The recent Supreme Court decision in UTSW v. Nassar held that in order to prove a prima facie cause of retaliation under Title VII, a plaintiff is required to prove “but-for” causation, i.e., a plaintiff must show that the retaliation occurred “because of” his or her protected activity. As a result of this holding, the Court has precluded the use of the mixed motive framework for causation. Such a holding comes in opposition with similar frameworks that have been used in other circuits.
A recent court decision involving a retaliation claim by a former collegiate football team manager sheds some light on the impact Nassar may have on future claims.
In the Second Circuit, the Court recently used a “determinative factor” framework in Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013). In Summa, the plaintiff brought suit against Hofstra University for sexual harassment and retaliation in violation of Title VII, 42 USC §§ 2000e-2000-e-17, Title IX, 20 USC §§ 1681-88, and corresponding provisions of the New York State Human Rights Law. Summa, a graduate student at Hofstra, was employed by the University as a team manager for the football, allegedly for both the Fall and Spring seasons (2006 – 2007). As she began her position as team manager, players began making sexual comments about her relationship with her boyfriend, a player on the team, other sexual comments about her and other football players, and comments about her ability to serve as the manager because she was a woman. Other incidents took place that caused Summa to submit a written report, which was investigated by the University.
Summa was not hired as the team manager for the football team during the spring semester; the coach claimed it was because the team had not heard from her about returning during the spring. Summa applied for a graduate assistantship position in the Office of University Relations during the period she was preparing a complaint against the University for unlawful retaliation for her harassment complaints as a result of being replaced as team manager. Summa was offered the position by the Director of Marketing for the office after two interviews, which she accepted. However, after the Director of Human Resources, Miller-Suber, became aware of the complaint Summa was filing, Miller-Suber informed the defendant Vice President of the Office of University Relations, Connolly, that she was required to sign off on the paperwork for the graduate assistantship position for which Summa had been hired and that Connolly had not done so at that point. As a result, Miller-Suber stated that it would be best practice for Connolly to interview anybody who would be working for her office and should interview the graduate assistants.
Connolly, following Miller-Suber’s instructions (particularly, that Connolly should “be sure that all of the candidates working in her office, whether they be full-time employees or graduate assistantships, should be able to represent the University in meetings, represent the University… with external audiences, and be advocates for the University”), believed she was to inquire about graduate assistant’s litigation-related conflicts with the University. Connolly met with Summa, finding that her resume was “imprecise” in the way certain activities or majors were listed, as well containing overstatements as Connolly had received a “lukewarm” recommendation from one of Summa’s references. As a result, Connolly rescinded Summa’s offer of employment.
Summa filed suit six months later, after Miller-Suber had terminated her privilege of student employment because she had double-counted hours; Summa states that she input her hours in that way at the direction of her supervisors. Defendants moved for and were granted summary judgment on all counts, dismissing, among other things, Summa’s three retaliation claims.
While the Court found that summary judgment as to Summa’s discrimination claim, the Court disagreed with the lower court’s finding that she did not meet her burden to prove retaliation. The Court stated that “[w]hile a Title VII plaintiff need not prove that retaliation was the only motivating factor for an adverse action (citation omitted), the plaintiff must show that the retaliation was the determinative factor (citation omitted). In this Circuit, it is ‘settled that a plaintiff in a Title VII action need not disprove a defendant’s proffered rationale for its adverse actions in order to prevail.’” The Court found that plaintiff made a sufficient showing of pretext for the team manager position: she presented evidence of emails that contemplated her stipend for the spring semester as a team manager and evidence that the coach did not know whether the position as actually filled when he denied plaintiff the spring manager position. Similarly, she made a sufficient showing of pretext relating to the graduate assistant position, as she had already been offered the position before being re-interviewed and Miller-Suber encouraged and affirmed Connolly’s decision to rescind plaintiff’s offer, as well as the fact that the email regarding Summa’s meeting with Connolly contained false statements and misrepresentations, failing to indicate her offer was in danger. As a result, the Court found the trial court erred in granting summary judgment to the Defendants as to Summa’s retaliation claims.
In light of the Supreme Court’s holding in UTSW v. Nassar, the Second Circuit, if it had used the “but for” causation framework, may have reached a different result in Summa v. Hofstra University. The lower court found that defendants’ claims that (1) Summa had not contacted the football team to indicate she would continue working as the team manager in the spring semester, which led to her replacement; and (2) Summa’s “imprecision” on her resume was cause to rescind her offer of employment were legitimate non-retaliatory reasons for such actions. The Second Circuit found that the trial court failed to proper consider certain evidence in coming to its decision, however, it still appears that such non-retaliatory claims may serve a bar to Summa’s recovery because it indicates that the improper motive may not have been the only motive for the complained of adverse action.
Summa is just one example of how Nassar may impact retaliation claims. Given that it will be much easier for employers to prevail at summary judgment, it will be interesting to see if the number of EEOC charges based on retaliation begins to diminish over the next few years.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.