The McDonnell Douglas Corp v. Green burden-shifting framework requires a three-step process to adjudicate a motion for summary judgment in a retaliation case. Garcia v. Professional Contract Services, Inc.(5th Cir. 2019). First, the former employee must establish a prima facie case for retaliation — that the employee engaged in a protected activity; the employer knew about the protected activity; and the employee experienced retaliation because of the protected activity. Second, the burden of proof shifts to the employer to express a legitimate reason for the adverse action against the former employee. Third, the former employee must proffer additional evidence to permit a trier of fact to infer that the employer’s motive is a pretext for retaliation.
Does the McDonnell Douglas framework require the “but for” causation to be shown at the initial prima facie stage of retaliation, or only after an employer has provided a reason for the adverse employment action at the final pretext stage?
Circuits are split as to whether the “but-for” causation extends to the initial prima facie stage. The Fifth Circuit held in Garcia, that an employee’s prima facie case of retaliation only needs to demonstrate a “but for” causation at the final pretext stage of the McDonnell Douglas framework. The final pretext stage must consider the timing between an employee’s protected activity and an adverse action against her. Sufficiently close timing between the two events can establish “that the adverse action would not have occurred ‘but for’ the employer’s retaliatory motive.” Four months was close enough here. Temporal proximity and other circumstantial evidence of retaliation would satisfy the “but for” causation. Likewise, the Third and Fourth Circuits cited similar holdings. Young v. City of Philadelphia Police Dep’t, (3d Cir. 2016); Foster v. Univ. of Md. – E. Shore, (4th Cir. 2015). If the “but for” causation had to be proved at the initial prima facie stage, the McDonnell Douglas burdening-shifting framework would be superfluous. The employee’s “ultimate burden of persuasion [would be satisfied] without proceeding through the pretext analysis.”
In contrast, the Sixth and Eleventh Circuits require the employee to overcome a heightened “but for” causation standard. In Montell v. Diversified Clinical Services, Inc. (2014), the Sixth Circuit held that the close-timing standard is insufficient when some time elapses; the employee must offer “other evidence of retaliatory conduct to establish causality.” Additionally, the Eleventh Circuit held in Sims v. MVM, Inc. (2013), with regard to Age Discrimination in Employment Act “ADEA” cases, the burden of persuasion remains at all times with the employee to demonstrate “but for” causation at the initial prima facie stage and the final pretext stage.
The heightened “but for” causation requirement should only apply in the final pretext stage. Once the employer provides a benign reason for termination, allowing the employee to offer additional evidence will permit a judge to infer whether the termination was actually driven by retaliation.
For further reading, see: Examining Retaliation As a Use of Force: Why State Courts Should Return to the Pre-Nassar, Pro-Plaintiff Framework (2018) by Amber L. Kipfmiller and 5th Circuit Resurrects Whistleblower’s Retaliation Suit Against Government Contractor (2019) by Yvonne L. DeMarino, Esq.