An Onerous Burden: the Impact of Nassar Upon Mcdonnell Douglas in the Eleventh Circuit
| Publication year | 2016 |
An Onerous Burden: The Impact of Nassar Upon McDonnell Douglas in the Eleventh Circuit
Alec Chappell
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Following a flood of employment discrimination and retaliation cases, the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar1 announced that an employee alleging retaliation must prove that the employer's motive to retaliate constituted a "but for" cause of the actions adverse to the employee.2 In addition to creating an awkward and unprecedented union of employment law and traditional tort principles of causation,3 this decision upended the conventional application of the framework set forth in McDonnell Douglas Corp. v. Green4 and left the lower courts to pick up the pieces.
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Pursuant to the McDonnell Douglas framework, a retaliation claim requires the plaintiff-employee who lacks direct evidence of retaliation to establish that: she engaged in a protected activity, the defendant-employer took an action adverse to her, such as termination of her employment, and that a causal connection existed between the protected activity and the adverse action.5 After the plaintiff establishes these three elements of her prima facie case, the defendant is afforded an opportunity to offer a legitimate reason for its adverse action against the plaintiff, at which point the burden again shifts to the plaintiff to show that the adverse action was merely pretextual and that the defendant's retaliatory motive was the real reason for the action.6 However, because the Supreme Court in Nassar did not explain the impact of its holding upon the McDonnell Douglas framework, a circuit split has developed as to whether the plaintiff must prove "but for" causation as part of the prima facie stage or, ultimately, in the pretext stage.7
This Comment explores the responses to Nassar by the federal courts. After a brief survey of the holdings of the circuit courts of appeal, this Comment traces a development peculiar to the United States Court of Appeals for the Eleventh Circuit, which initially indicated that the burden properly belongs in the pretext stage. Subsequently, the Eleventh Circuit inexplicably reversed itself and now uniformly places the burden in the prima facie stage. Moreover, this pattern has almost exclusively unfolded in unpublished opinions, as federal courts, with a few exceptions, have demonstrated a curious reluctance to address the reasoning behind their decisions on this issue. After examining the best arguments put forward for each position, this Comment investigates the policy considerations underlying the debate and concludes that the Supreme Court should ultimately resolve the circuit split by requiring proof of causation in the pretext stage to effect the original purpose of McDonnell Douglas.
A. McDonnell Douglas Framework
Title VII of the Civil Rights Act of 19648 prohibits employers from discriminating against their employees on the bases of race, color,
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religion, sex, or national origin.9 Likewise, Title VII forbids employer discrimination against employees who oppose practices made unlawful by Subchapter VI or for making or participating in a charge or proceeding under the subchapter.10
When alleging retaliation in violation of Section 2000-e(3)(a), a plaintiff may proceed either by providing direct evidence of the employer's retaliatory motive or by following the analytical framework set forth in McDonnell Douglas Corp. v. Green11 and modified in Texas Department of Community Affairs v. Burdine.12 Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case of retaliation by showing that "(1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action."13 If the plaintiff successfully establishes the elements of the prima facie case, the defendant bears the burden of producing evidence sufficient to "articulat[e] a legitimate, non-discriminatory reason for the adverse employment action."14 If the defendant meets that burden, thereby rebutting the plaintiff's prima facie case, the burden shifts back to the plaintiff to show "that the defendant's proffered reason was merely a pretext to mask discriminatory actions."15
Pursuant to the McDonnell Douglas framework, a plaintiff may prove her prima facie case and show the pretextuality of the employer's proffered reason by putting on different kinds of evidence. In the Eleventh Circuit, for example, the plaintiff may rely on close temporal proximity between the protected activity and the subsequent adverse action to demonstrate causation at the prima facie stage.16 Although the Eleventh Circuit has not defined the precise contours of "close temporal proximity," it has held that the two events must be very close in sequence; while a two-month gap between the protected activity and the adverse action may be sufficient, a three-month gap is not because the events are too attenuated in time.17 However, where the temporal gap is too large for the plaintiff to demonstrate proximity in time, the plaintiff may nevertheless overcome the deficiency by showing that the
