NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2115
______________
JASMINE D. YOUNG,
Appellant
v.
CITY OF PHILADELPHIA POLICE DEPARTMENT;
PHILADELPHIA POLICE COMMISSIONER
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2:12-cv-05729)
District Judge: Hon. Eduardo C. Robreno
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 22, 2016
______________
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges
(Filed: June 3, 2016)
______________
OPINION*
______________
SHWARTZ, Circuit Judge
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Jasmine D. Young (“Young”) appeals from the order granting summary judgment
to the City of Philadelphia Police Department (“Department”) on her claim that the
Department retaliated against her for filing a harassment complaint, in violation of Title
VII, 42 U.S.C. § 2000e-3. The District Court concluded that Young did not make a
prima facie showing of retaliation because she did not establish her harassment complaint
was the “but for” cause of her termination. Because we have not stated in a precedential
opinion that “but for” causation is not required at the prima facie stage of summary
judgment analysis, the District Court understandably mistook its applicability. We will
nonetheless affirm the order granting summary judgment because Young failed to show
that the Department’s legitimate explanations for her dismissal were pretextual.
I
On February 22, 2011, Young enrolled as a recruit at the Police Academy. While
at the Police Academy, Young was subject to its Rules and Regulations, the violation of
which may lead to discipline, including requiring recruits to write a memo describing the
violation, undertake a “duty day,” which is an hour of extra tasks performed after a
recruit’s regular training day, or incur demerits. Supp. App. 157. The type of
punishment, including the number of demerits that may be imposed, varies based upon
the rule that is violated and whether the recruit had previously violated that rule.
Superior officers have discretion when assessing the type and amount of discipline a
recruit receives for violating a rule. When a recruit accumulates fifteen or more demerits,
he or she is recommended for rejection from the Police Academy.
2
Early in her tenure at the Police Academy, Young failed to bring her license to roll
call, and as a result was required to write a memo and received one duty day. Young
received more discipline for a variety of incidents that occurred after she complained
about the behavior of a fellow recruit, Hamin Chamberlain. About one month after they
both enrolled in the Police Academy, Chamberlain told Young that he had romantic
feelings for her. Young rebuffed his overtures, and his behavior toward her changed.
She asserts that he followed her, swore at her, and posted negative comments about her
online.
On April 8, 2010, Young submitted two memos to a supervisor, Sergeant Tim
Fanning, about Chamberlain. One memo described his allegedly harassing conduct and
the other recounted an episode during class in which Chamberlain’s classmates laughed
at a question he asked and Chamberlain responded with a lewd gesture and threatening
remarks.1 Sergeant Fanning encouraged Young to file a complaint with the Department’s
EEO unit, which she did on April 18, 2010. Thereafter, the Department’s Internal Affairs
Bureau commenced an investigation. During the investigation, Chamberlain was
transferred to another platoon.2
1
Chamberlain was later interviewed about the incident, acknowledged what had
occurred in class, and reported during or after the class that Young made derogatory
comments to him and called him “an idiot.” Supp. App. 257-58.
2
Chamberlain was eventually dismissed from the Police Academy for incidents
involving another recruit. Supp. App. 245-46.
3
On April 20, 2010, two days after she filed her complaint, Young received her first
two demerits3 and two additional duty days. Young violated the rule that required that a
recruit have all equipment at roll call. Young admits that she violated the rule and the
discipline she received was warranted.4
On April 26, 2010, Young was disciplined for insubordination. More specifically,
Young complained in the presence of a Corporal about having to perform a duty day for
her conduct on April 20. The insubordination rule provided a range of discipline from
five to nine demerits and five to nine duty days. Young was given seven demerits and
seven duty days for the offense, bringing her total number of demerits at that point to
nine. Young claims that when she questioned the Corporal about his motive for the
discipline, his reaction made her feel as if the discipline was in retaliation for her EEO
complaint.5 Young claims that a Captain told her that he did not understand why she
received so many demerits for her first insubordination offense and she asserts that
3
Young received duty days for failing to have her license during roll call on April
2, 2010, S.A. 20, but it is unclear from the record whether she received demerits from this
infraction.
