Foster v. Univ. of Maryland-Eastern Shore

Citation787 F.3d 243
Decision Date21 May 2015
Docket NumberNo. 14–1073.,14–1073.
PartiesIris FOSTER, Plaintiff–Appellant, v. UNIVERSITY OF MARYLAND–EASTERN SHORE, Defendant–Appellee. Metropolitan Washington Employment Lawyers Association, Amicus Supporting Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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.

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.

FLOYD, Circuit Judge:

This appeal concerns the effect of the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503 (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.


On March 12, 2007, PlaintiffAppellant Iris Foster was hired by DefendantAppellee the University of Maryland–Eastern Shore (the University) as a campus police officer.1 Her 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, 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 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

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. 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, ––– U.S. ––––, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), which clarified the causation standard for Title VII retaliation claims. The district court5 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 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.


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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). We are required to view the facts and all justifiable inferences arising therefrom in the light 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, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam).


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...

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