Colette Wilcox v. Nathan Lyons

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-1005

COLETTE MARIE WILCOX,

Plaintiff - Appellant,

v.

NATHAN H. LYONS, Esq.; PHILLIP C. STEELE, Esq.

Defendants - Appellees,

and

CARROLL COUNTY, VIRGINIA,

Defendant.

Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:17-cv-000530-MFU-RSB)

Argued: January 30, 2020 Decided: August 11, 2020

Before NIEMEYER, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge
Niemeyer and Judge Quattlebaum joined.

ARGUED: Thomas E. Strelka, STRELKA LAW OFFICE, Roanoke, Virginia, for
Appellant. Henry S. Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap, Virginia,
for Appellees. ON BRIEF: L. Leigh R. Strelka, N. Winston West, IV, STRELKA LAW
OFFICE, Roanoke, Virginia, for Appellant.

2
RUSHING, Circuit Judge:

Collette Marie Wilcox, a former Deputy Commonwealth Attorney for Carroll

County, Virginia, sued her former employer, contending that she was fired in retaliation

for reporting alleged sex discrimination. Wilcox sought to proceed solely pursuant to 42

U.S.C. § 1983, on the theory that her public employer’s retaliation violated the Fourteenth

Amendment’s Equal Protection Clause. In line with our precedent and the majority of

courts to consider the question, we conclude that a pure retaliation claim is not cognizable

under the Equal Protection Clause. We therefore affirm the district court’s dismissal of

Wilcox’s retaliation claim.

I.

A.

Nathan Lyons, the elected Commonwealth Attorney for Carroll County, hired

Wilcox to serve as a Deputy Commonwealth Attorney in May 2014. 1 Following an

incident on November 30, 2015, Wilcox reported alleged sex discrimination to Lyons. The

incident occurred when one of Wilcox’s colleagues recounted his efforts to protect a female

relative from “rough-housing and unwanted violence.” J.A. 138. During this conversation,

another of Wilcox’s colleagues, defendant Phillip Steele, forcefully struck Wilcox on her

right arm or shoulder with a closed fist. Steele accompanied his strike with a derogatory

comment toward women. Taken aback, Wilcox told Steele not to “use [her] as

1
We take the facts as alleged in Wilcox’s complaint, which we accept as true on a
motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). We therefore
do not consider the defendants’ attempts to add to the factual record.
3
demonstrative evidence of violence against women.” J.A. 138. She asked Steele to back

away from her, but he did not comply. Wilcox feared he might attempt to hit her again.

At this point, Lyons entered the room. Wilcox uttered a “nervous joke” about filing a

worker’s compensation claim for battery and began to leave. J.A. 138. Before Wilcox had

made a complete exit, a female colleague entered the room, and Wilcox exclaimed to her

that there was “hostility in the room against women.” J.A. 139.

Later that afternoon, Wilcox sent Lyons an email describing the incident. The next

day, Wilcox met with Lyons to discuss her email. During that meeting, she expressed her

opinion that the Commonwealth Attorney’s Office promoted, or at least tolerated,

discrimination against women. Lyons apologized “for the Office hostility” but did not take

“affirmative steps” to reprimand Steele or correct his behavior. J.A. 140. In the weeks

after the incident, Wilcox perceived that her colleagues were “distanc[ing] themselves”

from her. J.A. 140.

Thereafter, on several occasions in January 2016 Wilcox missed or was late to work

due to bad weather or illness. At one point, Lyons asked Wilcox to inform him about her

absences by phone rather than text message but added that it was “no big deal.” J.A. 141.

At the end of January, Wilcox submitted her monthly timesheet to Lyons. Court

proceedings had run long one of the days Wilcox was late to work, so although she had

arrived late, she made a notation on her timesheet explaining she had worked the equivalent

of a full day.

On February 16, 2016, Lyons directed Wilcox to resubmit her January timesheet to

reflect sick leave for part of the day on which court proceedings had run late. The next

4
day, Lyons called Wilcox into his office and informed her that she had used too much

leave, despite his approval of her leave requests. Lyons then told Wilcox she was in

violation of a “state compensation board policy” concerning leave and he was going to

issue her a written reprimand. J.A. 142. Wilcox told Lyons she did not know about the

policy to which Lyons was referring and asked why Carroll County’s leave policy was not

applicable. Lyons handed Wilcox the letter of reprimand and directed her to sign it.

