Foster v. University of Maryland-Eastern Shore

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1073

IRIS FOSTER,

Plaintiff - Appellant,

v.

UNIVERSITY OF MARYLAND-EASTERN SHORE,

Defendant - Appellee.

------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION,

Amicus Supporting Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Paul W. Grimm, Magistrate Judge;
Timothy J. Sullivan, Magistrate Judge. (1:10-cv-01933-TJS)

Argued: January 27, 2015 Decided: May 21, 2015

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Keenan
and Judge Wynn joined.

ARGUED: Leizer Z. Goldsmith, THE GOLDSMITH LAW FIRM, LLC,
Washington, D.C., for Appellant. Carl N. Zacarias, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee. ON BRIEF: Douglas F. Gansler, Attorney General of
Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee. Richard R. Renner, KALIJARVI, CHUZI,
NEWMAN & FITCH, P.C., Washington, D.C.; Denise M. Clark, CLARK
LAW GROUP, PLLC, Washington, D.C.; Ellen K. Renaud, SWICK &
SHAPIRO, Washington, D.C., for Amicus Curiae.

2
FLOYD, Circuit Judge:

This appeal concerns the effect of the Supreme Court’s

decision in University of Texas Southwestern Medical Center v.

Nassar, 133 S. Ct. 2517 (2013), on what Title VII retaliation

plaintiffs must show to survive a motion for summary judgment.

In Nassar, the Court held that a successful retaliation

plaintiff must prove that retaliatory animus was a but-for cause

of the challenged adverse employment action, eliminating mixed-

motive liability under the “lessened” motivating factor test.

However, the Nassar Court was silent as to the application of

but-for causation in McDonnell Douglas pretext cases. Because

we conclude that Nassar did not alter the McDonnell Douglas

analysis for retaliation claims, we reverse in part the district

court’s grant of summary judgment.

I.

On March 12, 2007, Plaintiff-Appellant Iris Foster was

hired by Defendant-Appellee the University of Maryland-Eastern

Shore (the University) as a campus police officer. 1 Her

1
In reviewing de novo the district court’s order granting
summary judgment to the University, we “view the facts and all
justifiable inferences arising therefrom in the light most
favorable to” Foster, as the nonmoving party. Libertarian Party
of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013). The
following statement of facts conforms to this standard.

3
appointment was subject to a standard six-month probationary

period, during which she was essentially an at-will employee.

The campus police department was supervised by Lawrence Wright.

Rudolph Jones, one of Foster’s new coworkers, supervised the

campus security guards and reported directly to Wright. Foster

and Jones worked in the same building.

According to Foster’s uncontradicted evidence, Jones began

sexually harassing Foster before she even started work: He spied

on her while she was being fitted for her new uniform in a state

of partial undress. The harassment continued during Foster’s

first month on the job. Among other things, Jones stared at

her, made lewd or suggestive comments about her, kissed and

pinched her on the cheek, and pressed his groin against her

buttocks while laying his arm across her breasts.

A month after the harassment began, Foster notified her

superiors about Jones’s inappropriate sexual conduct. First,

she spoke to Wright, who tried to resolve the matter informally

by meeting with Foster and Jones that same day. Foster then

told the University’s Director of Human Resources, Marie Billie,

that Jones had sexually harassed her, and later sent Billie a

written complaint detailing Jones’s harassment.

Billie investigated Foster’s allegations and concluded that

Jones had acted inappropriately. She therefore recommended to

the University’s Vice President for Administrative Affairs,

4
Ronnie Holden, that he discipline Jones. Among other things,

Billie recommended that Holden transfer Jones away from his role

as supervisor of campus security guards, require him to take

sexual harassment training, and require him to sign a “Last

Chance Agreement” putting him on notice that he would be

immediately terminated upon any further violation of University

policy. Holden immediately adopted Billie’s recommendations and

punished Jones accordingly. 2

According to Foster, however, she was also punished by the

University for complaining about Jones. A few weeks before

Foster’s probationary period was to end, Wright extended her

probation by an additional six months. Although the department

regularly extended the probation of all new hires pursuant to

University policy, Foster claims that her probation was extended

in retaliation for her complaints. Foster further claims that

the University retaliated against her over the next several

months by changing her schedule without notice, denying her

tuition remission, denying her light duty following an injury,

and barring her from attending a training session while she was

on injury leave. During this time, Foster complained repeatedly

2
Foster does not allege that Jones engaged in any further
sexual harassment after he was disciplined.

5
to Wright and Billie about the perceived incidents of

retaliation.