4
That same day, Sergeant David Lee caught Young and two other recruit officers
talking in the hallway, in violation of the rule that prohibited congregating in the
corridors. No demerits were assigned but all three were ordered to write memo about the
incident. Young claims that Lee looked at her specifically, which she claims made her
feel singled out in retaliation for the complaint.
5
When asked at her deposition why she felt her discipline for insubordination was
the result of her EEO complaint, she replied, “[j]ust by the way that he acted towards me
and the way that he reacted about the situation. . . . I actually mentioned it to him. . . I
said, like, was this because I made the complaint? Like, where is this coming from?
Because he never really, like, went off that way. And he was like, no it had nothing to do
with it, and he pretty much like – he just gave me like a weird look.” Supp. App. 26-27.
4
another recruit engaged in similar conduct, but was charged with committing a more
minor type of insubordination and received only two demerits and two duty days.
On May 24, 2010, Young received another demerit, this time from Sergeant
Fanning, for parking in the staff parking lot. In imposing the discipline, Sergeant
Fanning noted that Young had requested that Chamberlain not be permitted to park in the
recruits’ parking lot and in response, the Department ordered him to park elsewhere.
Young nonetheless parked her car in the staff parking lot two cars down from
Chamberlain’s. Young alleged that this demerit was in response to her EEO complaint
because Sergeant Fanning stated that she had “wanted this.” Supp. App. 43.
On June 11, 2010, Young was issued three demerits for violating the rule that
prohibits “reckless driving on or off Academy grounds.” Supp. App. 172, 224. Several
days earlier, Young had received a speeding ticket. The applicable rule prohibiting such
conduct permits discipline of up to five demerits and five duty days. Young asserts that
she received three demerits, instead of a lower number, because of her EEO complaint.6
On June 30, 2010, Young met with Captain William Maye, the Commanding
Officer of the Recruit Training Unit, to discuss the thirteen demerits she had
accumulated. Captain Maye warned Young that she was two demerits away from
potentially being rejected from the Police Academy and advised her to stay out of
trouble.
6
On June 17, 2010, Young had to write two memos, one for being late to class,
and one for writing a memo on a form that had already been written on. She does not
dispute the appropriateness of the discipline for these infractions.
5
Although she did not receive any demerits between that meeting and September 8,
2010, when the investigation into her EEO complaint concluded, Young argues that she
was placed under stricter scrutiny after this counseling session and was inappropriately
disciplined multiple times. For example, Young claims she was verbally reprimanded
once for wearing her tie at too long a length, although she says it was a clip-on tie that
she always wore in the same fashion. Another time she was reprimanded for having a
gym bag that looked like a purse. She claims that she was singled out in each instance
for retaliatory reasons. Young also asserts that she was subjected to inappropriate
comments from other recruits that the Police Academy leadership did not address.7
On September 8, 2010, the EEO investigation, which included interviews of all of
Young’s classmates and ten of her instructors, concluded. The investigating officer,
Police Officer Elizabeth Ortiz, reported that none of the witnesses could corroborate
Young’s claims of harassment by Chamberlain, aside from some of the details of the
April 8, 2010 classroom incident. While the instructors did not notice the events in the
classroom, recruits confirmed that the classroom incident occurred roughly as described
by Chamberlain and Young, and reported that Chamberlain had difficulty in the class and
that a number of “fellow classmates” regularly “joke[d] about it.” Supp. App. 140.
Recruits also told the investigator that Young, in particular, “picked on . . . Chamberlain
whenever he asked questions in class[,]” Supp. App. 139-41, calling him names and
insulting his intelligence.
7
Young claims that one recruit made unwanted sexual comments and advances
towards her, and a second made derogatory comments to her.
6
As a result of the investigation, Captain Maye submitted a “Request for Rejection
During Probation” to his superior officers. Supp. App. 227-29. The request stated that
the investigation revealed Young “had used obscene and disrespectful language to
[Chamberlain] and that she verbally harassed him on Academy grounds.” Supp. App.
228. Young was given two demerits for the use of profanity8 and five demerits for verbal
abuse, which were the recommended discipline levels for violations of those rules, giving
her a total of 20 demerits, well beyond the 15 needed for rejection. Captain Maye also
found that Young had violated the rule requiring her “to cooperate in a departmental
administrative investigation” because she “did not tell the truth during the investigation,”
which has a penalty of automatic rejection from the Police Academy. Supp. App. 228.
