual

causes,

since

all

may

have

played

some

incremental part in causing the bad result. The Court only pointed
to the straw that broke the camel’s back, namely, the poison that
was the single but-for cause of the death. Contrary to Donald’s
position, the Court was not making some larger point about the
interplay and sufficiency of the various other factors. This court

5

cannot divine from Burrage the meaning Donald would give it.
The intent of the Supreme Court is made even more clear by
what it said in the next paragraph of the Burrage opinion:
Consider a baseball game in which the visiting team's
leadoff batter hits a home run in the top of the first
inning. If the visiting team goes on to win by a score of
1 to 0, every person competent in the English language
and familiar with the American pastime would agree that
the victory resulted from the home run. This is so
because it is natural to say that one event is the
outcome or consequence of another when the former would
not have occurred but for the latter. It is beside the
point that the victory also resulted from a host of other
necessary causes, such as skillful pitching, the coach's
decision to put the leadoff batter in the lineup, and the
league's decision to schedule the game. By contrast, it
makes little sense to say that an event resulted from or
was the outcome of some earlier action if the action
merely played a nonessential contributing role in
producing the event. If the visiting team wound up
winning 5 to 2 rather than 1 to 0, one would be surprised
to read in the sports page that the victory resulted from
the leadoff batter's early, non-dispositive home run.
Id. at 888. Just as with the earlier examples, the Court’s concern
was with determining which of the acts is the but-for cause of the
result — in this instance, whether the leadoff home run is the butfor cause of victory. The operative word is “the,” which is a
modifier for a single subject. Justice Scalia recognized that other
factors arguably can be thought of as but-for causes, because
without all of them the visiting team would not have won, but he
pointed only to the leadoff home run as the single or but-for cause
of victory. When considered with the previous examples, it is clear
that the Court’s intent was to provide examples of what is and what
is not a but-for cause. It was not to make an entirely separate
6

point about the possible co-existence of the but-for cause and
lesser theoretical causes. This court finds Donald’s position
untenable.
Justice Ginsburg’s concurrence in the judgment in Burrage
highlights

Donald’s

mistake.

Justices

Ginsburg

and

Sotomayor

declined to join the Burrage majority precisely because they “do
not read ‘because of’ in the context of antidiscrimination laws to
mean ‘solely because of.’” Id. at 892 (Ginsburg, J., concurring in
the judgment). If, as Donald reads Burrage, the majority opinion
allows for multiple causes to exist under the Court’s but-for
standard, Justices Ginsburg and Sotomayor would not have had any
reason to refuse to join the majority. They understood, as this
court does, what the words “but for” mean.
This conclusion is further bolstered by the Supreme Court’s
description of the but-for standard in Gross v. FBL Financial
Services, Inc., 557 U.S. 167 (2009). In Gross, the Court held:
“[T]he ordinary meaning of the ADEA's requirement that an employer
took adverse action ‘because of’ age is that age was the ‘reason’
that the employer decided to act.” Id. at 176 (emphasis added). The
Eleventh Circuit has elaborated this standard: “Because an ADEA
plaintiff must establish ‘but for’ causality, no ‘same decision’
affirmative defense can exist: the employer either acted ‘because
of’ the plaintiff's age or it did not.” Mora v. Jackson Mem’l
Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). As this court
7

stated in Savage: “In other words, there can, in theory and in
logic, be only one ‘but-for’ cause. The days of bushel-basket,
mixed motivation are over if a plaintiff wants to claim retaliation
. . . .” 2015 WL 2169135, at *3. If Donald wants to pursue mixedmotive claims of discrimination that include a claim or claims that
can only be pursued if the proscribed motive is the “but for”
cause, she needs to go to Congress like Lilly Ledbetter did and not
depend on lower courts to straighten out the Supreme Court.
The court recognizes that other courts have disagreed with
this court’s interpretation of Nassar, based on at least one ground
not raised by plaintiff in this case. Donald makes no contention
that the Federal Rules of Civil Procedure allow her to plead
inconsistent theories. This court is in the process of drafting an
opinion in another case, Thomas v. Kamtek, Inc., No. 2:14-cv-844WMA, in which it will address this argument. Also, the Fourth
Circuit has recently found that Nassar is inapplicable to claims
brought under the McDonnell-Douglas framework. That court concludes
that Nassar is inconsistent with the requirements of the prima
facie stage and a but-for standard is already incorporated at the
pretext stage. Foster v. Univ. of Md.-E. Shore, –- F.3d –-, 2015 WL
2405266 (4th Cir. May 21, 2015). According to the Fourth Circuit,
Nassar is only applicable to Title VII retaliation claims in cases
in which the plaintiff elects to proceed by presenting direct
evidence of retaliation. Id. at *4-*6.
8