Less than a month after Foster’s last complaint, Wright

recommended Foster for termination. 3 Billie and Holden reviewed

Wright’s recommendation and ultimately agreed that Foster should

be fired. Holden notified Foster of her termination on October

29, 2007, in a letter that did not explain the reasons for

Foster’s termination.

During the course of this litigation, Billie and Holden

have provided several justifications for firing Foster. They

observed that Foster had used almost all of her personal and

sick leave for the year in relatively short time; that she was

inflexible when asked to come in early or stay past the end of

her scheduled shift; and that she was not a team player. They

also allegedly observed that Foster had been disciplined by

Wright for moving a table into a police holding cell without

permission—purportedly threatening officer safety—and for

revising certain interoffice forms. 4

3
Because Foster was still on probation, she was technically
“rejected on probation.” J.A. 124, 1049. For the sake of
clarity, we refer to this rejection as a termination.
4
Foster and one of her coworkers testified that Foster
edited the forms at Wright’s request and that Wright praised the
work. Wright issued a written reprimand to Foster regarding the
forms on June 4, 2014—two months after Foster edited the forms,
and one day before Billie disciplined Jones.

6
 In her deposition, Billie candidly offered an additional

reason for terminating Foster: “everything that ever happened

[Foster] attributed to the sexual harassment complaint,” and she

“couldn’t move on” or “get past [the harassment].” J.A. 323–24.

Billie believed that Foster was fixated on her harassment

experience and became preoccupied with it. She agreed that

Foster was an “unacceptable fit” for the position of police

officer because she complained too often about perceived

retaliation. J.A. 323.

Foster appealed her termination, first through the

University System of Maryland Grievance Procedure and then

before the state Office of Administrative Hearings. A Maryland

Administrative Law Judge rejected her appeal. Foster then filed

a complaint with the Equal Employment Opportunity Commission

(EEOC), which found insufficient evidence to support her

complaint and issued a right-to-sue letter. Foster subsequently

initiated this suit. Her complaint alleges three causes of

action under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.: discriminatory termination based on

gender, retaliatory termination, and the creation of a hostile

work environment.

The district court granted the University summary judgment

on the discriminatory termination and hostile work environment

claims, but denied summary judgment on the retaliation claim.

7
After working through the McDonnell Douglas framework, it held

that (1) “a reasonable jury could find that [the] instances in

which Defendant made it more difficult for Plaintiff to work and

attend training” demonstrated retaliatory animus that was

“causally related” to her termination, J.A. 1070, and (2) “a

reasonable jury could conclude that the proffered reasons for

termination were pretextual,” J.A. 1075 (internal quotations and

brackets omitted).

The University filed a motion for reconsideration in light

of the Supreme Court’s intervening decision in University of

Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517

(2013), which clarified the causation standard for Title VII

retaliation claims. The district court 5 granted the University’s

motion for reconsideration and motion for summary judgment, this

time determining that summary judgment was warranted on Foster’s

retaliation claim under the causation standard articulated in

Nassar. The court concluded that, under the new Nassar

standard, Foster could no longer satisfy the elements of a prima

5
The University’s summary judgment motion was first decided
by Magistrate Judge Paul Grimm, to whom the case had been
referred for all proceedings and the entry of judgment in
accordance with 28 U.S.C. § 636(c) and with the parties’
consent. Before the University filed its motion for
reconsideration, Magistrate Judge Grimm was confirmed as a
United States District Judge, and the case was reassigned to
Magistrate Judge Timothy Sullivan.

8
facie case: “While the evidence may have been sufficient to

allow a reasonable jury to find a ‘causal link’ between her

complaint and her termination, it is wholly insufficient to

allow a reasonable jury to find that her protected activity was

the determinative reason for her termination under Nassar.”

J.A. 1166.

Foster timely appealed the grant of summary judgment as to

all three claims. We have jurisdiction over final judgments of

the district court pursuant to 28 U.S.C. § 1291.

II.

We review a grant of summary judgment de novo. Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.

