Navigating the Murky Waters of Proving Causation

Deciphering the legal and evidentiary burdens of proving causation in discrimination and retaliation cases proves to be a continuing challenge for plaintiffs’ and defendants’ lawyers alike, as well as courts. The Supreme Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) and University of Texas Southern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) articulating the causation standards in employment discrimination and retaliation cases have utterly failed to create bright-line, well-defined rules, as evidenced in recent cases which reveal this quagmire. In Rochon v. Lynch, No. 2013-0131 (D.D.C. Oct. 9, 2015), the plaintiff, a retired FBI agent, alleged that the FBI refused to issue to him an identification card that would enable him to carry a concealed weapon when he travels, in retaliation for his prior protected activity under Title VII. The magistrate judge issued a Report and Recommendation denying the defendant’s motion for summary judgment, finding that the defendant’s articulation of its legitimate reason for denying plaintiff the identification card, coupled with the plaintiff’s challenge to the proffered justification and attack on the testimony of the defendant’s witnesses, precluded summary judgment. Id. at 16. The District Court reversed and granted defendant’s motion for summary judgment, holding that a plaintiff must provide evidence that the employer’s asserted non-discriminatory reason was not the actual reason (i.e., pretextual), and evidence that the employer intentionally discriminated or retaliated against the employee. Id. at 15 (citing Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)). With regard to the second prong, the District Court found that the plaintiff had not presented sufficient evidence such that “no reasonable jury could find that Rochon was denied the ID card because of his prior protected activity.” Id. at 9 (emphasis added).

In Hernandez-Echevarria v. Walgreens de Puerto Rico, Inc., No. 13-1757, 2015 WL 4644340 (D. P.R. Aug. 4, 2015), a disability discrimination case brought under the Americans with Disabilities Act, the District Court rejected the defendant’s reliance on Gross, 557 U.S. 167, which held that under the Age Discrimination in Employment Act, a plaintiff must “‘prove that age was the ‘but-for’ cause of the employer’s adverse decision.’” Hernandez-Echevarria, 2015 WL 4644340 at *7 (quoting Gross, 557 U.S. at 176). The District Court found defendant’s contention that the Supreme Court had extended the same standard to ADA claims was incorrect as a matter of law. Id.

The ADA was amended in 2008, the District Court explained, to prohibit “discriminat[ion] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112 (emphasis added). “Congress amended ‘the causation language for ADA discrimination from ‘because of’ to ‘on the basis of’…therefore making the ADA discrimination claim less similar to a Title VII retaliation claim.’” Hernandez-Echevarria, 2015 WL 4644340 at *7 (citations omitted). Similarly, the District Court rejected the defendant’s reliance on Nassar, stating the “Supreme Court’s reference in Nassar to the ADA’s prohibition of disability discrimination is nothing more than dicta.” Hernandez-Echevarria, 2015 WL 4644340 at *7.

In Nassar, the Supreme Court considered Congress’s approach to retaliation claims under the ADA as evidence that Title VII retaliation claims could not be proved using a mixed-motive analysis. Nassar, 133 S. Ct. at 2531. Nassar explained that Congress included an express anti-retaliation provision in the ADA (“No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . .” 42 U.S.C. § 12203) (emphasis added), just one year before Congress enacted the Civil Rights Act of 1991, which included § 2000e-2(m). Section 2000e-2(m) provides that “[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.” 42 U.S.C. § 2000e-2(m). Thus, the Nassar Court concluded, Congress must have intentionally excluded anti-retaliation from § 2000e-2(m). Nassar, 133 S. Ct. at 2531. Consequently, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful action would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. at 2533.

What the District Court in Hernandez-Echevarria did not do was to explain that Nassar was inapposite because the claim in Hernandez-Echevarria was not one of retaliation for opposing unlawful disability discrimination; rather the claim was for disability discrimination itself, for which the 2008 ADA Amendments permit “the use of ‘indirect evidence’ and ‘mixed motives.’” Hernandez-Echevarria, 2015 WL 4644340 at *8 (citations omitted).

