New Summary Judgment Standard for Retaliation Cases

Rarely will an employee have direct evidence of an employer’s unlawful behavior, such as discrimination or retaliation. This is particularly troublesome for employees when the employer files a motion for summary judgment to dismiss the employee’s lawsuit. Recognizing the challenge that employees face at this pretrial stage, courts have established a special burden-shifting standard to give an employee the opportunity to prove unlawful conduct without direct evidence. A recent case has altered this burden-shifting standard, making it slightly easier for employees to get their day in court.

Millicent Carvalho-Grevious v. Delaware State University

Delaware State University (DSU) hired Millicent Carvalho-Grevious in August 2010 as an associate professor and chairperson for the Department of Social Work. The terms of Carvalho-Grevious’s contract provided for her employment only until June 30, 2011, although it was subject to renewal. Carvalho-Grevious’s duties as chairperson included supervising other employees and working to obtain reaccreditation for her department. Carvalho-Grevious’s immediate superior was John Austin, DSU’s Dean. Austin’s own immediate superior was Alston Thompson, Provost and Vice President of Academic Affairs. Carvalho-Grevious did not get along well with many individuals in the department, including Austin. As a result, she complained several times to Thompson. Specifically, she stated that Austin was impeding her ability to obtain reaccreditation, preventing her re-election as chairperson, and making discriminatory comments to her about her race and sex. Over time, Carvalho-Grevious filed complaints with DSU’s human resources office, the Office of the Provost, and the Equal Employment Opportunity Commission (EEOC) on the grounds of discrimination and retaliation. Carvalho-Grevious alleged that she suffered retaliation in the following ways:

After she complained to Thompson about Austin, Austin gave her a negative performance evaluation.
When Carvalho-Grevious was not re-elected as chairperson for her department, she was removed from that position several months before her contract expired.
Carvalho-Grevious’s renewable contract was revoked and replaced with a nonrenewable contract after she filed her first complaint with the EEOC.
When Carvalho-Grevious filed a second complaint with the EEOC, Thompson recommended that she not be reappointed for the following academic year, effectively firing her.

The EEOC investigated Carvalho-Grevious’s claims. The EEOC was unable to reach a settlement between Carvalho-Grevious, DSU, Austin, and Thompson. Carvalho-Grevious subsequently filed suit, claiming that DSU violated Title VII of the Civil Rights Act of 1964 (Title VII) and that Austin and Thompson violated 42 U.S.C. § 1981 when they retaliated against her for her complaints about the race and sex discrimination she faced while working at DSU. The defendants, DSU, Austin, and Thompson, filed a motion for summary judgment, asking the trial court to dismiss Carvalho-Grevious’s allegations. They claimed that Carvalho-Grevious failed to present a prima facie case of retaliation: she failed to prove that “but for” her complaints, she would not have been fired. In other words, the defendants argued that Carvalho-Grevious failed to prove that she was retaliated against because of her complaining and not for some other reason. This but-for legal standard can also be described as the “real reason” standard. In Carvalho-Grevious’s case, the defendants argued that she had not proved that the “real reason” she was retaliated against was because of her discrimination complaints, both at the school and to the EEOC. “Prima facie” refers to the legal concept of proving the basic elements of a claim or cause of action. For example, to make a prima facie case for murder, the prosecutor would have to prove that someone died, among other elements. In Carvalho-Grevious’s case, the trial court granted the defendants’ motion for summary judgment. Carvalho-Grevious appealed that ruling to the U.S. Court of Appeals for the Third Circuit. There, she argued that she should not be required to meet the but-for legal standard in opposing the defendants’ motion for summary judgment but instead should be held to the lower “likely reason” standard. Carvalho-Grevious took the position that during the summary judgment phase, she only needed to prove that her complaints were the likely reason she suffered retaliation, not that they were the actual, or but-for reason.

Retaliation Under Title VII and 42 U.S.C. § 1981

Title VII and 42 U.S.C. § 1981 are both employment discrimination laws. Title VII prohibits both race and sex discrimination, but 42 U.S.C. § 1981 covers race discrimination but not sex discrimination. However, both Title VII and 42 U.S.C. § 1981 prohibit retaliation. In the employment context, retaliation refers to an employer taking an adverse employment action against an employee for the employee’s participation in a protected activity. An adverse employment action is essentially any negative action taken by the employer against the employee. This could include a negative performance evaluation, firing, or demotion. A protected activity is a legally protected right an employee has, such as complaining about illegal discrimination at work. To establish a prima facie claim for retaliation, an employee must prove three elements:

the employee engaged in a protected activity,
the employee suffered an adverse employment action, and
the employee’s participation in the protected activity caused the adverse employment action.

In Carvalho-Grevious’s case, the defendants argued in their motion for summary judgment that she had not satisfied element three: she hadn’t proven that her complaints about discrimination were the but-for cause that led her to suffer retaliation. This but-for legal standard was established by cases from the Supreme Court of the United States. To survive the defendants’ motion for summary judgment, Carvalho-Grevious could rely on the traditional McDonnell Douglas burden-shifting framework.

What Is McDonnell Douglas Burden-Shifting?

Carvalho-Grevious could survive the defendants’ motion for summary judgment and proceed to trial if she could get through three separate stages of the McDonnell Douglas framework. In the first stage, Carvalho-Grevious would bear the burden of establishing a prima facie case of discrimination. If she did this, in the second stage, the burden would shift to the defendants to show that they had a nonretaliatory reason for their employment actions. If the defendants established this nonretaliatory reason, the burden would shift back to Carvalho-Grevious in the third stage, where she would have to show that this offered reason was a lie: a cover story for the real reason she was effectively fired.

How the Carvalho-Grevious Decision Affects Summary Judgment in a Retaliation Case

The primary legal question in Carvalho-Grevious’s appeal was what legal standard should be applied during a motion for summary judgment. According to the defendants, the but-for legal standard applied, as set forth by the Supreme Court. However, Carvalho-Grevious contended that this legal standard only applied at trial, not during a motion for summary judgment. Instead, in the summary judgment stage, she argued that she only needed to prove that her complaints about discrimination were the likely reason she suffered retaliation. The Third Circuit agreed with Carvalho-Grevious. The Third Circuit based its decision on the idea that if the but-for or “real reason” legal standard applied at the motion for summary judgment stage, there would be no need for the McDonnell Douglas burden-shifting framework. Why? Because if an employee could meet the but-for burden in the first stage of the McDonnell Douglas test, that employee would automatically be able to meet the burden at the third stage. Applying the “likely reason” legal standard instead, the Third Circuit still concluded that several of Carvalho-Grevious’s claims had been properly dismissed at the summary judgment stage. However, with respect to her claim that the revocation of her renewable contract constituted retaliation, the Third Circuit found that her claim should have survived summary judgment rather than being dismissed by the trial court. Note that this new summary judgment legal standard for retaliation only applies in states within the Third Circuit’s jurisdiction: Delaware, New Jersey, and Pennsylvania.

Summing It Up

To establish a prima facie claim of retaliation, an employee must show three things: that the employee engaged in a protected activity, that the employee suffered an adverse employment action, and that the employee’s participation in the protected activity caused the adverse employment action.
At trial, the employee must prove the third element using the “but-for” legal standard. In other words, the employee must show that the protected activity was the real reason the employee suffered the adverse employment action.
However, during a motion for summary judgment in Delaware, New Jersey, or Pennsylvania, the but-for legal standard is replaced with the “likely cause” legal standard, which only requires the employee to show that the protected activity was the likely cause of the adverse employment action.