1996). “Summary judgment is appropriate when ‘there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Bostic v. Schaefer,

760 F.3d 352, 370 (4th Cir. 2014) (quoting Fed. R. Civ. P.

56(a)). “A dispute is genuine if a reasonable jury could return

a verdict for the nonmoving party.” Libertarian Party of Va.,

718 F.3d at 313 (internal quotation marks omitted). “A fact is

material if it ‘might affect the outcome of the suit under the

governing law.’” Id. (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). “We are required to view the facts

and all justifiable inferences arising therefrom in the light

9
most favorable to the nonmoving party . . . .” Id. at 312. In

doing so, we must not weigh evidence or make credibility

determinations. Mercantile Peninsula Bank v. French, 499 F.3d

345, 352 (4th Cir. 2007). “[C]ourts may not resolve genuine

disputes of fact in favor of the party seeking summary

judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per

curiam).

III.

To determine whether Foster’s retaliation claim survives

the University’s summary judgment motion, we must first

determine how Nassar affects a Title VII retaliation plaintiff’s

burden at the summary judgment stage. We conclude that the

McDonnell Douglas framework, which already incorporates a but-

for causation analysis, provides the appropriate standard for

reviewing Foster’s claim.

A.

Title VII prohibits an employer from both

(i) discriminating against an employee on the basis of sex, and

(ii) retaliating against an employee for complaining about prior

discrimination or retaliation. 42 U.S.C. §§ 2000e-2(a)(1),

2000e-3(a). Plaintiffs may prove these violations either

through direct and indirect evidence of retaliatory animus, or

10
through the burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Price v. Thompson, 380 F.3d 209,

212 (4th Cir. 2004). We have also referred to these two

“avenues of proof” as the “mixed-motive” framework and the

“pretext” framework, respectively. Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284–85 (4th Cir. 2004) (en

banc). It is left to the plaintiff’s discretion whether to

proceed by direct and indirect evidence or by mean of the

McDonnell Douglas burden-shifting framework. Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 n.4 (4th

Cir. 2005) (“In the event that a plaintiff has direct evidence

of discrimination or simply prefers to proceed without the

benefit of the burden-shifting framework, she is under no

obligation to make out a prima facie case.”).

Historically, we have considered Title VII retaliation

claims under the same standard as discrimination claims. See,

e.g., Price, 380 F.3d at 212 (analyzing a retaliation claim

under the pretext framework); Kubicko v. Ogden Logistics Servs.,

181 F.3d 544, 546 (4th Cir. 1999) (analyzing a retaliation claim

under the mixed-motive framework). In light of the Supreme

Court’s recent decision in Nassar, however, that no longer holds

true. Previously, a retaliation plaintiff only needed to show

that his or her “employer was motivated to take the adverse

employment action by both permissible and forbidden reasons.”

11
Hill, 354 F.3d at 284 (citing 42 U.S.C. § 2000e-2(m)). So long

as retaliatory animus was a motivating factor of the adverse

employment action, the employee could recover—even if the

employer would have taken the same adverse employment action in

the absence of such animus. Id.

In Nassar, however, the Supreme Court held that the

lessened causation standard of § 2000e-2(m) does not apply to

retaliation claims. 133 S. Ct. at 2533. Unlike discrimination

plaintiffs, retaliation plaintiffs are limited to “traditional

principles of but-for causation” and must be able to prove that

“the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.” Id.

Clearly, Nassar significantly altered the causation

standard for claims based on direct evidence of retaliatory

animus by rejecting the “mixed motive” theory of liability for

retaliation claims. 6 Cf. Harris v. Powhatan Cnty. Sch. Bd., 543

F. App’x 343, 346 (4th Cir. 2013) (noting that the Supreme Court

in Gross v. FBL Fin. Serv. Inc., 557 U.S. 167 (2009), an

analogous case upon which the Nassar court relied heavily,

6
Retaliation plaintiffs may still proceed by direct and
indirect evidence, but in our experience it is the rare case in
which an employer admits not just to possessing an impermissible
motive, but also to acting upon it.

12
eliminated mixed-motive liability under the ADEA). 7 However,

Foster does not claim to proceed by direct evidence. 8 Rather,

she proceeds under the pretext framework, which Nassar does not

purport to address. We must therefore decide what effect, if

any, Nassar has on a retaliation plaintiff’s burden under the

McDonnell Douglas framework.

B.