The request for rejection was approved and Young was dismissed effective September
30, 2010.
Young brought claims against the Department alleging gender discrimination,
hostile work environment, sexual harassment, and retaliation, in violation of Title VII of
the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. After
discovery, the Department filed a motion for summary judgment on all of her claims,
which was granted. Young appeals only the order granting summary judgment on her
Title VII retaliation claim.
8
Young claims that other recruits used profanity and were not disciplined. For
example, she witnessed one recruit use profanity in front of a Corporal at a social event,
who did not discipline him, but stated that he was “not hearing any of this.” Supp. App.
81.
7
II9
A
Title VII prohibits employers from retaliating against employees for complaining
about discrimination and harassment in the work place. See Civil Rights Act of 1964,
§ 704, 42 U.S.C. § 2000e3. Where there is no direct evidence of retaliation, claims
alleging retaliation under Title VII are analyzed under the McDonnell Douglas burden-
shifting framework. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006). Under
this framework, a plaintiff must first establish a prima facie case of retaliation under Title
VII, by showing that: (1) she “engaged in [a protected] activity”; (2) “the employer took
an adverse employment action against her”; and (3) “there was a causal connection
between her participation in the protected activity and the adverse employment action.”
Id. at 340-41 (internal quotation marks and citation omitted). If the plaintiff establishes a
prima facie case of retaliation, then the burden shifts to the employer to provide a
legitimate, non-retaliatory reason for its conduct. Id. at 342. If it does so, the burden
then shifts back to the plaintiff “to convince the factfinder both that the employer’s
proffered explanation was false, and that retaliation was the real reason for the adverse
9
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary
judgment de novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007). In
doing so, we apply the same standard as the District Court, viewing facts and making
reasonable inferences in the non-movant’s favor. Hugh v. Butler Cty. Family YMCA,
418 F.3d 265, 266-67 (3d Cir. 2005). Summary judgment is appropriate where “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). An issue is “genuine” only if there is a sufficient
evidentiary basis on which a reasonable jury could find for the non-movant. Kaucher v.
Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
8
employment action.” Id. (internal quotation marks and citation omitted); see also Marra
v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). Thus, the plaintiff must
ultimately prove that her employer’s retaliatory animus was the cause or, put differently,
the “real reason,” for the adverse employment action. See Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 286 (3d Cir. 2000) (using the term “real reason” to describe the
plaintiff’s ultimate burden at the pretext stage); see also Moore, 461 F.3d at 342
(identifying that the “ultimate question in any retaliation case is an intent to retaliate vel
non” (quoting Jensen v. Potter, 435 F.3d 444, 449 n.2 (3d Cir. 2006)) (alteration
omitted)).
A plaintiff must address causation at both the prima facie and pretext stages, but
the type of causation that must be shown at each point differs. Farrell, 206 F.3d at 286.
To establish causation at the prima facie stage, a plaintiff must introduce evidence about
the “scope and nature of conduct and circumstances that could support the inference” of a
causal connection between the protected activity and adverse action. Id. at 279. At this
stage, “a plaintiff may rely on a ‘broad array of evidence’ to demonstrate a causal link
between [the] protected activity and the adverse action taken.” Marra, 497 F.3d at 302
(quoting Farrell, 206 F.3d at 284). For example, very close temporal proximity between
the adverse action and the protected activity may be “unusually suggestive” of a causal
connection. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir.
2007) (internal quotation marks and citations omitted). A plaintiff can also rely on
evidence such as “intervening antagonism or retaliatory animus, inconsistencies in the
9
employer’s articulated reasons for terminating the employee, or any other evidence in the
record sufficient to support the inference of retaliatory animus.” Id. at 232-33.
By contrast, to prove causation at the pretext stage, the plaintiff must show that
she would not have suffered an adverse employment action “but for” her protected
activity. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). In
Nassar, the Supreme Court analyzed Congress’s use of the term “because” in Title VII’s
retaliation provision, 42 U.S.C. § 2000e3(a), and compared it with the “motivating
factor” language in the status-based discrimination provision.10 See id. at 2527-28.
