In Carvalho-Grevious v. Delaware State University, No. 15-3521 (March 21, 2017), the Third Circuit Court of Appeals addressed an important evidentiary question: What evidence must a plaintiff adduce as part of a prima facie case of retaliation to survive a motion for summary judgment? The court held that a plaintiff alleging retaliation has a lesser burden at this stage, namely to produce sufficient evidence to raise the inference that the protected activity was the “likely reason” for the adverse employment decision. In so holding, the Third Circuit parted ways with the Sixth and Tenth Circuits, which have held that—even at the prima facie stage—a plaintiff must demonstrate that “but for” the protected activity, the challenged employment decision would not have been made.
Dr. Millicent Carvalho-Grevious was hired by Delaware State University in August of 2010 as an associate professor and chair of the Department of Social Work. Although her contract provided that she could be reappointed, her term in each of these positions was set to end on June 30, 2011. As department chair, Dr. Grevious was responsible for facilitating the university’s efforts to obtain reaccreditation for the social work program. In addition, Dr. Grevious had overall responsibility for managing the department and supervising the staff, which consisted of nine individuals at the start of her tenure.
Dr. Grevious faced difficulty with the reaccreditation process from the outset of her employment, and early in her term, she made personnel changes that led to the filing of complaints by some of the affected individuals. In addition, Dr. Grevious’s relationship with her supervisor, the then-interim dean of the College of Education, Health and Public Policy, deteriorated, and by January of 2011, she voiced her dissatisfaction with his leadership to the university’s provost and complained that he had made racially discriminatory statements and engaged in behavior that she regarded as sexist. The following month, Dr. Grevious contested the dean’s unfavorable evaluation of her performance, and although the dean responded by amending the evaluation in part, the revised evaluation still reflected negatively on her leadership abilities. Dr. Grevious encountered another setback when the faculty voted to appoint a different individual as department chair effective June 30, 2011.
In March of 2011, Dr. Grevious filed a grievance with the provost in which she complained about the dean’s alleged sexual harassment and asserted that he had engaged in retaliation by furnishing a negative performance evaluation after she complained. The university responded that its investigation did not substantiate any policy violations and thus no further action was necessary. Dissatisfied with that outcome, Dr. Grevious filed a formal complaint with the university’s human resources department on April 14, 2011. On the same day, the university received notification that its request for postponement of the reaccreditation deadline was denied. After the university informed her that it intended to transition her duties as chair of the department to her successor approximately seven weeks earlier than initially announced (but would continue to pay her the salary associated with that position through the end of her the term, as stated in her contract), she filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) on May 20, 2011.
On June 21, 2011, the university notified Dr. Grevious that it would issue a terminal contract to her for the position of associate professor for the 2011–2012 academic year in place of the renewable contract that it had offered to her on April 1, 2011. In a second EEOC charge, Dr. Grevious contended that this decision was made in retaliation for the filing of the initial charge. She eventually filed a third EEOC charge in 2012, after the university decided not to reappoint her for the 2012–2013 academic year based upon her strained relationship with her colleagues. In the final charge, Dr. Grevious complained that her employment as associate professor had been terminated in retaliation for filing the two prior EEOC charges.
Dr. Grevious then instituted a lawsuit in the U.S. District Court for the District of Delaware. The university, along with the dean and the provost, moved for summary judgment on Dr. Grevious’s claims that the adverse employment actions violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981. The district court concluded that no reasonable jury could find that Dr. Grevious would have been retained as chair of the department or kept her renewable contract but for her complaints, and held that summary judgment was therefore warranted because Dr. Grevious could not establish the causation element of her prima facie case. The court also ruled that Dr. Grevious did not establish that the provost’s non-retaliatory explanation for the issuance of a terminal contract was pretextual.
The Third Circuit’s Decision
The Third Circuit reversed the lower court’s decision in part. The appellate court disagreed that a plaintiff alleging retaliation in violation of Title VII or Section 1981 must demonstrate that retaliatory animus was the “but for” cause of the challenged employment action at the prima facie stage. Instead it held that at the prima facie stage, a plaintiff need only produce enough evidence to justify an inference that the protected activity was the “likely reason” for the adverse employment action. The Third Circuit reasoned that any other rule would eliminate the McDonnell Douglas burden shifting framework in retaliation cases.
Turning to Dr. Grevious’s allegation that she was ousted as the department chair in retaliation for filing complaints, the court held that in light of the undisputed evidence that the department’s efforts to obtain reaccreditation faltered under her leadership, no reasonable juror could conclude that Dr. Grevious’s April 14, 2011 human resources complaint against the dean was the reason for the university’s decision not to renew her term as chair of the department. Acknowledging that only a short period elapsed between the filing of the first EEOC complaint and the university’s notification that Dr. Grievous would be relieved of her duties as chair of the department prior to the expiration of her contract, the court concluded based upon a “context specific” analysis that the temporal proximity was not sufficient to meet her burden. And even if Dr. Grevious could establish causation, she had not created any doubt about the legitimacy of the university’s decision to change direction in the limited time before expiration of the deadline for reaccreditation, which the university had unsuccessfully attempted to extend.
Although affirming the district court on the chairperson claim, the Third Circuit held that application of the “likely reason” standard at the summary judgment stage required that Dr. Grevious be allowed to proceed to trial on the claim that the decision to discharge her from the assistant professor position was retaliatory. The court found it noteworthy that the complaints about Dr. Grevious started soon after she was hired but the university nonetheless initially recommended issuance of a renewable contract and only later decided to offer her a terminal contract instead. The Third Circuit held that the defendants met their burden of production by pointing out that the initial offer of a renewable contract was not final and identifying Dr. Grevious’s inability to work with others as the rationale, but concluded that Dr. Grevious had identified sufficient weaknesses in the university’s explanation, including its failure to follow its practice of placing a faculty member on a professional improvement plan and allowing the faculty member to meet with a vice president before making a final decision.
Turning to Dr. Grevious’s claims against the dean, the Third Circuit agreed that dismissal was proper based upon the record that demonstrated that the dean’s animus predated any protected activity and that his negative evaluation did not have any demonstrated impact on the decision to issue a terminal contract rather than a renewable one.
The decision of the Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), which held that Title VII retaliation claims must be evaluated using a ‘but for’ causation standard, rather than a mixed motive standard, was widely understood to constitute a victory for employers facing retaliation claims. Although the rule announced in Nassar makes it more difficult for a plaintiff to prevail at trial, the decision in Carvalho-Grevious could make it easier for plaintiffs asserting retaliation claims to survive motions for summary judgment in the Third Circuit (which covers Delaware, Pennsylvania, New Jersey, and the U.S. Virgin Islands). Interestingly, the first court within the circuit to apply the “likely reason” standard concluded that summary judgment in the employer’s favor was warranted. Horvath v. Urban Redevelopment Authority of Pittsburgh, No. 15-668 (W.D. Pa. Mar. 29, 2017).
It is too soon to conclude that this new standard will bring no noticeable change in the frequency with which employers defending retaliation claims prevail at the summary judgment stage. Given the possibility that it may now become more challenging to secure judgment prior to trial in such cases, Carvalho-Grevious provides yet another reminder of the importance of adhering to existing procedures when deciding whether to terminate, or otherwise alter in a materially adverse manner, the terms of an individual’s employment. Failure to comply with internal protocols or document the performance-based reasons for an employment decision with timely evaluations or properly conducted investigations could lead to greater difficulty in defending decisions at the summary judgment stage given the reduced quantum of proof that plaintiffs in the Third Circuit must now offer to establish a prima facie case.