Plaintiff’s Victory in Title VII Retaliation Cases Made More Difficult: The Expansion of “But-For” Causation in the Eastern District of Pennsylvania

By Thomas J. Szymanski, Esq.*

A plaintiff attempting to sustain a claim for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), must demonstrate that he or she: (1) engaged in protected activity, (2) the employer took adverse employment action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-42 (3d Cir. 2006). Recently, the U.S. Supreme Court established that a plaintiff must prove “that the desire to retaliate was the but-for cause of the challenged employment action” in order to satisfy the causation element of a Title VII retaliation claim. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (U.S. 2013). Specifically, the plaintiff’s burden has been elevated; he or she is now required to prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Following the Supreme Court’s holding in Nassar, the substantive law surrounding “but- for” causation has been developing.

In Jimmy v. Elwyn, Inc., 2014 U.S. Dist. LEXIS 19603 (E.D. Pa. Feb. 18, 2014), Chief Judge Patrice Tucker granted the defendant’s motion for summary judgment, in part, dismissing the plaintiff’s Title VII and PHRA retaliation claims based on the absence of “but-for” causation. Significantly, Judge Tucker articulated what is required to establish “but-for” causation and, accordingly, made it more difficult for plaintiffs to survive summary judgment in Title VII retaliation cases.

The plaintiff presented evidence that he was consistently told by his employer that he was a good employee until January 16, 2009, when he gave a deposition in a case brought by a former employee. The plaintiff alleged that after his testimony, which was perceived as favorable to the former employee, he was admonished for his statements by his then-supervisor, Ellen Williamson, and was told that she was “going to get him.” The plaintiff also presented evidence that Ms. Williamson would make negative comments criticizing his “protected activity” in the presence of his subsequent supervisor, Renee Russell, and others. Further, the plaintiff set forth evidence that he was called a “bad employee” by management, subjected to derogatory name-calling by supervisors, given some of the most difficult tasks to complete and was sent home repeatedly when he complained. The plaintiff alleged that he was terminated on January 7, 2011, as a result of an unsubstantiated complaint by Ms. Russell because she resented him for the aforementioned protected activity. Jimmy, 2014 U.S. Dist. LEXIS 19603, at *2-3, *36-37.

The employer conceded that the January 16, 2009, deposition was a protected activity and that the plaintiff’s termination was an adverse employment action; however, the employer contested that there was a causal connection between the plaintiff’s deposition and his eventual termination. Specifically, the employer argued that Ms. Williamson, his former supervisor, was no longer employed with the employer and had no role in his termination. Ms. Russell, whose accusation of poor supervision led to the plaintiff’s termination, was hired 19 months after the 2009 deposition and, therefore, was not negatively influenced by the plaintiff’s protected action. Jimmy, 2014 U.S. Dist. LEXIS 19603, at *33-34.

The court held that, under Nassar, as a matter of law, the plaintiff failed to show evidence that suggested his 2009 deposition testimony was the “but-for” cause of his termination. Jimmy, 2014 U.S. Dist. LEXIS 19603, at *37-38. Furthermore, the court noted that no possible connection between his deposition and the termination existed because, “[t]o rule otherwise, this court would have to find that Jimmy presents sufficient evidence to suggest that a two-year long effort to negatively affect Jimmy’s employment was orchestrated against him primarily by two managers, at least one of whom was not employed by Elwyn at the time of the protected activity.” Jimmy, 2014 U.S. Dist. LEXIS 19603, at *38. Accordingly, even in light of the evidence presented that Ms. Williamson told Ms. Russell about the deposition and openly displayed animosity toward the plaintiff for his role in that case, the court declined to assume that just because Ms. Russell knew about his protected activity against the company she would automatically view him as an enemy because of it. Jimmy, 2014 U.S. Dist. LEXIS 19603, 38-39.

The significance of this decision is that it articulates an exacting standard for “but-for” causation in Pennsylvania. The plaintiff asserted that the terminating party had knowledge of the protected activity and allegedly witnessed retaliatory animosity resulting from that protected activity by a former supervisor. Nonetheless, the court found this was not enough. Rather, the plaintiff must prove that “but-for” the protected activity, the adverse action would not have happened. In other words, the protected activity must be the sole, direct and proximate cause of the adverse action, and an intervening activity or change of circumstances may defeat the requisite causation.

The Supreme Court’s decision in Nassar increased a plaintiff’s burden to prove causation in Title VII retaliation cases, and, now, Jimmy has set the bar in the Eastern District of Pennsylvania for these claims. These cases should make it easier for employers to defend Title VII retaliation claims, as the plaintiff will have the burden of establishing that the retaliatory motive was “the reason” or the “but-for” cause for the employment decision.

*Tom, an associate in our Philadelphia, Pennsylvania office, can be reached directly at 267.295.4041 or at tjszymanski@mdwcg.com.

Defense Digest, Vol. 20, No. 2, June 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.