While decided in the context of a review of rulings on post-trial motions and not in the
context of the McDonnell Douglas burden-shifting framework, the Nassar Court held that
a retaliation plaintiff must prove traditional “but-for” causation to prevail on the claim,
and that the “mixed-motive” standard is appropriate only in status-based discrimination
cases, where Congress used the term “motivating factor.”11 Id. at 2532-34.
10
Compare 42 U.S.C. § 2000e3(a) (“It shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”); with 42 U.S.C. § 2000e2(m) (“[A]n
unlawful employment practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice.”).
11
In reaching this conclusion, the Court explicitly relied on its prior interpretation
of the similar “because of” phrase used in the Age Discrimination in Employment Act
(“ADEA”). Id. at 2527-28 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009),
which replaced the “mixed-motive” framework with a “but-for” standard under the
ADEA).
10
Some appellate courts have concluded that Nassar’s “but-for” causation standard
applies only at the pretext stage and does not alter the causation prong of the prima facie
stage of retaliation analysis. See Foster v. Univ. of Md. E. Shore, 787 F.3d 243, 252, 252
n.15 (4th Cir. 2015) (explaining 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” and concluding that Nassar did not alter the requirements for
a prima facie case); Zann Kwan v. Andalex Grp., LLC, 737 F.3d 834, 845 (2d Cir. 2013)
(“[T]he but-for causation standard does not alter the plaintiff’s ability to demonstrate
causation at the prima facie stage on summary judgment.”); Feist v. La. Dep’t of Justice,
Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013) (applying Nassar’s “but-for”
standard at the pretext stage).12 As the Court of Appeals for the Fourth Circuit observed,
“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.” Foster, 787 F.3d at 251 (internal quotation marks and citation omitted).
Applying the “but-for” standard at the prima facie stage would effectively eliminate the
need to use the McDonnell Douglas burden shifting framework because plaintiffs who
can prove “but-for” causation at the prima facie stage would essentially “be able to
12
We note that at least one court of appeal has required but-for causation at the
prima facie stage but did not explicitly analyze the issue. See Ward v. Jewell, 772 F.3d
1199, 1203 (10th Cir. 2014) (requiring but-for causation to satisfy prima facie case).
Other courts have precedential opinions going in both directions: Compare Montell v.
Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th Cir. 2014) (treating Nassar as not
altering the prima facie case), Butterworth v. Lab. Corp. of Am. Holdings, 581 F. App’x
813, 817 (11th Cir. 2014) (per curiam) (same) with Yazdian v. ConMed Endoscopic
Techs., Inc., 793 F.3d 634, 649 (6th Cir. 2015) (citing Nassar’s but-for causation
requirement as describing the “fourth part of the” prima facie case).
11
satisfy their ultimate burden of persuasion without proceeding through the pretext
analysis.” Id. If the Supreme Court intended to end the use of burden shifting in
retaliation claims, “it would have spoken plainly and clearly to that effect.” Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007)). Thus, for a plaintiff to prevail at
the pretext stage, he or she must produce evidence showing that the employer’s reason
for its action was false and retaliation for engaging in the protected activity was the real
reason, or “but-for” cause, for its actions. 13
Because the District Court required “but-for” causation at the prima facie stage,
rather than requiring proof of the lesser causal connection that applies at the prima facie
stage under Farrell, we examine the record de novo under this lower causation standard
and, in doing so, conclude that Young established a prima facie case. First, by filing an
EEO complaint, Young engaged in the quintessential protected activity. See Moore, 461
F.3d at 341; 42 U.S.C. § 2000e3(a) (prohibiting retaliation against an employee who
“made a charge . . . under this subchapter”). Second, Young suffered materially adverse
employment actions that “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Moore, 461 F.3d at 341 (quoting Burlington N.
13
This result is also consistent with our ADEA precedent, in which a “but-for”
standard applies to a plaintiff’s ultimate burden of proof at the pretext stage. In Smith v.
City of Allentown, we held that “the but-for causation standard required by Gross does
not conflict with our continued application of the McDonnell Douglas paradigm in age
discrimination cases” and explained that a plaintiff can establish “but-for” causation by
showing that the employer’s proffered rationale for terminating her was a pretext for age
discrimination. 589 F.3d 684, 691 (3d Cir. 2009); see also Willis v. UPMC Children’s
Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing the “but-for” standard as the
overall burden of proof for the plaintiff and requiring the plaintiff to show that
discrimination was the real reason for termination at the pretext stage).