The McDonnell Douglas framework is a three-step burden-

shifting framework used by Title VII plaintiffs who lack direct

evidence of retaliatory discrimination. Diamond, 416 F.3d at

318. To prevail under the McDonnell Douglas framework, Foster

must first establish a prima facie case by showing: (i) “that

[she] engaged in protected activity,” (ii) “that [her employer]

took adverse action against [her],” and (iii) “that a causal

relationship existed between the protected activity and the

adverse employment activity.” Price, 380 F.3d at 212. The

7
Because Nassar is functionally an extension of Gross, see
133 S. Ct. at 2523, our cases applying Gross prove instructive
here.
8
Foster’s opening brief limits its discussion of direct
evidence to an isolated footnote, Appellant’s Br. at 54 n.41,
and we therefore conclude that she has waived this argument on
appeal. See Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d
599, 607 (4th Cir. 2009) (finding that an argument raised only
in a footnote in appellant’s opening brief was waived on
appeal).

13
burden then shifts to the University to show that its

purportedly retaliatory action was in fact the result of a

legitimate non-retaliatory reason. Hill, 354 F.3d at 285. If

the employer makes this showing, the burden shifts back to the

plaintiff to rebut the employer’s evidence by demonstrating that

the employer’s purported nonretaliatory reasons “were not its

true reasons, but were a pretext for discrimination.” Id.

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000)); see also Merritt v. Old Dominion Freight Line,

Inc., 601 F.3d 289, 295 (4th Cir. 2010). In this way, a

plaintiff is able to prove causation even without direct

evidence of retaliatory animus: If a plaintiff can show that she

was fired under suspicious circumstances and that her employer

lied about its reasons for firing her, the factfinder may infer

that the employer’s undisclosed retaliatory animus was the

actual cause of her termination. Reeves, 530 U.S. at 148 (“[A]

plaintiff’s prima facie case, combined with sufficient evidence

to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employer

unlawfully discriminated.”).

Thus, Foster must establish causation at two different

stages of the McDonnell Douglas framework: first, in making a

prima facie case, and second, in proving pretext and satisfying

14
her ultimate burden of persuasion. We consider the

applicability of Nassar to each causation requirement in turn.

1.

Nassar involved a post-judgment motion for judgment as a

matter of law in a mixed-motive case, and therefore did not

address the elements of a prima facie case of retaliation under

the pretext framework. 133 S. Ct. at 2524. 9 Our sister circuits

disagree as to whether Nassar has any bearing on the causation

prong of the prima facie case. 10 For the reasons that follow, we

conclude that it does not. 11

9
See also Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d
448, 454 (5th Cir. 2012) (“It goes without saying that, when a
race-discrimination claim has been fully tried, as has this one,
this court need not parse the evidence into discrete segments
corresponding to a prima facie case, an articulation of a
legitimate, nondiscriminatory reason for the employer's
decision, and a showing of pretext.” (quoting DeCorte v. Jordan,
497 F.3d 433, 437–38 (5th Cir. 2007))), rev’d, 133 S. Ct. 2517
(2013).
10
The law in our sister circuits is muddled. Some courts
require evidence of but-for causation in order to establish a
prima facie case. See EEOC v. Ford Motor Co., No. 12–2484, 2015
WL 1600305 at *14 (6th Cir. Apr. 10, 2015); Ward v. Jewell, 772
F.3d 1199, 1203 (10th Cir. 2014); Beard v. AAA of Mich., 593 F.
App’x 447, 451 (6th Cir. 2014); Smith v. City of Fort Pierce,
Fla., 565 F. App’x 774, 778–79 (11th Cir. 2014) (per curiam).
Other courts have held, either expressly or implicitly, that
Nassar did not alter the elements of a prima facie case. See
Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507
(6th Cir. 2014); Butterworth v. Lab. Corp. of Am. Holdings, 581
F. App’x 813, 817 (11th Cir. 2014) (per curiam); Hague v. Univ.
of Tex. Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 336
(Continued)
15
 As an initial matter, the causation standards for

establishing a prima facie retaliation case and proving pretext

are not identical. Rather, the burden for establishing

causation at the prima facie stage is “less onerous.” Williams

v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).

Adopting the contrary rule (and applying the ultimate causation

standard at the prima facie stage) would be tantamount to

eliminating the McDonnell Douglas framework in retaliation cases

by restricting the use of pretext evidence to those plaintiffs

who do not need it: If plaintiffs can prove but-for causation

at the prima facie stage, they will necessarily be able to

(5th Cir. 2014); Feist v. La. Dep’t of Justice, Office of the
Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013); Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).

