Fourth Circuit Affirms Continued Validity of McDonnell-Douglas Test Following Supreme Court Decision

In Foster v. University of Maryland-Eastern Shore, the Fourth Circuit recently made clear that the McDonnell-Douglas test is alive and well, rejecting a District Court’s decision which had attempted to back away from the traditional test in evaluating a plaintiff’s burden of proof in a Title VII case.

Foster, a university police officer, alleged that she was terminated just weeks after she complained that a fellow employee spied on her while she tried on her uniform, made lewd and sexual comments, and made physical advances towards her. The university conducted an investigation and took action in response to Foster’s complaints. The university contended that despite the temporal link to those complaints, plaintiff was terminated because she was inflexible about work hours, was not a “team player,” and abused her paid time off. During a deposition, one of her supervisors said she was terminated because she was not capable of moving past the sexual harassment incident, and because of this, she was not a good fit for the department.

The lower court initially denied the university’s summary judgment based upon these facts. However, after a motion for reconsideration in light of the intervening Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar, the District Court reversed and granted summary judgment in favor of the defendant.

In Nasser, the Supreme Court eschewed the lessened causation test stated in Title VII, and found that a Title VII plaintiff must prove her case by the traditional principles of but-for causation – namely, that the “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” The lower court found that this altered the fundamental three-step burden shifting analysis enunciated in the seminal McDonnell Douglas v. Green decision:

  1. A plaintiff must first establish a prima facie case by a preponderance of the evidence, i.e. allege facts that are adequate to support a legal claim.
  2. Then the burden of production shifts to the employer, to rebut this prima facie case by "articulat[ing] some legitimate, nondiscriminatory reason for the employee’s rejection.”
  3. Then the employee may prevail only if he can show that the employer’s response is merely a pretext for behavior actually motivated by discrimination.
Finding that the Nasser decision changed this analysis, the lower court in Foster held that the plaintiff did not have sufficient evidence to prove her claim that her employer violated Title VII. However, the Fourth Circuit found that Nasser did not alter the McDonnell-Douglas framework. Importantly, the Fourth Circuit found that if the Supreme Court “intended to retire McDonnell Douglas and set aside 40 years of precedent, it would have spoken plainly and cleanly to that effect.” Specifically, the court found that despite the Nasser court’s alteration of the burden of proof, “the McDonnell Douglas framework, which already incorporates a but-for causation analysis, provides the appropriate standard for reviewing Foster's claim.” The case was remanded to the lower court for further consideration, in line with the Fourth Circuit’s opinion, and the Supreme Court’s long-standing McDonnell Douglas test.