Wilcox asked if she could read the letter first and requested a copy of the pertinent policy

to review. In response, Lyons turned his back, raised his voice, and told Wilcox she was

fired for insubordination.

B.

Wilcox subsequently filed this lawsuit against Lyons, Steele, and Carroll County.

She alleged sex discrimination, hostile work environment, and retaliation in violation of

the Equal Protection Clause, as well as deprivation of a liberty interest in violation of the

Due Process Clause and common law battery. The defendants moved to dismiss. The

district court dismissed with prejudice all claims against Carroll County and the hostile

work environment claim. The court also rejected Wilcox’s claims for sex discrimination,

retaliation, and deprivation of a liberty interest but granted Wilcox leave to amend those

claims.

Wilcox filed an amended complaint in which she dropped her allegation of sex

discrimination, asserted additional facts to support her claim for deprivation of a liberty

interest, and reasserted her retaliation and battery claims. Pertinent for this appeal, Wilcox

did not amend her retaliation claim but instead sought reconsideration of the district court’s

5
prior order dismissing that claim. The district court denied Wilcox’s motion for

reconsideration. 2 Briefly surveying our precedent regarding Section 1983 retaliation

claims, the court observed that it “is far from certain” that “her retaliation claim alleging

adverse action on account of her complaint of discrimination is actionable under § 1983 as

a violation of the Equal Protection Clause.” J.A. 126–127. However, the court determined

it need not reach that issue because, even assuming such a claim were viable, Wilcox had

failed to state a prima facie case for retaliation.

Drawing on the requirements for a Title VII retaliation claim, the district court

concluded that Wilcox failed to sufficiently allege a causal relationship between her

protected activity and her termination. Wilcox “relie[d] heavily on temporal proximity” to

allege causation, but the court concluded that the two-and-a-half month time span between

her report of alleged sex discrimination and her termination was too long to establish

causation by temporal proximity alone. J.A. 129. Finding that Wilcox had not pleaded

any other evidence of retaliatory animus, the court held that the complaint failed to state a

claim for retaliation.

Wilcox appealed. On appeal, she argues that her retaliation claim is actionable

under Section 1983 as a violation of the Equal Protection Clause and that she has

sufficiently alleged causation to support her retaliation claim. We review the district

2
The district court subsequently dismissed with prejudice the claim for deprivation
of a liberty interest and, in the absence of any viable federal cause of action, declined to
exercise supplemental jurisdiction over the state-law battery claim. J.A. 169–180. That
order disposed of all of Wilcox’s remaining claims, thereby ripening for appeal the
dismissal of her retaliation claim.
6
court’s dismissal de novo. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010).

II.

As noted above, the district court assumed for the sake of argument that Wilcox’s

retaliation claim was cognizable under the Equal Protection Clause but determined that she

failed to sufficiently allege causation to support her claim. We likewise first consider

whether, assuming such a claim is cognizable, Wilcox has sufficiently pleaded it in her

complaint. Cf. Hagans v. Lavine, 415 U.S. 528, 547 (1974) (reiterating the “ordinary rule

that a federal court should not decide federal constitutional questions where a dispositive

nonconstitutional ground is available”).

The district court borrowed the prima facie case framework from the Title VII

retaliation context. Under that framework, to establish a prima facie case of retaliation, a

plaintiff must show “(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.” Foster v. Univ. of Md.-E. Shore, 787 F.3d

243, 250 (4th Cir. 2015) (brackets and internal quotation marks omitted). Although we

have not drawn a bright temporal line, we have observed that two-and-a-half months

between the protected activity and the adverse action “is sufficiently long so as to weaken

significantly the inference of causation between the two events” in the absence of other

evidence of retaliation. King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003); see id. at

151 & n.5 (nevertheless concluding that temporal proximity was sufficient to establish

causation in that case because the end of the school year was “the natural decision point”);

7
cf. Foster, 787 F.3d at 253 (holding complaints of discrimination one month before

termination sufficient to create jury question regarding causation prong of prima facie

case).