Not only are some lawyers and courts confused as to whether the “but-for” standard or the mixed-motive standard applies to discrimination and retaliation cases (under Gross, the “but-for” standard applies to ADEA cases; under Nassar, the “but-for” standard applies to Title VII retaliation cases, but not to Title VII discrimination cases, for which the mixed-motive analysis applies; under Hernandez-Echevarria, the mixed-motive analysis applies to ADA cases), but they are also confused about whether the familiar evidentiary burden-shifting paradigm articulated in McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973) applies. In Walker v. Department of Homeland Security, 798 F.3d 1085 (D.C. Cir. 2015), the District of Columbia Circuit stated that, “[d]iscrimination and retaliation claims are subject to the familiar, burden-shifting framework of McDonnell-Douglas Corp. v. Green . . . .” Id. at 1091 (citations omitted). “A plaintiff must first establish her prima facie case . . . . If the plaintiff clears that hurdle, the burden shifts to the employer to identify the legitimate, non-discriminatory or non-retaliatory reason on which it relied in taking the complained-of action . . . . Assuming the employer proffers such a reason, the ‘central question’ at summary judgment becomes whether ‘the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory or non-retaliatory reason was not the actual reason and that the employer intentionally discriminated or retaliated against the employee.’” Id. at 1092 (internal citations omitted).

However, the burden-shifting analysis does not apply to all discrimination claims. Rather, in Gross, the Supreme Court stated that, “[t]his Court has never held that this burden-shifting framework applies to ADEA claims.” Gross, 557 U.S. at 174. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” Id. The Fifth Circuit apparently did not catch that exception. In Salazar v. Cargill Meat Solutions Corp., No. 15-10097 (5th Cir. Oct. 8, 2015), a case of age discrimination under the ADEA, the Fifth Circuit applied the burden-shifting analysis to the plaintiff’s age discrimination claims. Id. at 4-5. And, even though both ADEA and Title VII retaliation claims are subject to the “but-for” causation standard, and the burden-shifting paradigm does not apply to ADEA claims (per Gross), the burden-shifting paradigm does apply to Title VII retaliation claims (per Walker).

Where the burden-shifting analysis applies, to further complicate matters, it is not always clear whether courts require a plaintiff to prove only that the employer’s discriminatory reason was pretextual, or whether a plaintiff must also prove that the employer intentionally discriminated against the plaintiff. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court articulated the evidentiary burden borne by plaintiffs attempting to prove intentional discrimination through indirect evidence. The Court explained that while the intermediate evidentiary burdens shift back and forth under McDonnell Douglas, “‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Id. at 143 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (brackets in original). The Supreme Court, citing to its previous decision in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), stated in Reeves it is permissible for a trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Reeves, 530 U.S. at 147 (citing St. Mary’s Honor Center, 509 U.S. at 511). Accordingly, Reeves stated, “[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.” Id. at 148.

Despite the Supreme Court’s express instruction in St. Mary’s Honor Center and Reeves, the court in Rochon stated that “the plaintiff’s ultimate burden once the employer has asserted its non-discriminatory or non-retaliatory reason is consistently expressed in the D.C. Circuit’s precedents in the conjunctive. See, e.g., Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015) (holding that the court must determine ‘whether the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated [or retaliated] against the employee’).” Rochon, No. 2013-0131, at 15 (citations omitted) (emphasis added) (brackets in original). As a result of the D.C. Circuit’s insistence on requiring plaintiffs to offer sufficient evidence to prove not only pretext but also intentional discrimination, the District Court in Rochon concluded that the magistrate judge erred when he found that plaintiff had met his burden after he attacked the defendant’s proffered justification and the sworn testimony of its witnesses. Rochon, No. 2013-0131, at 14-16. However, the D.C. Circuit seemingly changed course when it stated in Walker that a plaintiff is not ‘presumptively required to submit evidence over and above [evidence of pretext] in order to avoid summary judgment.’” Walker, 798 F.3d at 1093 (quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292 (D.C. Cir. 1998)) (brackets in original).

Confusing? Yes!

Written by Valerie A. Chastain