12
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotations
omitted)). The demerits that Young accrued following her complaint as well as her
ultimate rejection from the Police Academy are both adverse employment actions that
could dissuade a reasonable Police Academy recruit from filing a harassment complaint
with the EEO unit.
Third, Young has satisfied the causation component of the prima facie case by
producing evidence that “could support the inference . . . of a causal connection” between
the protected activity and the adverse employment action.14 Farrell, 206 F.3d at 279;
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (explaining that
“the proffered evidence, looked at as a whole, [must] suffice to raise the inference” of
causation (citation omitted)). Young received demerits from a Corporal for
insubordination, which she claims were not justified, just eight days after filing her EEO
complaint. A span this short is suggestive of retaliation at the prima facie stage. See,
e.g., Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days is unusually
suggestive); see also LeBoon, 503 F.3d at 233 (three months not unusually suggestive);
Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759-60 (3d Cir. 2004) (two
months not unusually suggestive). This, combined with the fact that Young points to a
14
The same evidence may be relevant at both the prima facie and pretext stages of
analysis. Farrell, 206 F.3d at 286 (“We recognize that by acknowledging that evidence in
the causal chain can include more than demonstrative acts of antagonism or acts actually
reflecting animus, we may possibly conflate the test for causation under the prima facie
case with that for pretext. . . . As our cases have recognized, almost in passing, evidence
supporting the prima facie case is often helpful in the pretext stage and nothing about the
McDonnell Douglas formula requires us to ration the evidence between one stage or the
other.” (citations omitted)).
13
similar incident in which the same Corporal awarded less discipline to a different recruit
officer, could support an inference of retaliation.15
In addition, drawing all inferences in Young’s favor, Young has shown a series of
disciplinary episodes that could be viewed as a reflecting pattern of antagonism towards
her. See, e.g., Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993)
(causation can be established through a “pattern of antagonism” such as a “constant
barrage of written and verbal warnings . . . and disciplinary action[s] . . . soon after
plaintiff’s initial complaints”). After filing her complaint on April 18, Young was
reprimanded or received discipline on April 20 and 26, May 24, June 11 and 17, and July
22. Some of the discipline was imposed for infractions such as congregating in the hall,
being late to class, carrying a feminine-looking bag, and failing to shine her shoes. This
pattern, together with Young’s assertions that other recruits were not similarly punished
for the same conduct, allows us to infer, at the prima face stage, a causal connection
between the complaint and the adverse actions.
15
We also note that Young was recommended for termination shortly after the
results of the investigation into her complaint were issued. One of the reasons proffered
for her termination was that she failed to cooperate in the investigation of her complaint
by not telling the “truth during the investigation.” Supp. App. 228. However, the
investigation report can also be read to indicate simply that Young’s classmates did not
corroborate her claims of harassment, not that Young’s story was contradicted. See
Supp. App. 137-44 (investigation report, stating that none of the witnesses could
corroborate each of Young’s claims of harassment by Chamberlain, though they did
report some of the details of the classroom incident). Viewing this evidence in the light
most favorable to Young, one could conclude that the investigation results were
construed against her to punish her for filing the complaint, adding further support to an
inference that there is a causal connection between the complaint and her termination.
14
While Young has produced sufficient evidence to support a prima facie case of
retaliation, her claim nonetheless fails. Under the burden-shifting framework, the
Department has carried its burden and provided a legitimate non-retaliatory reason for
Young’s rejection, namely her repeated rule violations and accrual of a significant
number of demerits, and Young had not sustained her burden to show that this reason was
pretextual.
To show pretext, Young must show “both that the [Department’s] proffered
explanation was false, and that retaliation was the real reason for the adverse employment
action.” Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494,
500-01 (3d Cir. 1997)); see also Marra, 497 F.3d at 300-01 (quoting Moore, 461 F.3d at
342). Young does not contest that she engaged in most of the underlying conduct for
which she was punished. See Supp. App. 21 (forgetting license and pocktknife); Supp.
