Title VII plaintiff loses retrial on new retaliation standard

This case is a real downer for plaintiffs' lawyers. It tells us that the Supreme Court has the final say, and if you don't like it, lump it.

The case is Cassotto v. Donahoe, a summary order decided on January 14. This is a retaliation case brought under Title VII. Plaintiff said he suffered retaliation after asserting his rights under the antidiscrimination laws. The case went to trial, and plaintiff won. Post trial, the defendant filed a motion to vacate the verdict. When the motion was pending, the Supreme Court issued the Nassar ruling, which altered the legal standard governing Title VII retaliation cases.

Prior to Nassar, the Second Circuit (and other courts) said the plaintiff wins the case if the employer's retaliatory intent was a motivating factor in the termination/demotion. But in Nassar, the Supreme Court said the motivating factor test is wrong. The right test is "but for," as in, but for the employer's retaliatory motive, the plaintiff would not have been terminated. This is a higher burden of proof for the plaintiff to satisfy.

Is there a significant difference between "motivating factor" and "but-for" causation? In a recent case, the Second Circuit said that that "but for" causation does not mean retaliatory intent is the only reason someone was fired. In Kwan v. Aldalex, the court said,

A plaintiff's injury can have multiple "but — for" causes, each one of which may be sufficient to support liability. ... Requiring proof that a prohibited consideration was a "but-for" cause of an adverse action does not equate to a burden to show that such consideration was the "sole" cause.

Good language for plaintiffs. Yet, "but for" causation is still harder for plaintiffs to prove at trial. After the plaintiff in this case won his trial, the district court granted the defendant's motion for a new trial in light of the Nassar ruling. On retrial, under the new legal standard, the plaintiff lost. Plaintiff appealed, challenging the trial court's right to order a new trial. But the Court of Appeals (Lynch, Carney and Koeltl [D.J.]) says the trial court had no choice in light of the intervening ruling in Nassar. The trial courts follow what the Supreme Court says, and so does the Second Circuit. That means no relief for Cassotto, and the case is over.