11
In a recent published opinion, a panel of this Court
stated the causation prong of the prima facie case as: “(3) that
the protected activity was a ‘but-for’ cause of [Plaintiff’s]
termination and not simply a ‘motivating factor.’” Walker v.
Mod-U-Kraf Homes, LLC, 775 F.3d 202, 210 (4th Cir. 2014) (citing
Hill, 354 F.3d at 285). The Walker court assumed that the
plaintiff had established a prima facie case, and therefore did
not apply its proposed test. The court also gave no indication
that its proposed change to the prima facie case resulted from a
construction of Nassar. Language in a published opinion that is
“unrelated to the ratio decidendi of [the] case” is properly
regarded as dictum rather than binding precedent. United States
v. Shepperson, 739 F.3d 176, 180 n.2 (4th Cir. 2014). For the
reasons that follow, we are unpersuaded that the Walker dictum
reflects the best reading of Nassar and decline to adopt its
restatement of the prima facie case.

16
satisfy their ultimate burden of persuasion without proceeding

through the pretext analysis. Conversely, plaintiffs who cannot

satisfy their ultimate burden of persuasion without the support

of pretext evidence would never be permitted past the prima

facie stage to reach the pretext stage. 12 Had the Nassar Court

intended to retire McDonnell Douglas and set aside 40 years of

precedent, it would have spoken plainly and clearly to that

effect. Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563

(2007) (stating that the Conley pleading standard “has earned

its retirement” and “is best forgotten”). But it did not do so.

We therefore hold that Nassar does not alter the causation prong

of a prima facie case of retaliation. 13

12
The district court on reconsideration acknowledged that
retaliation plaintiffs proceeding under McDonnell Douglas will
need “to rely on [pretext] as evidence to show causation.” J.A.
1167–68. Nevertheless, the court held that it would not
“determine whether the explanation [the University] previously
provided for terminating Ms. Foster [was] pretextual” because
Foster had failed to establish the causation prong of the prima
facie case (without the use of pretext evidence). Id. We
decline to impose such a Catch-22 on retaliation plaintiffs.
13
This finding accords with our prior unpublished opinions
concluding that the but-for causation standard for ADEA claims
articulated by the Supreme Court in Gross does not apply at the
prima facie stage. See, e.g., Arthur v. Pet Dairy, 593 F. App’x
211, 217 n.4 (4th Cir. 2015) (per curiam) (noting that an a
plaintiff who makes out a prima facie case of ADEA
discrimination must still prove “that his age was the but-for
cause of his termination”); Harris, 543 F. App’x at 346–47;
Billingslea v. Astrue, 502 F. App’x 300, 302 (4th Cir. 2012)
(per curiam); Tuttle v. McHugh, 457 F. App’x 234, 237 (4th Cir.
2011) (per curiam).

17
 2.

We next consider whether Nassar alters the pretext stage of

the McDonnell Douglas framework. Because the pretext framework

already requires plaintiffs to prove that retaliation was the

actual reason for the challenged employment action, we conclude

that it does not.

A plaintiff who establishes a prima facie case of

retaliation bears the “ultimate burden of persuading the court

that [she] has been the victim of intentional [retaliation].”

Hill, 354 F.3d at 285 (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)); see also Merritt, 601 F.3d

at 294–95 (identifying the “ultimate question” in any Title VII

case under either framework as “discrimination vel non” (quoting

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714

(1983))). In order to carry this burden, a plaintiff must

establish “both that the [employer’s] reason was false and that

[retaliation] was the real reason for the challenged conduct.”

Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir.

1995) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993)).

Nassar’s but-for causation standard is not the “heightened

causation standard” described by the district court, J.A. 1166–

67, and does not demand anything beyond what is already required

18
by the McDonnell Douglas “real reason” standard. 14 A plaintiff

who can show that retaliation “was the real reason for the

[adverse employment action],” Holland v. Wash. Homes, Inc., 487

F.3d 208, 218 (4th Cir. 2007), will necessarily be able “to show

that the harm would not have occurred in the absence of—that is,

but for—the defendant’s conduct,” Nassar, 133 S. Ct. at 2525

(internal quotation marks and citation omitted). In other

words, the statements “the real reason for Foster’s termination

was her employer’s retaliation” and “Foster would not have been

terminated but for her employer’s retaliatory animus” are

functionally equivalent.