But here, Wilcox has alleged additional facts suggesting retaliation, namely Lyons’s

alleged overreaction in firing Wilcox for insubordination in response to her request for

clarification about the attendance policy and time to read the letter of reprimand. A

disproportionate response to a minor workplace infraction suggests pretext and can bolster

the causation element of a plaintiff’s prima facie case. See, e.g., Hernandez v. Fairfax

Cnty., 719 Fed. App. 184, 189–190 (4th Cir. 2018) (per curiam). Considered together,

Wilcox’s allegations about Lyons’s overreaction in the reprimand meeting and the two-

and-a-half month span between Wilcox’s complaint and her termination are sufficient to

plead causation at this preliminary stage.

Thus, if Wilcox’s retaliation claim were governed by the Title VII framework, her

claim would survive dismissal. But Wilcox did not plead a Title VII claim; she has

advanced only a Section 1983 claim alleging a violation of the Equal Protection Clause,

which she argues should follow the Title VII pattern. We therefore are squarely presented

with the question whether a pure retaliation claim is cognizable as a violation of the Equal

Protection Clause.

III.

Public employees enjoy the protection of antidiscrimination statutes such as Title

VII as well as the protection of the Constitution, which they may enforce against their

8
employers in civil actions pursuant to 42 U.S.C. § 1983. 3 See, e.g., Holder v. City of

Raleigh, 867 F.2d 823, 828 (4th Cir. 1989) (“We have held that Title VII is not an exclusive

remedy for employment discrimination by a public entity. A state employee may still bring

a Fourteenth Amendment challenge under 42 U.S.C. § 1983 to discriminatory employment

decisions.”). We have recognized as cognizable, for example, claims by public employees

alleging that their employers violated their rights under the First Amendment and the Due

Process and Equal Protection Clauses of the Fourteenth Amendment. See, e.g., Suarez

Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000) (First Amendment); Stone v.

Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988) (Due Process); Talbert v.

City of Richmond, 648 F.2d 925, 929 (4th Cir. 1981) (Equal Protection).

The Equal Protection Clause of the Fourteenth Amendment commands that “[n]o

State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. This constitutional imperative of equal protection does not

entirely remove the States’ power to classify but “keeps governmental decisionmakers

from treating differently persons who are in all relevant respects alike.” Nordlinger v.

Hahn, 505 U.S. 1, 10 (1992). Distinctions on the basis of sex or gender are subject to

heightened scrutiny under equal protection analysis. See Knussman v. Maryland, 272 F.3d

3
Section 1983 provides that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.”

9
625, 635 (4th Cir. 2001). 4 Thus, this Court has recognized that the Equal Protection Clause

confers on public employees “a right to be free from gender discrimination that is not

substantially related to important governmental objectives.” Beardsley v. Webb, 30 F.3d

524, 529 (4th Cir. 1994); see Davis v. Passman, 442 U.S. 228, 234–235 (1979). Intentional

sex discrimination and sexual harassment against public employees by persons acting

under color of state law violate the Equal Protection Clause and are actionable under

Section 1983. Beardsley, 30 F.3d at 529; cf. J.E.B. v. Alabama, 511 U.S. 127, 130–131

(1994) (“Intentional discrimination on the basis of gender by state actors violates the Equal

Protection Clause, particularly where . . . the discrimination serves to ratify and perpetuate

invidious, archaic, and overbroad stereotypes about the relative abilities of men and

women.”).

Neither our Court nor the Supreme Court has recognized an equal protection right

to be free from retaliation. To the contrary, we have previously held that “‘[a] pure or

generic retaliation claim . . . simply does not implicate the Equal Protection Clause.’”

Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (quoting Watkins v.

Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997)). Instead, we have consistently considered

retaliation claims brought under Section 1983 to be more properly characterized as claims

asserting a violation of the First Amendment. See Martin v. Duffy, 858 F.3d 239, 252 (4th

4
Distinctions on the basis of race, by contrast, are subject to the strictest judicial
scrutiny because “‘[r]acial classifications are simply too pernicious to permit any but the
most exact connection between justification and classification.’” H.B. Rowe Co. v. Tippett,
615 F.3d 233, 240–241 (4th Cir. 2010) (quoting Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 229 (1995)).
10
Cir. 2017); Kirby v. Elizabeth City, 388 F.3d 440, 447 (4th Cir. 2004); Edwards, 178 F.3d

at 250. As we have explained, allegations that an employer subjected an employee to

adverse consequences “in retaliation for his speech are, at their core, free-speech retaliation

claims that do ‘not implicate the Equal Protection Clause.’” Kirby, 388 F.3d at 447

(quoting Edwards, 178 F.3d at 250). 5 When an employee experiences an adverse

employment action after “voic[ing] a grievance” to her public employer, “[a] violation of

the First Amendment’s protection of the right to speak out is a necessary predicate to a

claim of pure retaliation.” Beardsley, 30 F.3d at 530; cf. Martin, 858 F.3d at 252 (affirming

dismissal of equal protection claim because prisoner’s claim of retaliation for filing

grievance and participating in grievance resolution process was “best characterized as a

mere rewording of his First Amendment retaliation claim”).

Wilcox acknowledges this body of precedent but contends that the subject matter of

her complaint—sex discrimination and harassment—makes her claim of retaliation in

response to that complaint cognizable under the Equal Protection Clause. In other words,

she asks us to expand the reach of the Fourteenth Amendment in claims arising under

Section 1983. We are not persuaded.

5
In Kirby, the employee advanced two equal protection claims: first, that his
employer was actually motivated to treat him differently in retaliation for his speech, and
second, that his employer had no rational basis for treating him differently. 388 F.3d at
447. Wilcox does not argue that Lyons lacked any “conceivable rational basis” to terminate
her. Id. at 448. Nor has she alleged that the defendants, without a rational basis, treated
her discrimination complaint differently from other employees’ discrimination complaints.
Rather, she contends only that Lyons fired her in retaliation for her complaint of
discrimination.
11
 The Supreme Court has subjected discrimination on the basis of sex to heightened

equal protection scrutiny because differences between the sexes are so rarely a legitimate

reason to treat otherwise similarly situated people differently. See Frontiero v. Richardson,

411 U.S. 677, 686–687 (1973) (“[T]he sex characteristic frequently bears no relation to

ability to perform or contribute to society.”); Craig v. Boren, 429 U.S. 190, 198–199 (1976)

(recognizing that “classifications by gender” have served as “inaccurate prox[ies]” for

other classifications, rooted in stereotypes and “outdated misconceptions” about women).

The Court views classifications based on sex or gender with suspicion because of their

roots in our Nation’s “long and unfortunate history of sex discrimination.” Frontiero, 411

U.S. at 684; see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979)

(“Classifications based upon gender, not unlike those based upon race, have traditionally

been the touchstone for pervasive and often subtle discrimination.”). Moreover, “sex, like

race and national origin, is an immutable characteristic determined solely by the accident

of birth,” therefore “the imposition of special disabilities upon the members of a particular

sex because of their sex would seem to violate the basic concept of our system that legal

burdens should bear some relationship to individual responsibility.” Frontiero, 411 U.S.

at 686 (internal quotation marks omitted). Thus, state action that causes “different

treatment [to] be accorded to [individuals] on the basis of their sex . . . establishes a

12
classification subject to scrutiny under the Equal Protection Clause.” Reed v. Reed, 404

U.S. 71, 75 (1971). 6

Retaliation for reporting alleged sex discrimination imposes negative consequences

on an employee because of the employee’s report, not because of the employee’s sex. The

very premise of a retaliation claim is that the employer has subjected an employee to

adverse consequences in response to her complaint of discrimination. For example, to

establish a prima facie case of retaliation under Title VII, a plaintiff must prove: (1) that

she engaged in a protected activity, which includes complaining to her superior about sex

discrimination or harassment; (2) that her employer took an adverse action against her; and

(3) that there was “a causal link between the two events.” Boyer-Liberto v. Fontainebleau

Corp., 786 F.3d 264, 281 (4th Cir. 2015) (internal quotation marks omitted). The necessary

causal link is between the employee’s complaint and the adverse action, not between her

sex and the adverse action. See Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d

856, 868 (7th Cir. 2018) (“[A]ll anti-retaliation provisions . . . provide[] protections not

because of who people are, but because of what they do.”). A retaliation claim of this type

thus does not implicate disparate treatment on the basis of a classification forbidden by the

Equal Protection Clause.

