XXXXXXXXXX The Title VII burden shifting analysis set forth for discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973) is applied to retaliation claims. The plaintiff first must establish the elements of the prima facie claim. In a retaliation case, plaintiff must show: (A) s/he engaged in statutorily protected conduct or expression; (B) s/he was subjected to an adverse employment action; and (C) a causal connection exists between the protected activity and the adverse employment action. Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. If the defendant meets this burden, then the plaintiff must demonstrate that the defendant's asserted reason for the employment action is a pretext for retaliation. See, e.g., Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). ------------------- Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) Description Supreme Court held that an employer can be vicariously liable for sexual harassment by supervisor if evidence supports a contention that employer did not take steps to prevent possible harassment. Facts Faragher, a lifeguard, sued the City of Boca Raton and her supervisors for Title VII violations by creating a "sexually hostile atmosphere" at work by subjecting her and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms. District court held that the city was liable because it had "constructive knowledge" of the harassment under traditional agency principles. The Eleventh Circuit reversed, holding that the supervisors were not acting in the course of their employment so the city could not be held liable. Faragher appealed. Decision Reversed. An employer is subject to vicarious liability under Title VII for actionable discrimination caused by a supervisor. The employer may raise an affirmative defense that looks to the reasonableness of the employer's conduct in seeking to prevent and correct harassing conduct. The employer may also look to the reasonableness of the employee's conduct in seeking to avoid harm. Here the city was vicariously liable to Faragher because it failed to exercise reasonable care to prevent harassing behavior. --------------------- Summary judgment is appropriate only "if the pleadings, depo- sitions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). ----------------------- In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in her favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). ------------------------ XXXXXXXXXX established a prima facie case of retaliation under Title VII. To establish a prima facie case of retaliation under Title VII, a plaintiff is required to prove (1) that she engaged in a protected activity; (2) that an adverse employment action was taken against her; and (3) that there was a causal connection between the first two elements. See Hopkins v. Baltimore Gas & Elec- tric Co. , 77 F.3d 745, 754 (4th Cir.), cert. denied , 117 S. Ct. 70 (1996). ----------------------- XXXXXXXXX must satisfy the three- step proof scheme established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). First, Dowe must establish, by a preponderance of the evidence, a prima facie case of retaliation. Once established, the burden shifts to TAP to rebut the presumption of retaliation by articulating non-retaliatory reasons for its actions. Cf. Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 254 (1981). If TAP meets its burden of production, the presumption raised by the prima facie case is rebutted and "drops from the case," id. at 255 n.10, and Dowe bears the ultimate burden of proving that she has been the vic- tim of retaliation, see St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506-11 (1993). ------------------------- To survive summary judgment, therefore, Dowe must have evidence from which a reason- able factfinder could conclude that a causal connection exists between the protected activity and the adverse action. See Anderson , 477 U.S. at 248 (holding that summary judgment is appropriate"if the evidence is such that a reasonable jury could [not] return a verdict for the non- moving party"); see also Ross v. Communications Satellite Corp. , 759 F.2d 355, 364 (4th Cir. 1985) (noting that "the nonmoving party must produce `specific facts showing that there is a genuine issue for trial,' rather than resting upon the bald assertions of his pleadings" (quoting Fed. R. Civ. P. 56(e))); Felty v. Graves-Humphreys Co. , 818 F.2d 1126, 1128 (4th Cir. 1987) (noting that there is an affirmative duty for "the trial judge to prevent factually unsupported claims and defenses from proceeding to trial" (internal quotation marks omit- ted)). -------------------- The plain language of the participation clause itself forecloses us from improvising such a reasonableness test. The clause forbids retal- iation against an employee who "has made a charge, testified, assisted, or participated in any manner" in a protected proceeding. 42 U.S.C. § 2000e-3(a). Glover was fired because she "testified" in a Title VII deposition. The term "testify" has a plain meaning: "[t]o bear witness" or "to give evidence as a witness." Black's Law Dictionary 1476 (6th ed. 1990). ------------------------ XXXXXXXXX 1) the employee engaged in protected activity; 2) the employer took adverse employment action against the employee; and 3) a causal connection existed between the protected activity and the adverse action." Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). --------------- The employer may then rebut the prima facie case, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by showing that there was a legitimate non- discriminatory reason for the adverse action, Ross, 759 F.2d at 365, after which the burden shifts back to the plaintiff to show that those reasons are pretextual. Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). ----------------- The burden-shifting framework of a Title VII case is a familiar one. Gillins must first make out a prima facie case of discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). After Gillins establishes a prima facie case, the burden of production shifts to BEC to articulate a legitimate, nondiscriminatory reason for Gil- lins's demotion. See id. The burden then shifts back to Gillins to dem- onstrate that BEC's stated reason was merely pretextual and that it was motivated, in fact, by a discriminatory purpose. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993) ("[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." (emphasis omitted)). ---------------------- XXXXXXXXXXXXX To state a prima facie case of retaliation, a plaintiff must show that (1) the plaintiff engaged in a protected activity, such as filing a com- plaint with the EEOC; (2) the employer acted adversely against the plaintiff; and (3) the protected activity was causally connected to the employer's adverse action. Carter v. Ball , 33 F.3d 450, 460 (4th Cir. 1994). Once this is shown, the burden is on the employer to rebut the presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions. Id. The plaintiff must then demonstrate that the employer's reason was mere pretext for retaliation by proving "` both that the reason was false, and that discrimination was the real reason' for the challenged conduct." Jiminez v. Mary Washington College , 57 F.3d 369, 377-78 (4th Cir.) (quoting St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993)), cert. denied , 116 S. Ct. 380 (1995). The plaintiff always has the ultimate burden of persuading the trier of fact that the defendant engaged in retaliatory conduct. See Williams v. Cerberonics, Inc. , 871 F.2d 452, 457 (4th Cir. 1989). ------------------------- 42 U.S.C. § 2000e-2(a) (1994). Under Title VII, the plaintiff bears the initial burden of proving a prima facie case of discrimination by rais- ing an inference that the defendant acted with discriminatory intent. Wileman v. Frank , 979 F.2d 30, 33 (4th Cir. 1992). This can be done either through direct evidence of discriminatory intent, or by using the four-part McDonnell Douglas scheme which provides an inference of discriminatory intent. Id. (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)). In this case, that would require Ms. Karpel to show: "(1) that she is a member of a protected class; (2) that she was qualified for her job and her job performance was satisfactory; (3) that, in spite of her qualifications and performance, she was fired; and (4) that the position remained open to similarly qualified appli- cants after her dismissal." Williams v. Cerberonics, Inc. , 871 F.2d 452, 455 (4th Cir. 1989) (citing McDonnell Douglas , 411 U.S. at 802 ; Holmes v. Bevilacqua , 794 F.2d 142, 146 (4th Cir. 1986) (en banc)). -------------------- See also Cook v. CSX Trans. Corp. , 988 F.2d 507, 512 (4th Cir. 1993) ("[T]o focus on one piece of the record without considering the whole would distort the permissible inferences to be drawn."). ------------------- Under section 704(a) of Title VII, it is an "unlawful employment practice for an employer to discriminate against any[employee] ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testi- fied, assisted, or participated in any manner in an investigation, pro- ceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (1994). The series of proofs and burdens outlined in McDonnell Douglas apply to retaliation claims. See Ross v. Communications Sat- ellite Corp. , 759 F.2d 355, 365 (4th Cir. 1985). Therefore, in order to establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity, (2) the employer took adverse action, and (3) there was a causal connection between the two. Id. The burden then shifts to the employer to produce a legiti- mate nondiscriminatory reason for the adverse action. Id. If the employer does so, the plaintiff then bears the burden of showing that the employer's proffered reason is pretextual. Id. ------------------ Did the manager participate in hiring or promoting this individual? If so, it will be difficult for the subordinate to argue that his termination or other adverse action was due to his membership in a protected group. To quote from the Court of Appeals for the 4th Circuit: "In cases where the hirer and the firer are the same individual[s] and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.... In short, employers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing." Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) ------------------- In order to clear the high threshold of actionable harm, the conduct in question must (1) be "severe or pervasive enough to create an objectively hostile or abusive work environment," and (2) be subjec- tively perceived by the victim to be abusive. Harris v. Forklift Sys- tems, Inc., 510 U.S. 17, 21 (1993). In conducting the objective inquiry, courts should examine "all the circumstances," including (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely offen- sive; and (4) whether it unreasonably interferes with an employee's work performance. Id. at 23. ----------------- no established policy prohibiting abuse or hostile environment, no established policy of discrimination processes or procedures no established written employee handbook no established written policies or procedures until after discharge --------------------- 27 Ellerth, 118 S. Ct. at 2269; Faragher, 118 S. Ct. 2284-85. See also Durham Life Insurance Co., v. Evans, 166 F.3d 139, 152 (3rd Cir. 1999) ("A supervisor can only take a tangible adverse employment action because of the authority delegated by the employer . . .and thus the employer is properly charged with the consequences of that delegation."). 38 The link could be established even if the harasser was not the ultimate decision maker. See, e.g., Shager v Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (noting that committee rather than the supervisor fired plaintiff, but employer was still liable because committee functioned as supervisor's "cat's paw"), cited in Ellerth, 118 S. Ct. at 2269. 40 Ellerth, 118 S. Ct. at 2270 ("[n]o affirmative defense is available . . . when the supervisor's harassment culminates in a tangible employment action . . ."); Faragher, 118 S. Ct. at 2293 (same). See also Durham, 166 F.3d at 154 ("When harassment becomes adverse employment action, the employer loses the affirmative defense, even if it might have been available before."); Lissau v. Southern Food Services, Inc., 159 F.3d 177, 184 (4th Cir. 1998) (the affirmative defense "is not available in a hostile work environment case when the supervisor takes a tangible employment action against the employee as part of the harassment") (Michael, J., concurring). 50 Even if higher management proves that evidence it discovered after-the-fact would have justified the supervisor's action, such evidence can only limit remedies, not eliminate liability. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 360-62 (1995). 58 Although the affirmative defense does not apply in cases of harassment by co-workers or non-employees, an employer cannot claim lack of knowledge as a defense to such harassment if it did not make clear to employees that they can bring such misconduct to the attention of management and that such complaints will be addressed. See Perry v. Ethan Allen, 115 F.3d 143, 149 (2d Cir. 1997) ("When harassment is perpetrated by the plaintiff's coworkers, an employer will be liable if the plaintiff demonstrates that 'the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it'"), cited in Faragher, 118 S. Ct. at 2289. Furthermore, an employer is liable for harassment by a co-worker or non-employer if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d). Therefore, the employer should have a mechanism for investigating such allegations and undertaking corrective action, where appropriate. ------------------ 77 See, e.g., Splunge v. Shoney's, Inc., 97 F.3d 488, 490 (11th Cir. 1996) (where harassment of plaintiffs was so pervasive that higher management could be deemed to have constructive knowledge of it, employer was obligated to undertake corrective action even though plaintiffs did not register complaints); Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp.2d 870, 882 (N.D. Ind. 1998) (employer has constructive knowledge of harassment by supervisors where it "was so broad in scope and so permeated the workplace that it must have come to the attention of someone authorized to do something about it"). ----------------- In McDONALD v. SANTA FE TRAIL TRANSP. CO., 427 U.S. 273 (1976) , the Supreme Court holds that Title VII prohibits racial discrimination against whites as well as blacks. ------------------- When there is direct evidence of reprisal, the traditional Title VII analysis is inapplicable. Carson v. Veterans Administration, EEOC Request No. 01871596 (1988), citing Trans World Airlines, Inc. v. Thurston, 105 S.Ct. 613 (1985); Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir. 1986). Direct evidence of discrimination cannot be overcome merely by introducing a legitimate, nondiscriminatory reason for the adverse action. ------------------- Tangible Employment Action. Under Faragher and Ellerth, the employer is always liable for a supervisor''s harassment if it culminates in a "tangible employment action." The employer cannot take advantage of the affirmative defense, described below, if there has been a tangible employment action. ------------------ the Supreme Court ruled in Kolstad v. American Dental Association that a company could avoid liability for punitive damages for any form of Title VII discrimination, if the supervisor or manager involved in the discriminatory conduct was acting contrary to an employer's good faith effort to comply with the law. One obvious and fundamental way any employer can make a good faith effort to comply with the law is having appropriate written policies and procedures and a program of employee training and education. LM Communications did not have a written policy or procedure and no program of employee training and education was in effect. At no time did plaintiff receive any written or verbal negative comments from management regarding job performance. ----------------