We conclude, therefore, that the McDonnell Douglas

framework has long demanded proof at the pretext stage that

retaliation was a but-for cause of a challenged adverse

employment action. Nassar does not alter the legal standard for

adjudicating a McDonnell Douglas retaliation claim. 15

14
In the early days of McDonnell Douglas and before the
advent of the mixed-motive framework, we stated clearly that the
pretext stage requires proof of but-for causation. Ross v.
Commc’ns Satellite Corp., 759 F.2d 355, 365–66 (4th Cir. 1985)
(“For the employee to disprove a legitimate nondiscriminatory
explanation for adverse action, the third stage of the Burdine
analysis, we determine that he must show that the adverse action
would not have occurred ‘but for’ the protected conduct.”),
abrogated by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
15
The Fifth Circuit has reached the same conclusion. See,
e.g., Feist, 730 F.3d at 454 (“‘After the employer states its
reason, the burden shifts back to the employee to demonstrate
(Continued)
19
 C.

Having clarified the proper legal standard for assessing a

Title VII retaliation claim in light of Nassar, we turn to the

University’s motion for summary judgment. In its initial, well-

reasoned decision, the district court concluded that Foster’s

evidence was “sufficient to generate a jury question on

pretext.” J.A. 1075. We agree.

We first consider whether Foster established a prima facie

case of retaliation. To establish a prima facie case, Foster

must show “that [s]he engaged in protected activity, that [the

University] took adverse action against [her], and that a causal

relationship existed between the protected activity and the

adverse employment activity.” Price, 380 F.3d at 212. Only the

causation prong is disputed on appeal.

that the employer’s reason is actually a pretext for
retaliation,’ which the employee accomplishes by showing that
the adverse action would not have occurred ‘but for’ the
employer’s retaliatory motive . . . .” (internal citations
omitted) (citing Nassar, 133 S. Ct. at 2533)); Hague, 560 F.
App’x at 336 (“An employee establishes pretext by showing that
the adverse action would not have occurred ‘but for’ the
employer’s retaliatory reason for the action.”) (citing Nassar,
133 S. Ct. at 2533–34); see also Scrivener v. Socorro Ind. Sch.
Dist., 169 F.3d 969, 972 (5th Cir. 1999) (“To carry her ultimate
Title VII burden, an employee must also show that her employer
would not have taken the adverse employment action ‘but for’ the
employee’s participation in the protected activity.”).

20
 Foster argues that she can show causation by means of

(i) Billie’s statement of retaliatory animus; (ii) the temporal

proximity between Foster’s final complaint of retaliation and

her termination; and (iii) the additional retaliatory acts that

preceded her firing. Billie’s statement that Foster was fired

because “everything that ever happened she [Foster] attributed

to the sexual harassment complaint,” J.A. 323, suggests that

Billie and Holden fired Foster because she complained about

retaliation. Foster’s evidence of temporal proximity also tends

to show causation: according to her uncontradicted testimony,

she complained to Billie about perceived retaliation on

September 21, 2007, and again on September 28, 2007, just a

month before she was terminated. 16 See King v. Rumsfeld, 328

F.3d 145, 151 & n.5 (4th Cir. 2003) (finding that a two-and-a-

half month gap between protected activity and an adverse

employment action was sufficiently narrow to establish the

causation prong of the prima facie case solely on the basis of

temporal proximity). Taken together, this evidence is

16
The University argues that, in considering temporal
proximity, we may only look to Foster’s initial complaint of
harassment and not her subsequent complaints of retaliation.
This is plainly contrary to law. See, e.g., Carter v. Bell, 33
F.3d 450, 460 (4th Cir. 1994) (finding temporal proximity where
an employee was demoted six weeks after a hearing on his EEO
complaint).