6
This is not to say that all sex-based classifications are unconstitutional. “The two
sexes are not fungible,” and “[p]hysical differences between men and women . . . are
enduring.” United States v. Virginia, 518 U.S. 515, 533 (1996) (internal quotation marks
omitted). Indeed, “[i]nherent differences between men and women” need not be ignored
or suppressed but rather “remain cause for celebration.” Id. Classifications based on sex,
however, may not be used, “as they once were, to create or perpetuate the legal, social, and
economic inferiority of women.” Id. at 534.
13
 Consider a male employee who has not personally experienced discrimination but

denounces his superior’s misogyny and is punished for doing so. See Laughlin v. Metro.

Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (identifying protected activities

under Title VII, including “voicing one’s opinions in order to bring attention to an

employer’s discriminatory activities”); cf., e.g., Gorzynski v. JetBlue Airways Corp., 596

F.3d 93, 110 (2d Cir. 2010) (holding that non-African American plaintiff had established

a prima facie claim of Title VII retaliation stemming from “concerns she expressed on

behalf of an African–American coworker”). His superior’s retaliation is a product of the

employee voicing his opinion, not his sex. Cf. CBOCS W., Inc. v. Humphries, 553 U.S.

442, 460 (2008) (Thomas, J., dissenting) (“When an individual is subjected to reprisal

because he has complained about racial discrimination, the injury he suffers is not on

account of his race; rather, it is the result of his conduct.”). The sex of the complainant is

irrelevant, because it is not the complainant’s sex that motivated the employer’s retaliatory

adverse action. See Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 419 (7th Cir.

1988); cf. Love-Lane v. Martin, 355 F.3d 766, 788 (4th Cir. 2004) (plaintiff who alleged

she was demoted “in retaliation for her vocal opposition to race discrimination” had a

viable First Amendment claim but “none of [the plaintiff’s] evidence that she was

[demoted] in retaliation for her speech suggests that she was [demoted] because of her

race,” so summary judgment was warranted on her racial discrimination claims).

Likewise here, Wilcox has alleged that the defendants fired her in retaliation for her

complaint of sexual harassment and discrimination, not because she is a woman. These

allegations do not implicate an impermissible classification or discrimination on the basis

14
of Wilcox’s membership in a class defined by an immutable characteristic. Rather, Wilcox

alleges she suffered adverse consequences because of her speech and conduct: reporting

alleged harassment and discrimination. In such a case, the Equal Protection Clause’s

concern with treating similarly situated people differently on the basis of sex is not

implicated. See Yatvin, 840 F.2d at 418 (“Although sex discrimination by state agencies

has been held to violate the equal protection clause, retaliating against a person for filing

charges of sex discrimination is not the same as discriminating against a person on grounds

of sex . . . .”).

This is not to say that retaliation can never be evidence of sex discrimination. For

example, if a public employer retaliated against women who filed complaints or

participated in an investigation but not against men who did the same, the women may

have a cognizable Equal Protection Claim. That claim, however, would not be for

retaliation but for straightforward sex discrimination, because their employer was treating

similarly situated employees differently on the basis of sex. See id. Similarly, continued

sexual harassment and adverse treatment of a female employee unlike the treatment

accorded male employees remains actionable as a violation of the Equal Protection Clause

even when the sex discrimination and harassment continue after, and partially in response

to, the female employee’s report of prior discrimination and harassment. See Beardsley,

30 F.3d at 530. The employee’s claim in such a case is not “a claim of pure retaliation,”

id., but instead implicates the basic equal protection right to be free from sex discrimination

that is not substantially related to important governmental objectives. Id. at 529; see also

15
Watkins, 105 F.3d at 1354 (distinguishing a “pure or generic retaliation claim” from a

situation like that in Beardsley).