App. 26-27 (insubordination); Supp. App. 42-43 (parking in staff parking lot); Supp.
App. 45-47 (speeding ticket). Moreover, Young has not put forth evidence to show that
she was subjected to more discipline than recruits who engaged in similar conduct, and
thus did not show that the Department “treated more favorably similarly situated persons”
who had not filed EEO complaints. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142
F.3d 639, 645 (3d Cir. 1998).
Young presents only general allegations about two comparators who received less
discipline for similar infractions: one recruit who received two demerits from the
Corporal for insubordination, as opposed to the seven Young received, and a second
recruit who used profanity and received no discipline from that Corporal, while Young
15
received two demerits. Even assuming their conduct is comparable, Young provides no
evidence that either of these recruits had disciplinary records similar to hers, and thus she
did not demonstrate that these two other recruits are relevant comparators. See Fuentes v.
Perskie, 32 F.3d 757, 765 (3d Cir. 1994). Thus, the allegations regarding these two
comparators are insufficient to cast doubt on the Department’s reason for Young’s
termination and Young has therefore not shown that her termination was due to her EEO
complaint rather than her repeated violations of Department rules.
III
For the foregoing reasons, we will affirm the order granting summary judgment.
16
Vanaskie, Dissenting
I.
I respectfully dissent because I disagree with the Majority’s conclusion that Young
has not made the requisite showing to withstand summary judgment. Indeed, I find that
the same evidence that the Majority finds sufficient to support a rational inference of
causation on the plaintiff’s prima facie case of retaliation is adequate to support an
inference that unlawful retaliation was the but-for cause of the adverse employment
actions taken against Young. Accordingly, I would reverse the order of the District Court
and remand the case for trial.
II.
The Majority properly concluded that Young proffered sufficient evidence to
support a prima facie case of retaliation. First, she engaged in a protected activity by
filing a complaint with the Department’s EEO unit on April 18, 2010. See Moore v. City
of Phila., 461 F.3d 331, 341 (3d Cir. 2006). Second, the demerits Young received after
making her complaint and her ultimate termination both qualify as materially adverse
employment actions because they are the type of actions that “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Finally, there is a
causal connection between Young’s complaint and the adverse employment actions
because the eight-day period between Young’s EEO complaint and her receipt of seven
demerits for insubordination is an “unusually suggestive” temporal proximity. See
Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (“Where
1
the temporal proximity between the protected activity and the adverse action is unusually
suggestive, it is sufficient standing alone to create an inference of causality and defeat
summary judgment.” (internal quotation marks omitted)); Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (seven days held to be “unusually
suggestive”); Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008) (four
days); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003) (ten
days); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days).
Moreover, drawing all inferences in Young’s favor, Young presented evidence
showing a pattern of antagonism after she filed her EEO complaint. See Robinson v. Se.
Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993) (causation can be established
through a “pattern of antagonism” such as a “constant barrage of written and verbal
warnings . . . and disciplinary action[s] . . . soon after plaintiff’s initial complaints.”). In
the two months that Young worked at the Department prior to filing her EEO complaint,
Young was disciplined only once for the minor infraction of not having her license at roll
call. She received no demerits and only one duty day. In the two months following her
EEO complaint, however, Young was disciplined at least ten times, receiving thirteen
demerits and fourteen duty days. As the Majority points out, many of the incidents
involved minor infractions, such as congregating in the hallway, wearing her tie too short,
and carrying a gym bag that resembled a purse.1 Although some of the incidents did not
1
Notably, Young asserts that she had been carrying the same bag since she began
working for the Department on February 22, 2010, yet was not reprimanded for using it
until shortly after she filed her EEO complaint.
2
result in demerits or duty days, they do tend to show that Young was subjected to more
intense scrutiny following her EEO complaint. And Young was pushed over the
allowable limit for demerits as a direct result of having filed a complaint that resulted in
an investigation. Accordingly, as the Majority concludes, the District Court erred in
holding that Young had failed to produce evidence sufficient to support an inference of
causation on the question of whether she could show a prima facie case of retaliation.