This court respectfully but strongly disagrees with the Fourth
Circuit and

will

adhere

to

its

belief

that

Nassar’s

but-for

causation requirement applies “both ultimately and at the prima
facie stage.” Montgomery, 2015 WL 1893471, at *4; see also Gautney
v. Tenn. Valley Auth. Bd. of Dirs., 9 F. Supp. 3d 1245, 1253 (N.D.
Ala. 2014); Lanier v. Bd. of Trs. of the Univ. of Ala., No. 2:12cv-3820-WMA, 2014 WL 657541, at *5 (N.D. Ala. Feb. 20, 2014). A
“but-for” cause can be made out using circumstantial evidence. Many
other

courts

have

applied

Nassar

to

the

causal

connection

requirement of the McDonnell-Douglas prima facie case. See, e.g.,
E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir.
2015); Musolf v. J.C. Penney Co., 773 F.3d 916, 919 (8th Cir.
2014); Verma v. Univ. of Penn., 533 F. App’x 115, 119 (3d Cir.
2013); Conner v. Ass’n of Flight Attendants-CWA, No. 13-2464, 2014
WL 6973298, at *3 (E.D. Pa. Dec. 10, 2014); Lindquist v. Tanner,
No. 2:11-3181-RMG, 2013 WL 4441946, at *5 (D.S.C. Aug. 15, 2013).
This court does not comprehend the Fourth Circuit’s contention
that applying Nassar’s but-for causation requirement to the prima
facie case would “be tantamount to eliminating the McDonnellDouglas framework.” Foster, 2015 WL 2405266, at *5. This makes no
sense. Plaintiffs have long been able to prove their cases using
that framework. The court sees no reason why Nassar’s heightened
causation standard would somehow eliminate the burden-shifting
standard if applied at the prima facie stage. Nassar does in fact
9

make proving retaliation claims more difficult, but this was the
Court’s

explicit

intent

—

it

was

concerned

that

“claims

of

retaliation are being made with ever-increasing frequency,” and the
Court thereupon found that reducing such claims will “have central
importance to the fair and responsible allocation of resources in
the judicial and litigation systems,” Nassar, 133 S. Ct. at 2531.
There is nothing incongruous or illogical, then, in requiring
plaintiffs to meet the causation requirement either at the outset
(through the prima facie case) or not at all. In fact, such a
result furthers the aims the Nassar Court sought to achieve.
The Fourth Circuit’s holding that Nassar only applies to
claims brought under the direct evidence method, which the Fourth
Circuit acknowledged

to be “the rare case,” Foster, 2015 WL

2405266, at *4 n.6, is completely contrary to the holding and
intent of Nassar. Accordingly, Donald’s first argument, that her
race discrimination and retaliation claims may co-exist, fails, and
her retaliation claim is subject to dismissal unless she wants to
pursue it as the but-for cause of her termination.
Donald’s argument with respect to her hostile work environment
claim

is

well-taken.

Her

hostile

work

environment

claim

is

actionable without the environment having led to disciplinary
action. It is an entirely separate proscribed adverse employment
action. See Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245
(11th Cir. 2004). It does not conflict with the retaliation claim.

10

Donald, therefore, need not dismiss her hostile work environment
claim, and it will survive the implicit Rule 12(b)(6) challenge.
CONCLUSION
For the reasons stated above, Donald’s retaliation claim will
be dismissed unless, by July 6, 2015, she amends her retaliation
claim

to

allege

but-for

causation

and

dismisses

her

race

discrimination claim.
DONE this 29th day of June, 2015.

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

11