In 2013, the Supreme Court of the United States held that plaintiffs claiming retaliation under Title VII must prove that “but for” the retaliation they would not have been discharged. University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013). Many had wondered if that decision would change what a disgruntled employee must prove in order to recover on a federal discrimination claim. On May 21, 2015, the Fourth Circuit Court of Appeals decided that, at least for the states it oversees (Maryland, North Carolina, South Carolina, Virginia and West Virginia) it does not. In Foster v. Univ. of Maryland Eastern Shore, No. 14-1073 the Court determined that the McDonnell Douglas framework it has used for years has always required a plaintiff to prove that an employer’s discriminatory animus was the “but for” cause of retaliation.
 
The plaintiff in Foster had asserted claims for hostile work environment, discriminatory termination based on gender, and retaliatory discharge against her former employer, the University of Maryland Eastern Shore. The district court originally granted summary judgment to the University on plaintiff’s claims of hostile work environment and discrimination, but denied summary judgment on the retaliatory discharge claim. Following the Supreme Court’s decision in Nassar, the University filed a motion for reconsideration of the denial of summary judgment on the retaliation claim. The district court granted the motion and awarded summary judgment to the University on plaintiff’s retaliation claim, relying entirely on Nassar. This appeal to the Fourth Circuit followed.
 
In Nassar, the Supreme Court held that a plaintiff asserting a claim for retaliation under Title VII must rely upon “traditional principles of but-for causation” to prove that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Since the ruling in Nassar, appellate courts have been called upon to determine how Nassar applies when a plaintiff relies upon the traditional McDonnell Douglas framework to establish a prima facie case for retaliation under Title VII.  
 
According to the court in Foster, the “McDonnell Douglas framework is a three-step burden shifting framework used by Title VII plaintiffs who lack direct evidence of retaliatory discrimination.” To prevail under this test, a plaintiff must establish a prima facie case of retaliation, which requires proof that:
 

1. the plaintiff engaged in protected activity;
2. the employer took adverse action against her; and
3. there is a causal relationship between the protected activity and the adverse action (the “causation prong”).

 
Once a plaintiff states a prima facie case of retaliation, the burden shifts to the employer to prove that the alleged retaliatory action was based on a legitimate, non-retaliatory reason. At that point, the burden returns to the plaintiff to ultimately prove that the employer’s stated reason for the adverse action was not its true reason, but rather was pretext for discrimination. This requires a plaintiff to prove that the “real reason” for the adverse action was retaliation.
 
Some courts that have already looked at this issue have held Nassar’s “but for” standard should be the causation prong of the plaintiff’s prima facie case while other courts have held that it is improper to require a plaintiff to prove “but for” causation as part of its prima facie case. In Foster, the Fourth Circuit addressed this exact issue and agreed with the later approach, which rejects any requirement that plaintiff prove “but for” causation as part of her prima facie case. According to the Fourth Circuit, to require a plaintiff to prove “but for” causation as part of her prima face case would be “tantamount to eliminating the McDonnell Douglas framework in retaliation cases” because a plaintiff who can prove “but for” causation would have no need to rely upon proof of pretext.
 
The Fourth Circuit (and contrary to some of its sister circuits) stated that Nassar did not alter the plaintiff’s burden of proof under McDonnell Douglas. Rather, “the McDonnell Douglas framework has long demanded proof at the pretext stage that retaliation was a but-for cause of the challenged adverse employment action.” On this basis, the Court held that summary judgment in favor of the University on plaintiff’s retaliation claim was not warranted and remanded the case to the district court.
 
The Impact of Foster in the Fourth Circuit
 
In the short term, we can expect little to change in the Fourth Circuit because, as the Court highlighted, Nassar did not change the standard of proof for a plaintiff to prove a claim of retaliation under Title VII using the burden shifting framework McDonnell Douglas. Longer term, however, it is clear that the various circuits are uncertain how to proceed on this issue and a split among the circuits has now appeared. Because the Supreme Court desires federal law to be uniform, and not variable based on where you live, we expect the Supreme Court to take up this issue and clarify the law sooner rather than later.
 
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