Egan v. Delaware River Port Authority, No. 16-1471, and Carvalho-Grevious v. Delaware State Univ., No. 15-3521 (3d Cir. Mar. 21, 2017)

The Third Circuit on Tuesday took up the issue of causation, and the amount of proof a plaintiff must present, under two federal anti-retaliation laws. In Egan, the panel holds that employees may pursue FMLA retaliation claims under a mixed-motive theory, as supported by a Department of Labor regulation. In Carvalho-Grevious, the court announces a lowered bar for establishing Title VII retaliation at the prima facie stage.

Egan v. Delaware River Port Authority, No. 16-1471 (3d Cir. Mar. 21, 2017): The defendant Port Authority approved Egan's request for intermittent FMLA leave for migraine headaches. But this arrangement allegedly led to conflict between Egan and his boss, named Venuto. A co-worker of Egan testified in a deposition that he heard Venuto, in an "upset and angry" tone, complain about Egan's ability to complete tasks because of health issues. (This testimony was barred at Egan's trial.) Egan testified about having his own altercation with Venuto, though the specific subject of his health did not come up.

At trial, the district court denied a mixed-motive instruction on the FMLA claim, i.e., that the jury could find liability if the employee established that his FMLA leave was one motivating factor in his decision. The judge believed that Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), dictated that the jury must return a verdict that FMLA leave as a but-for cause.

The panel reverses in part, in a divided opinion. The majority holds that the Department of Labor (DOL) FMLA retaliation regulation, 29 C.F.R. § 825.220(c), was a valid regulatory interpretation of the statute and thus entitled to Chevron deference. The FMLA itself provides under 29 U.S.C. § 2615(a)(1) that it is "unlawful for any employer to interfere with . . . the exercise of . . . any right provided" by the act.

The DOL regulation, interpreting this section, eschews a but-for causation test: "[U]nder the regulation, an employee who claims retaliation and seeks to proceed under a mixed-motive approach must show that his or her use of FMLA leave was 'a negative factor' in the employer's adverse employment action."

This statutory language, according to the majority, leaves a gap that the DOL could fill:

"[B]ecause the term 'interfere with' is susceptible to multiple interpretations, and the statutory language does not directly address whether retaliation is among the actions an employer is prohibited from taking under the FMLA, Congress has not spoken on the 'precise question' before us .... We conclude that § 825.220(c) is a reasonable interpretation of § 2615(a)(1). The DOL's interpretation is consistent with the purposes of the FMLA, which include 'entitl[ing] employees to take reasonable leave for medical reasons' without interference."

Moreover, because the statute does not impose a but-for causation rule, as under Gross and Nassar, the DOL was within its discretion to set a lower threshold for causation:

"We cannot say that choosing something other than 'but-for' causation is unreasonable .... [I]n enacting the FMLA, Congress chose to ensure that those who need to address serious health issues may do so without interference. The regulation precludes an employer from considering the use of such leave as a negative factor in an employment decision. Thus, like Title VII's anti-discrimination provision, it seeks to ensure that engaging in such protected activity does not negatively impact an employee."

Thus upholding the regulation, the majority also holds, consistent with the Title VII decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), that an employee need not submit direct evidence of a prohibited motive - as the district court appeared to require here. "[I]n response to the request for the instruction, the Court should have determined whether there was evidence from which a reasonable jury could conclude that the Port Authority had legitimate and illegitimate reasons for its employment decision and that Egan's use of FMLA leave was a negative factor in the employment decision."

The case was remanded for retrial of the FMLA claim under the right instruction. (The panel affirms a verdict on a related ADA claim, finding that the district court did not err in excluding the co-worker testimony.)

Judge Jordan, concurring in the judgment, expresses broad doubts about the application of administrative deference: "Allowing claims to go forward on the terms dictated by the Department of Labor is a shift in public policy that should be debated and crafted within the legislative branch rather than being announced by unelected officials in an administrative agency."

Carvalho-Grevious v. Delaware State Univ., No. 15-3521 (3d Cir. Mar. 21, 2017): Dr. Grevious experienced challenges with a dean (named Austin) who, she alleged, explicitly confessed that his "management style was meant to stop 'back biting among women, especially Black women,' that is keep [sic] women from fighting amongst themselves to their own detriment." After Dr. Grevious e-mailed a school prevost (Thompson) about the Dean's alleged race- and sex-discriminatory comments, the Dean gave her a negative performance evaluation. Some months later - after a stream of complaints and plaintiff's filing of an EEOC charge - the University revised her teaching contract from renewable to terminal.

The district court granted summary judgment on plaintiff's § 1981 and Title VII claims, holding that "no reasonable jury could find that, but for Dr. Grevious's complaints about harassment and discrimination, she would have been retained as chairperson or kept her renewable contract," and thus Dr. Grevious failed to make out a prima facie case of retaliation.

The Third Circuit reverses in part. Although Nassar prescribes an ultimate but-for standard of causation for such claims, that authority says nothing about whether the this standard ought to apply at the threshold prima facie stage, even before the employer has proffered its reason for taking an adverse action against the employee. Instead, at the prima facie stage, "a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason."

The panel holds that a lower causation burden applies at this threshold stage: "We conclude that Nassar does not alter the plaintiff's burden at the prima facie stage; proving but-for causation as part of her ultimate burden of persuasion comes later, and not at the motion-to-dismiss stage." Instead, it's enough

It notes that while some circuits have found that a plaintiff must prove but-for causation even at the prima facie stage (EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015) (en banc); Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014)), there is no basis in the Third Circuit's view for front-loading causation. Quoting the Fourth Circuit (Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015)), the panel holds that this "would be tantamount to eliminating the McDonnell Douglas framework in retaliation cases," because it would collapse the three stages into one.

The panel holds that for proof of a likely reason, there was a genuine dispute. "Nothing in the record indicates that, between April 1 and June 21, anything changed with respect to Dr. Grevious's professional performance other than her escalation from filing intra-University complaints to filing an EEOC charge." Also, Provost Thompson supposedly "told [Dr. Grevious] he recommended issuance of a terminal contract because [she] 'was the cause of trouble in the department (which was only in reference to [Dr. Grevious's] complaints and protected activity).'"

There was also a genuine dispute of material fact on pretext. "A reasonable factfinder could determine that the University's failure to extend [opportunities] to Dr. Grevious ... and her long-existing difficulty in the Department indicate weaknesses in the Defendants' explanation and suggest pretext. If found to be credible, Provost Thompson's admission of retaliatory animus only strengthens Dr. Grevious's case."

(The panel affirmed summary judgment on another aspect of the case, being removed as a department chair.)