A “pure or generic retaliation claim,” however, even if premised on complaints of

sex discrimination, is not cognizable under the Equal Protection Clause. Edwards, 178

F.3d at 250 (internal quotation marks omitted). To the extent a public employee contends

she suffered adverse consequences for expressing complaints or reporting discrimination

to her employer, her claim arises under the First Amendment. See Campbell v. Galloway,

483 F.3d 258, 266–268, 272 (4th Cir. 2007); Watkins, 105 F.3d at 1354. To the extent a

public employee links an alleged retaliatory action to her gender, that allegation would

constitute part of an equal protection discrimination claim, not a freestanding retaliation

claim. See Watkins, 105 F.3d at 1354. Wilcox has not made such an allegation, nor has

she pleaded a First Amendment action. The “right to be free from retaliation for protesting

sexual harassment and sex discrimination” upon which Wilcox solely relies “is a right

created by Title VII, not the equal protection clause.” Gray v. Lacke, 885 F.2d 399, 414

(7th Cir. 1989); see also Boyd v. Ill. State Police, 384 F.3d 888, 898 (7th Cir. 2004) (“[T]he

right to be free from retaliation may be vindicated under the First Amendment or Title VII,

but not the equal protection clause.”). To be clear: these existing legal avenues for

challenging public employer retaliation remain open to employees; we simply decline to

create a new one under the auspices of the Fourteenth Amendment.

In reaching this conclusion, we join the vast majority of circuit courts to have

considered the question. At least six of our sister circuits have held that the Equal

Protection Clause cannot sustain a pure claim of retaliation. See Thomas v. Indep. Twp.,

16
463 F.3d 285, 298 n.6 (3d Cir. 2006) (retaliation for complaint of race discrimination);

Thompson v. City of Starkville, 901 F.2d 456, 468 (5th Cir. 1990) (retaliation for complaints

about improper promotions and misconduct by other police officers); R.S.W.W., Inc. v. City

of Keego Harbor, 397 F.3d 427, 439–440 (6th Cir. 2005) (retaliation for complaint of

police harassment); Boyd, 384 F.3d at 898 (retaliation for filing charges of race

discrimination); Yatvin, 840 F.2d at 418 (retaliation for filing charges of sex

discrimination); Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir. 2006)

(retaliation for complaint of national origin discrimination); Teigen v. Renfrow, 511 F.3d

1072, 1084–1086 (10th Cir. 2007) (retaliation for complaints about violations of state

employment laws); Watkins, 105 F.3d at 1354 (retaliation for complaints of sexual and

racial harassment); see also Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1237 (8th Cir.

2013) (observing that other courts have rejected equal protection retaliation claims and

concluding that “no clearly established right exists under the equal protection clause to be

free from retaliation” (internal quotation marks omitted)). And a host of district courts—

17
both within our circuit 7 and beyond (including in circuits that have not yet resolved this

question) 8—have reached the same conclusion.

Only the Second Circuit has reached a contrary conclusion, in Vega v. Hempstead

Union Free School District, 801 F.3d 72 (2d Cir. 2015), and Wilcox urges us to adopt its

reasoning. But we do not find Vega persuasive.

After distinguishing contrary circuit precedent, the Vega court offered two primary

reasons undergirding its conclusion that retaliation is actionable under the Equal Protection

Clause. First, the court observed that “an ‘equal protection claim [largely] parallels [a

plaintiff’s] Title VII claim,’” and found “no sound reason to deviate from this principle for

a retaliation claim.” Id. at 82 (second alteration in original) (quoting Feingold v. New York,

366 F.3d 138, 159 (2d Cir. 2004)). While Title VII’s antidiscrimination provision overlaps

the ambit of the Equal Protection Clause, and we have applied a similar framework in