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employer retaliated at the earliest available opportunity.18 Likewise, the plaintiff may also surmount a significant temporal gap by providing evidence of a "pattern of antagonism" on the part of the employer.19
At the pretext stage, the plaintiff must rebut each of the defendant's proffered legitimate reasons for its adverse action.20 To do so, the plaintiff must show that each ostensibly legitimate reason was, in fact, pretextual and the defendant's retaliatory animus constituted the real reason for the adverse action.21 At the pretext stage, the plaintiff may no longer rely on temporal proximity alone to rebut the defendant's proffered reasons.22 However, temporal proximity may constitute some evidence of pretext.23 Additionally, a plaintiff may demonstrate pretext by pointing to the "employer's failure to articulate clearly and consistently the reason for [the] employee's discharge."24 Likewise, the "employer's deviation from its own standard procedures" may indicate that its putative reason was merely a post-hoc ruse adopted solely for purposes of litigation, allowing the plaintiff to carry her burden at the pretext stage.25
Although federal courts had addressed the kinds of evidence sufficient for the plaintiff to present a prima facie case and to establish that the defendant's proffered reason was pretextual, no uniform standard of causation governed retaliation cases. To prove causation in a status-based discrimination claim pursuant to Section 2000-e(2)(a), a plaintiff need only establish that one of the employer's motives was discriminatory; this rule is referred to as the "motivating factor" test.26 Although the McDonnell Douglas framework similarly requires that the plaintiff in a retaliation claim establish the element of causation, McDonnell Douglas and its progeny left unclear whether the plaintiff must merely prove "motivating-factor" causation or meet some higher standard of causation. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court of the United States announced that the plaintiff in a Title VII retaliation case must prove causation according to traditional tort principles of "but for" causation.27
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B. Nassar
In Nassar, the plaintiff, a physician of Middle Eastern descent, worked at the University of Texas Southwestern Medical Center and Parkland Memorial Hospital. He alleged that his supervisor displayed her bias against his religion and ethnicity through such comments as "Middle Easterners are lazy."28 The plaintiff eventually resigned from his position at the University due to the alleged harassment, and he informed the Chair of Internal Medicine of his supervisor's behavior in a letter. Subsequently, the Chair told the Hospital to withdraw its offer of a staff physician job to the plaintiff, resulting in plaintiff's suit for discrimination and retaliation in violation of Title VII.29 After the jury found for the plaintiff on both claims, the United States Court of Appeals for the Fifth Circuit affirmed the retaliation award, holding that claims of retaliation require the plaintiff to prove only "motivating factor" causation.30
Noting that traditional tort principles of causation require the plaintiff to establish that the harm would not have taken place "but for" the defendant's actions, the Supreme Court observed that these rules must be assumed to have been incorporated into Title VII by Congress.31 The Court then discussed its prior decision in Price Waterhouse v. Hopkins,32 wherein a plurality held that a plaintiff in a status-discrimination Title VII case must show that her status was a motivating or substantial factor in the adverse employment action, while the employer could defeat the claim by demonstrating that its discriminatory motive was not a "but for" cause of its action against the employee.33
Subsequent to Price Waterhouse, the Court in Gross v. FBL Financial Services, Inc.,34 interpreted the phrase "because of . . . age" in the Age Discrimination in Employment Act (ADEA)35 to require "but for" causation.36 Given the similar language in Title VII's anti-retaliation provision, the Court concluded that the motive to retaliate must be a "but for" cause of the adverse employment action in a Title VII
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retaliation case.37 Both the plaintiff and the United States, as amicus curiae, opposed this reading of the statute on the basis that retaliation is defined by the statute as unlawful employment conduct and that such conduct is prohibited by Section 2000e-2(m),38 which requires the plaintiff to meet only the "motivating factor" test.39 However, the Court...
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