“If the employee establishes this prima facie case of retaliation, the familiar
McDonnell Douglas approach applies in which ‘the burden shifts to the employer to
advance a legitimate, non-retaliatory reason’ for its conduct.” Moore, 461 F.3d at 342
(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997)). Again, I
agree with the Majority that the Department carried its burden by asserting that it issued
Young demerits because of Young’s repeated rule violations and ultimately dismissed her
because she accrued more than fifteen demerits. The Department’s proffer shifts the
burden back to Young, who can now only prevail on her retaliation claim if she
ultimately shows “by a preponderance of the evidence, that ‘the employer’s proffered
explanation was false, and that retaliation was the real reason for the adverse employment
action.’” Marra v. Phila. Hous. Auth., 497 F.3d 186, 300–01 (quoting Moore, 461 F.3d at
342). In other words, Young must convince the factfinder that unlawful retaliation was
the but-for cause of the adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v.
Nasar, 133 S. Ct. 2517, 2533 (2013).
At the summary judgment stage, however, a plaintiff’s claim will survive so long
as the plaintiff proffers some evidence, “direct or circumstantial, from which a factfinder
3
could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious [retaliatory] reason was more likely than not a . . .
determinative cause of the employer’s action.” Daniels v. Sch. Dist. of Phila., 776 F.3d
181, 198–99 (3d Cir. 2015) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994));
see also Moore, 461 F.3d at 342; Krause, 126 F.3d at 501; Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1085–86 (3d Cir. 1996). If the plaintiff makes this showing,
summary judgment is inappropriate because the plaintiff has raised “a factual issue
regarding the employer’s true motivation for discharge.” Jalil, 873 F.2d at 707.
I believe that Young has made such a showing here. In addition to the “unusually
suggestive” temporal proximity and pattern of antagonism discussed in the prima facie
analysis,2 Young also presented evidence that: (1) Captain William Maye “didn’t
understand” why Young received so many demerits for her first insubordination violation
and that he had “never seen something like that before,” Supp. App. 49; (2) Leon
Telesford, a recruit who had not filed an EEO complaint, only received two demerits
compared to Young’s seven for engaging in similar insubordination; and (3) the
Department’s investigation revealed that multiple recruits admitted to making fun of
Chamberlin and that Chamberlin admitted to using profanity in class, yet Young, the only
recruit who filed an EEO complaint, was the sole individual who received any
2
“As our cases have recognized, almost in passing, evidence supporting the prima
facie case is often helpful in the pretext stage and nothing about the McDonnell Douglas
formula requires us to ration the evidence between one stage or the other.” Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000).
4
discipline.3 See Supp. App. 137–44 (summarizing interviews conducted during the
Department’s investigation). In my view, this evidence demonstrates the type of
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that
allow a factfinder to reasonably conclude that the Department’s stated reasons for its
adverse employment actions are “unworthy of credence, and hence infer that the
employer did not act for [the asserted non-retaliatory] reasons.”4 Daniels, 776 F.3d at
199 (quoting Ross, 755 F.3d at 194 n.13).
In sum, Young has presented evidence from which a factfinder could reasonably
conclude that retaliation for filing the EEO complaint was the but-for cause of the
adverse employment actions taken against Young. Therefore, there is a material issue of
fact as to the employer’s “true motivation for discharge,” a matter that is “within the sole
province of the finder of fact and [cannot] be resolved on summary judgment.” Jalil, 783
F.2d at 707, 709. Accordingly, I would reverse the order of the District Court and
remand for further proceedings.
3
In its response to interrogatories, the Department stated that “[u]pon information
and belief, no one other than Plaintiff was disciplined or issued demerits as a result of the
investigation into her complaints. Plaintiff was the only person whom the investigation
revealed violated any policies or regulations.” Supp. App. 298.
4
The Majority disregards the evidence of comparators because they found that
Young had not put forth evidence that the comparator recruits “engaged in similar
conduct” or “had disciplinary records similar to [Young’s.]” Majority Op. at 15–16. The
Majority fails to explain, however, why similar disciplinary records are relevant when the
Department’s Rules and Regulations manual expressly identifies the offenses for which a
recruit’s prior disciplinary history should result in an increased penalty and the offenses
that require only a warning for the first offense—none of which are implicated here. See
Supp. App. 157, 168, 175. Moreover, the Department concedes in its brief that
Telesford’s insubordination was “similar to Ms. Young’s.” Appellee’s Br. at 30.
5