7
See, e.g., Whitehurst v. Bedford Cnty. Sch. Bd., No. 6:19-cv-00010, 2020 WL
535962, at *12–13 (W.D. Va. Feb. 3, 2020); White v. Gaston Cnty. Bd. of Educ., No. 3:16-
cv-00552-MOCDSC, 2017 WL 220134, at *3–4 (W.D.N.C. Jan. 18, 2017); Johnson v.
Scott Cnty. Sch. Bd., No. 2:12-cv-00010, 2012 WL 4458150, at *3 (W.D. Va. July 31,
2012); Bailey v. Fairfax Cnty. Va., No. 1:10-cv-1031, 2011 WL 3793329, at *2 (E.D. Va.
Aug. 18, 2011); Byrd v. Md. Dep’t of Health & Mental Hygiene - State Bd. of Dental
Exam’rs, No. WMN-07-2740, 2008 WL 11509375, at *7 (D. Md. Apr. 16, 2008); Phillips
v. Mabe, 367 F. Supp. 2d 861, 870–871 (M.D.N.C. 2005).
8
See, e.g., Harrison v. Fed. Bureau of Prisons, 298 F. Supp. 3d 174, 181 (D.D.C.
2018); Roy v. Correct Care Sols., LLC, 321 F. Supp. 3d 155, 170 n.6 (D. Me. 2018), rev’d
in part on other grounds, 914 F.3d 52 (1st Cir. 2019); see also Benson v. City of Lincoln,
No. 4:18-cv-3127, 2019 WL 1766159, at *9 (D. Neb. Apr. 22, 2019); Zimmerman v. Ark.
Dep’t of Fin. & Admin., No. 5:17-cv-00160-JM, 2018 WL 700850, at *3 (E.D. Ark. Feb.
2, 2018); Mazzeo v. Gibbons, No. 2:08-cv-01387-RLH, 2010 WL 4384207, at *5 (D. Nev.
Oct. 28, 2010); Occhionero v. City of Fresno, No. CV F 05-1184 LJO SMS, 2008 WL
2690431, at *7–8 (E.D. Cal. July 3, 2008); Rodriguez-Melendez v. Rivera, No. CIV. 97-
1258 SEC, 1998 WL 151870, at *3–4 (D.P.R. Mar. 23, 1998).
18
analyzing workplace protected-characteristic discrimination claims under each, the scope

of the two laws is not identical. See United Steelworkers of Am., AFL-CIO-CLC v. Weber,

443 U.S. 193, 206 n.6 (1979) (“Title VII . . . was not intended to incorporate and

particularize the commands of the . . . Fourteenth Amendment[].”); Johnson v. Transp.

Agency, Santa Clara Cnty., 480 U.S. 616, 627–628 n.6 (1987) (rejecting the notion that

“the obligations of a public employer under Title VII must be identical to its obligations

under the Constitution”). Title VII, for instance, permits litigants to assert discrimination

claims under a “disparate impact” theory, but such claims are not cognizable in the context

of the Equal Protection Clause. Compare Griggs v. Duke Power Co., 401 U.S. 424, 431

(1971) (Title VII “proscribes not only overt discrimination but also practices that are fair

in form, but discriminatory in operation.”), with Washington v. Davis, 426 U.S. 229, 242

(1976) (“Disproportionate impact . . . [s]tanding alone” does not violate Equal Protection

Clause.).

Another critical difference between Title VII and the Equal Protection Clause

directly undermines the rationale relied upon by the court in Vega: Title VII contains a

provision—separate from its antidiscrimination provision—expressly prohibiting

retaliation. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for

an employer to discriminate against any of his employees . . . because [the employee] has

opposed any practice made an unlawful employment practice by this subchapter . . . .”);

see, e.g., Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (outlining the elements of a

Title VII retaliation claim). The Equal Protection Clause contains no comparable

antiretaliation language. And as the Supreme Court has explained, Title VII’s

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antidiscrimination and antiretaliation provisions “differ not only in language but in purpose

as well.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). “The

substantive provision seeks to prevent injury to individuals based on who they are, i.e.,

their status. The antiretaliation provision seeks to prevent harm to individuals based on

what they do, i.e., their conduct.” Id. We cannot read this additional, and materially

different, language and purpose into the Equal Protection Clause.

