Nassar’s “But For” Requirement Breaks the Chain for Retaliation Plaintiffs Relying on Temporal Proximity to Establish Causation

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In a decision in favor of the University of Pennsylvania entered on August 7, 2013, the Third Circuit Court of Appeals reviewed the “but for” standard for liability under University of Texas Southwestern Medical Center v. Nassar and provided a roadmap for employers accused of retaliation to defeat the inference of causation that can arise from temporal proximity between protected activity and adverse employment action. To establish a prima facie case of retaliation under § 704(a) of Title VII of the Civil Rights Act of 1964, a plaintiff must demonstrate that (1) he or she engaged in activity protected by Title VII; (2) he or she suffered an adverse employment action after or contemporaneously with the protected conduct; and (3) there was a causal connection between participation in the protected activity and the adverse employment action. Direct evidence of retaliation can be hard to come by, and in its absence, plaintiffs have relied on circumstantial evidence—primarily temporal proximity—to satisfy the third prong and establish causation. Pre-Nassar, in Clark County School District v. Breeden, the Supreme Court of the United States held that, alone, very close temporal proximity between protected activity and adverse employment action could satisfy the “causal link” element of a prima facie retaliation claim. If an adverse employment action occurred close in time after an employer learned of an employee’s protected activity, the closeness between the two events could constitute evidence of a causal connection. Nassar imposed a more employer-friendly “but for” standard for causation, and in Verma v. University of Pennsylvania, No. 12-2799, the Third Circuit applied it to affirm a district court decision granting summary judgment in favor of an employer. 

Sandhya Verma was a former university employee who alleged that she had been fired after filing an internal complaint alleging discrimination and unfair treatment and telling her supervisor that she was going to file a charge with the Equal Employment Opportunity Commission. The university’s human resources department and Office of Affirmative Action investigated the complaint and concluded that there was no discrimination. Verma was fired a few months later and filed a lawsuit under Title VII, alleging in part that she had been fired in retaliation for having engaged in protected activity. She argued that causation should be inferred from the temporal proximity between her October 2007 discrimination complaint and her March 2008 termination. The federal district court granted summary judgment in favor of the university, and Verma appealed.

Faced with a plaintiff who was relying on temporal proximity to establish causation, citing Nassar, the Third Circuit first stated that, as to the third prong (causation), a plaintiff claiming retaliation under Title VII “must establish that his or her protected activity was a ‘but for’ cause of the alleged adverse action by the employer.” The court then stated that the plaintiff had a well-documented, negative performance history that had begun long before she initiated her internal complaint and included negative performance reviews, a “long and well-documented history” of arguing with supervisors and refusing to perform assigned tasks, ongoing conflicts with co-workers, and repeated insubordination. In light of this record, the court stated, under Nassar, temporal proximity between the plaintiff’s protected activity and the university’s adverse employment action could not satisfy the “but for” causation requirement.

Because her negative employment history predated her protected activity, the court declined to infer causation. Finding that she had presented no direct evidence demonstrating that her protected activity was the “but for” cause of her termination, the court ruled that Verma could not rely upon an inference of causation and affirmed summary judgment in the university’s favor.

Lessons Learned

Nassar’s “but for” requirement is employer-friendly, but makes it even more important for employee performance reviews and evaluations to accurately reflect job performance and for employers to maintain accurate—and retrievable—records of employee counseling, performance improvement plans, and progressive discipline. However close in time protected conduct may be with an adverse employment action, an employee’s claim of retaliation can be handily defeated by an employer’s assertion of Nassar’s “but for” requirement in concert with proof of inadequate job performance predating the protected activity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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