21
sufficient to create a jury question regarding the causation

prong of the prima facie case. 17

Because Foster concedes that the University has proffered

evidence of a legitimate, non-retaliatory reason for her

termination, we proceed to the pretext stage of the McDonnell

Douglas inquiry. The University claims to have fired Foster

because she used too much leave time, was inflexible and

unwilling to accommodate changes to her schedule, and moved

furniture and edited office forms without permission. Foster

argues that the University’s proffered non-retaliatory reasons

are pretextual because: (i) Foster’s immediate supervisor and

the department scheduler both testified that Foster was not

inflexible in scheduling; (ii) Wright testified that there was

no documentation of Foster’s supposed inflexibility in her

personnel file; (iii) Foster’s immediate supervisor testified

that Foster had been given permission to edit the office forms

and that Wright had initially praised her work; (iv) Foster’s

immediate supervisor repeatedly praised her work and discussed

promoting her to corporal before she made her sexual harassment

17
Even if this evidence were insufficient, when considered
together with Foster’s evidence of the University’s additional
retaliatory acts—specifically, the denial of light duty and the
denial of training—it would suffice to create a jury question
regarding causation.

22
complaint; and (v) the University did not initially provide

Foster with a reason for her termination. 18

From this evidence, the district court concluded that

Foster “render[ed] the employer’s reason so questionable as to

raise an inference of deceit.” J.A. 1075 (citation omitted).

We agree. A reasonable jury could conclude from Foster’s

evidence that the University’s proffered justifications were not

its real reasons for firing her. A reasonable jury could

further conclude—as required by Reeves and Nassar—that the

University’s actual reason for firing Foster was to retaliate

against her for complaining about Jones’s alleged sexual

harassment and for her subsequent complaints of ongoing

retaliation. We therefore find that summary judgment in favor

of the University is not warranted on Foster’s retaliation

claim.

IV.

Foster also appeals the district court’s grant of summary

judgment on her gender-based discrimination and hostile work

18
We note with some frustration that in setting out this
evidence of pretext, Foster’s counsel failed to comply with Rule
28(a)(8)(A) of the Federal Rules of Appellate Procedure, which
requires that briefs contain “citations to the . . . parts of
the record on which the appellant relies.” Counsel is
admonished to show greater respect for both his client’s
interests and the Court’s time in his future appearances before
this Court.

23
environment claims, which were not at issue in the University’s

motion for reconsideration. We consider each claim in turn.

A.

The district court found that Foster failed to make out a

prima facie case of gender-based discriminatory discharge

because she failed to show that she was replaced by a male

police officer with comparable qualifications. See Causey v.

Balog, 162 F.3d 795, 802 (4th Cir. 1998) (noting “comparable

qualifications” element of prima facie case). Although her

replacement was male, the undisputed evidence shows that he was

better qualified for the position. Foster concedes this point,

but argues that we should bypass our precedent and instead adopt

the approach of the Sixth Circuit, which does not impose a

comparable qualifications requirement. This argument—which she

raises for the first time on the last page of her reply brief

and is, in any event, waived—is unavailing. See McMellon v.

United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc)

(affirming “the basic principle that one panel cannot overrule a

decision issued by another panel”). We therefore affirm the

district court’s grant of summary judgment on Foster’s gender-

based discrimination claim.

24
 B.

The district court also correctly granted summary judgment

on Foster’s hostile work environment claim. “In order to make

out a hostile work environment claim based on sex, ‘a plaintiff

must show that the offending conduct (1) was unwelcome, (2) was

because of her sex, (3) was sufficiently severe or pervasive to

alter the conditions of her employment and create an abusive

working environment, and (4) was imputable to her employer.’”

Hoyle v. Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011)

(citation omitted). The district court found that Foster

established a genuine dispute of material fact on the first,

second, and third elements, but granted summary judgment to the

University because no reasonable jury could find that Jones’s

alleged harassment was imputable to his employer.

Sexual harassment is imputable to an employer when the

employer “knew or should have known about the harassment and

failed to take effective action to stop it.” Howard v. Winter,

446 F.3d 559, 565 (4th Cir. 2006) (citation and internal

quotation marks omitted). It is undisputed that the University

promptly investigated Foster’s complaint and, within 30 days,

transferred Jones to a position where he would no longer

interact with Foster and required him to attend counseling and

sign a “Last Chance Agreement.” J.A. 1059. It is also

undisputed that Foster was not sexually harassed after

25
complaining to the University about Jones’s harassment. From

these undisputed facts, we affirm the district court’s

conclusion that the University took effective action to stop

Jones’s harassment of Foster, and that Jones’s actions are not

imputable to the University under this theory. See EEOC v.

Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (“A remedial

action that effectively stops the harassment will be deemed

adequate as a matter of law.” (quoting Knabe v. Boury Corp., 114

F.3d 407, 411–12 n.8 (3d Cir. 1997))).

Foster argues that she can still prevail because the

University “should have known” about Jones’s harassment and

should have stopped it preemptively because a previous employee—

described in the record as Employee C—also complained that Jones

had sexually harassed her. As we have previously held, an

“employer’s knowledge that a male worker has previously harassed

female employees other than the plaintiff will often prove

highly relevant in deciding whether the employer should have

anticipated that the plaintiff too would become a victim of the

male employee’s harassing conduct.” Paroline v. Unisys Corp.,

879 F.2d 100, 107 (4th Cir. 1989), rev’d in part on other

grounds, 900 F.2d 27, 28 (4th Cir. 1990) (per curiam) (en banc).

Here, as evidence that the University was on notice of

Jones’s past harassment of Employee C, Foster has produced

Employee C’s deposition, Employee C’s complaint filed with the

26
Maryland Commission on Human Relations (MCHR), Billie’s

testimony that there had been other sexual harassment claims

against Jones (including Employee C’s), and Holden’s testimony

that Employee C had filed an MCHR complaint against the

University arising from alleged harassment by Jones. In

response, the University argues that this Circuit does not

recognize such a theory of liability and that even if it did,

the University was not on notice of Jones’s propensity for

engaging in sexual harassment because both its internal

investigation and the MCHR investigation concluded that Employee

C’s complaint was without merit.

Contrary to the University’s argument, the rule we

articulated in Paroline remains good law in this Circuit. We

take this opportunity to reaffirm its holding: employers have an

affirmative duty to prevent sexual harassment, and will be

liable if they “anticipated or reasonably should have

anticipated” that a particular employee would sexually harass a

particular coworker and yet “failed to take action reasonably

calculated to prevent such harassment.” Paroline, 879 F.2d at

107 (emphasis added); see also Mikels v. City of Durham, 183

F.3d 323, 331 (4th Cir. 1999) (noting that in Paroline,

liability arose because “the employer was already on notice

. . . of the harasser’s propensities”). The question, then, is

whether the University reasonably should have anticipated that

27
Jones would harass Foster in light of Employee C’s prior

complaints of harassment.

In Paroline, the plaintiff produced evidence that her

employer had failed to investigate prior complaints that the man

who harassed her had engaged in unwanted touching of other women

in the office. 879 F.2d at 103. Here, however, Foster concedes

that the University investigated Employee C’s allegations and

found them to lack credibility. Moreover, according to Holden’s

uncontradicted testimony, the MHCR also investigated Employee

C’s allegations and similarly returned a finding of “no probable

cause.” 19 J.A. 563–64. We conclude as a matter of law that, for

purposes of the Paroline failure-to-warn theory, an employer may

reasonably rely upon the findings of a state civil rights agency

in determining whether an employee poses a risk of creating a

hostile work environment. To hold otherwise would effectively

19
The MCHR decision was not included in the record below,
and we therefore cannot rule out the possibility that Holden’s
testimony mischaracterizes its contents. But because Foster
failed to present any evidence that would controvert Holden’s
testimony, we are compelled by Rule 56 to accept the
University’s evidence as true. See 10A Charles Alan Wright &
Arthur R. Miller, et al., Federal Practice & Procedure § 2727
(3d ed. 1998) (“If the movant presents credible evidence that,
if not controverted at trial, would entitle him to a Rule 50
judgment as a matter of law that evidence must be accepted as
true on a summary-judgment motion when the party opposing the
motion does not offer counter-affidavits or other evidentiary
material supporting the opposing contention that an issue of
fact remains . . . .”).

28
require employers to discipline or terminate all employees

accused of harassment, regardless of whether the accusations

against them are supported by evidence. This we decline to do.

Viewing the evidence in the light most favorable to Foster,

she has failed to create a jury question regarding whether the

University reasonably should have anticipated that she would be

the victim of Jones’s sexual harassment. The harassment is

therefore not imputable to the University, and so we affirm the

district court’s grant of summary judgment on Foster’s hostile

work environment claim.

V.

For the foregoing reasons, we reverse in part the district

court’s order granting summary judgment to the University and

remand to the district court for further proceedings consistent

with this opinion.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

29