The Fourth Circuit Court of Appeals recently reiterated its "different decisionmaker" exception for a Title VII sex discrimination plaintiff in Lettieri v. Equant, Inc., 2007 WL 641813 (4th Cir. 2007). The Fourth Circuit originally enunciated its "different decisionmaker" exception, which completely excuses a plaintiff from showing that her position was filled by someone who was not a member of the protected class, in Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005). The Lettieri Court also found that a causal connection existed between the protected activity and the asserted adverse action, even though a seven month lapse existed between the protected activity and the adverse action.
In Lettieri, when the plaintiff interviewed for a new position following a merger and reorganization of her unit, she was asked about her personal household obligations. Eventually, the position was filled by a male who did not have family responsibilities. Following the decision to hire the male, the interviewer left his employment with Equant. The male who was offered the position became the plaintiff's supervisor. Thereafter, plaintiff complained to the HR Department about a hostile work environment.
Shortly after this complaint, plaintiff's job responsibilities were reassigned to her male supervisor and plaintiff was discharged as a part of a layoff. Prior to her discharge, plaintiff alleges she was harassed and ridiculed. Following plaintiff's discharge, her male supervisor was forced to resign. Another person (male) was hired to fill this vacated position. Plaintiff sued alleging sex discrimination and retaliation.
To establish a Title VII sex discrimination claim, a plaintiff must set out a prima facie case according to the "burden shifting" or "pretext" method of proof laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A prima facie case requires the plaintiff to show that (1) she is a member of the protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc).
The district court found that the plaintiff established the first three elements of the prima facie case but failed to show that she was replaced by someone outside of her protected class. The rationale of the district court was that "a completely different management team hired [her replacement] [and] the subsequent action by these different decision-makers cannot be imputed back [to those who fired] Lettieri." Lettieri v. Equant, Inc., 367 F.Supp.2d 958, 965 (E.D. Va. 2005).
The Fourth Circuit relied on its decision in Miles to completely excuse a Title VII plaintiff from establishing the fourth element of her prima facie case and allowed the plaintiff to carry her burden "even though one manager fired her and another hired her…replacement." Lettieri, 2007 WL at * 6. Essentially, the "different decisionmaker" exception relieves the plaintiff from the burden of showing that her former position was filled by someone who was not a member of the protected class.
The Fourth Circuit did recognize that "the second individual's hiring decision has no probative value whatsoever as to whether the first individual's firing decision was motivated by the plaintiff's protected status." Id. at *6 (citing Miles, 429 F.3d at 489). However, the Court found that a reasonable solution was to allow the plaintiff to assert her prima facie case without having to prove the fourth element - that she was replaced by someone outside her protected class. Id. at *5.
To establish a claim under Title VII of retaliation, the plaintiff must assert in her prima facie case that (1) she engaged in protected activity; (2) the employer took adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir. 2001).
Generally, to show a causal connection between the protected activity and the adverse action, to satisfy the prima facie case the plaintiff must normally show that the two events are closely related in time. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). However, if the plaintiff cannot establish temporal proximity, she may nevertheless meet the third element of her prima facie case by proffering evidence of retaliatory conduct and animus between her protected conduct and the adverse employment action. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). This plaintiff was able to do.