Second, the Vega court reasoned that “retaliation is a form of discrimination,”

relying on the Supreme Court’s interpretation of Title IX in Jackson v. Birmingham Board

of Education, 544 U.S. 167 (2005). Title IX, which “prohibits sex discrimination by

recipients of federal education funding” is a “broadly written general prohibition on

discrimination.” Jackson, 544 U.S. at 173, 175. The statute declares that “[n]o person in

the United States shall, on the basis of sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any education program or activity

receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The question in Jackson was

whether Title IX’s implied private right of action encompasses claims of retaliation. The

Court held that it did, relying on its “repeated holdings construing ‘discrimination’ under

Title IX broadly,” Congress’s awareness of precedent issued shortly before Title IX’s

passage, the absence of language limiting the statute to “discrimination on the basis of such

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individual’s sex,” and Congress’s purposes in enacting the statute. Jackson, 544 U.S. at

173–181. 9

We do not read the Court’s decision in Jackson to suggest that every statute

prohibiting discrimination—much less the Constitution’s aged guarantee of equal

protection—also necessarily incorporates a right to be free from retaliation for reporting

discrimination. As an initial matter, that proposition is difficult to square with Title VII,

which contains an antidiscrimination provision and a separate express antiretaliation

provision. If a prohibition on discrimination always encompassed retaliation, Title VII’s

antiretaliation provision would be mere surplusage. Such an interpretation flies in the face

of commonly applied canons of statutory construction. See In re Total Realty Mgmt., LLC,

706 F.3d 245, 251 (4th Cir. 2013). But, more importantly, it illustrates that—at least in the

mind of Congress—retaliation is not always included within the conceptual ambit of

discrimination. See Gomez-Perez, 553 U.S. at 495 (Roberts, C.J., dissenting) (explaining

that although “broad bans on discrimination, standing alone, may be read to include a

retaliation component,” differences in the “text and structure of” the ban, along with factors

such as “the broader . . . scheme of which [the ban] is a part,” can counsel in favor of the

opposite conclusion—that retaliation is not included). The better understanding is that

9
The Supreme Court has also construed the federal employer provision of the Age
Discrimination in Employment Act and 42 U.S.C. § 1981 to encompass retaliation, again
focusing on the particular language and history of the statutes and relevant precedent. See
Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008) (ADEA); CBOCS, 553 U.S. at 445
(Section 1981).
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Jackson and cases like it turned on the text and history of the statutes being interpreted—

neither of which they share with the Equal Protection Clause.

In fact, the Supreme Court has specifically held that Title IX’s antidiscrimination

imperative is not coterminous with the Equal Protection Clause. In Fitzgerald v.

Barnstable School Committee, the Court engaged in a “comparison of the substantive rights

and protections guaranteed” by Tile IX and the Equal Protection Clause and determined

that “Title IX’s protections are narrower in some respects and broader in others.” 555 U.S.

246, 256 (2009). As the Court explained, Title IX applies in circumstances in which the

Equal Protection Clause does not, as well as vice versa, and “[e]ven where particular

activities and particular defendants are subject to both Title IX and the Equal Protection

Clause” the pertinent standards provided by each “may not be wholly congruent.” Id. at

257.

We therefore cannot agree with the Vega court’s conclusion that because the term

“discrimination” in Title IX encompasses retaliation, the Equal Protection Clause’s

prohibition on unjustified classifications based on sex must also encompass pure claims of

retaliation based not on sex but on an employee’s speech. The guarantee of equal treatment

for similarly situated persons is conceptually distinct from a right to be free from retaliation

for voicing complaints of discrimination. While the latter may serve to guard and secure

the former primary objective, the enforcement mechanism is distinct from the right itself.

See Burlington N., 548 U.S. at 63. It does not follow that because discrimination

sometimes includes retaliation in other contexts, the Equal Protection Clause must have the

same remedial scope. We decline to break new constitutional ground based on the

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interpretation of statutes with different histories, different structures, and different text than

the Fourteenth Amendment.

* * *

Because Wilcox has pleaded her retaliation claim solely under the Equal Protection

Clause, she has failed to present a cognizable claim. The district court therefore did not

err when it granted the defendants’ motion to dismiss. Accordingly, for the reasons set

forth in this opinion, the decision of the district court is

AFFIRMED.

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