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Fourth Circuit Keeps Police Officer’s Retaliation Claim Alive

By Katherine Tracy

In 2013, the United States Supreme Court decided the case of University Of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517. In a 5-4 opinion, the Court held that retaliation claims under Title VII are subject to the higher standard of proof for age discrimination claims, rather than the lower standard applicable to Title VII discrimination claims. The Court’s opinion handed a “win” to employers, so to speak, holding Title VII retaliation claims must be proved according to traditional principles of “but-for” causation. In other words, the plaintiff had to prove that the decision (e.g. termination) would not have been made without the improper motive.

A decision out of the Fourth Circuit on May 21, 2015 (Foster v. Univ. of Md.-E. Shore), however, limited application of the Nassar case to Title VII retaliation claims based on direct evidence. The Fourth Circuit recognized that “the Nassar Court was silent as to the application of but-for causation in McDonnell Douglas pretext cases.” While “Nassar significantly altered the causation standard for claims based on direct evidence of retaliatory animus by rejecting the ‘mixed motive’ theory of liability for retaliation claims,” it “did not alter the McDonnell Douglas analysis for retaliation claims.”

The Foster Court concluded, “that the McDonnell Douglas framework, which already incorporates a but-for causation analysis, provides the appropriate standard for reviewing Foster’s claim.” Accordingly, it concluded that the causation prong of a plaintiff’s prima facie case (or initial showing of retaliation) remained the same after the Nassar decision and does not require proof of “but-for” causation.

The Fourth Circuit’s opinion conflicts with other circuits like, for example, the Tenth Circuit – the Court of Appeals that hears Kansas federal cases – which have held that evidence of “but-for” causation must be shown at the initial stage of the retaliation claim. Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014). The disagreement among the Circuits makes the issue ripe for the Supreme Court to take up the issue given the opportunity.

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