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[Plaintiff] claims that [defendant] discriminated against [him/her] because of [plaintiff’s] [describe protected activity].37
To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:
First: [Plaintiff] [describe activity protected by Title VII].
Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place.
Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe protected activity].
Concerning the first element, [plaintiff] need not prove the merits of [his/her] [describe plaintiff’s activity], but only that [he/she] was acting under a reasonable,38 good faith belief that [plaintiff’s] [or someone else’s] right to be free from discrimination on the basis of [protected status] was violated.
Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.]
Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [employer’s] action followed shortly after [employer] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff].
Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred.
COMMENT Title VII protects employees and former employees who attempt to exercise the rights guaranteed by the Act against retaliation by employers. 42 U.S.C. § 2000e-3(a) is the anti-retaliation provision of Title VII,39 and it provides as follows:
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Protected Activities
Activities protected from retaliation under Title VII include the following: 1) opposing any practice made unlawful by Title VII;40 2) making a charge of employment discrimination;41 3) testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII. Id.
Informal complaints and protests can constitute protected activity under the “opposition” clause of 42 U.S.C. § 2000e-3(a). “Opposition to discrimination can take the form of informal protests of discriminatory employment practices, including making complaints to management. To determine if retaliation plaintiffs sufficiently opposed discrimination, we look to the message being conveyed rather than the means of conveyance.” Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d Cir. 2006) (citations omitted).42 In Crawford v. Metropolitan Gov’t of Nashville and Davidson Cty., Tennessee, 555 U.S. 271, 277 (2009), the Court held that the antiretaliation provision’s “opposition” clause does not require the employee to initiate a complaint. The provision also protects an employee who speaks out about discrimination by answering questions during an employer’s internal investigation. The Court declared that there is “no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” See also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (advocating salary increases for women employees, to compensate them equally with males, was protected activity).
“[A] plaintiff need not prove the merits of the underlying discrimination complaint, but only that ‘he was acting under a good faith, reasonable belief that a violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)), overruled on other grounds by Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995)). The good-faith-and-reasonable-belief test clearly applies to actions under the “opposition” clause of Section 2000e-3(a). There is some authority for the proposition that a less demanding test applies to actions under the “participation” clause of Section 2000e-3(a) – i.e., the clause that refers to a person who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter,” 42 U.S.C. § 2000e-3(a). Thus, in Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), after holding plaintiff’s conduct unprotected by the opposition clause because the plaintiff could not have reasonably believed the challenged employer actions to be illegal, the Supreme Court went on to consider plaintiff’s participation claim based on the same employer action. Third Circuit authority, however, is divided. After noting authorities stating that “the ‘participation clause’... offers much broader protection to Title VII employees than does the ‘opposition clause,’” the Court of Appeals in Slagle v. County of Clarion, 435 F.3d 262 (3d Cir. 2006), stated that for filing a charge to constitute protected activity, “[a]ll that is required is that plaintiff allege in the charge that his or her employer violated Title VII by discriminating against him or her on the basis of race, color, religion, sex, or national origin, in any manner.” Slagle, 435 F.3d at 266, 268. (The plaintiff in Slagle failed to surmount even this “low bar.” Id.) Later that same year, however, a different panel of the Court of Appeals indicated that the good-faith-and-reasonable-belief test applies to both opposition and participation claims: “Whether the employee opposes, or participates in a proceeding against, the employer’s activity, the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII.” Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006). (The facts of Moore featured adverse actions both pre-dating and post-dating the filing of the EEOC charge, see id. at 340, 345-48.)
In accord with instructions from other circuits, Instruction 5.1.7 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that employment discrimination had occurred. See Fifth Circuit Committee Note to Instruction 11.6.1 (Title VII retaliation); Seventh Circuit Committee Comment to Instruction 3.02 (retaliation instruction for use in Title VII, § 1981, and ADEA cases); Eleventh Circuit Instruction 4.21 (Section 1981 retaliation); Eleventh Circuit Instruction 4.22 (retaliation claims under Title VII, ADEA, ADA, and FLSA); see also Eighth Circuit Instruction 10.41 (retaliation claim (regarding opposition to harassment or discrimination) under Title VII and other federal discrimination laws; instruction uses phrase “reasonably believed”); id. Notes on Use, Note 5 (using phrase “reasonably and in good faith believe”); compare Ninth Circuit Instruction & Comment 10.3 (Title VII retaliation) (discussing reasonableness requirement in the comment but not in the model instruction). In cases where the protected nature of the plaintiff’s activity is not in dispute, this portion of the instruction can be modified and the court can simply instruct the jury that specified actions by the plaintiff constituted protected activity.
Standard for Actionable Retaliation
The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006), held that a cause of action for retaliation under Section 2000e-3(a) lies whenever the employer responds to protected activity in such a way “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (citations omitted).43 The Court elaborated on this standard in the following passage:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and "'snubbing' by supervisors and co-workers" are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual § 8, p. 8-13.
We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., [Pennsylvania State Police v.] Suders, 542 U.S., at 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (hostile work environment doctrine).
We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.... A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others.
Finally, we note that... the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. 548 U.S. at 68 (some citations omitted). The instruction follows the guidelines of the Supreme Court’s decision in White. For applications of the White standard, see Moore v. City of Philadelphia, 461 F.3d 331, 348 (3d Cir. 2006) (finding that a transfer of a police officer from a district where he had earned goodwill and established good relations with the community could constitute actionable retaliation, because it “is the kind of action that might dissuade a police officer from making or supporting a charge of unlawful discrimination within his squad.”); Id. at 352 (aggressive enforcement of sick-check policy “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”); Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 220 (3d Cir. 2017) (holding that plaintiff presented evidence that would justify a finding of a materially adverse action where plaintiff’s “working hours declined three-fold in the months following her complaint as compared to the months preceding her complaint”).
In Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289 (3d Cir. 2019), the plaintiff (a former federal employee) brought a claim for retaliatory hostile work environment and the jury charge included the “severe or pervasive” standard drawn from Title VII hostile-environment law. The plaintiff contended that “the... instruction that a retaliatory hostile work environment claim requires proof of ‘conduct... so severe or pervasive that a reasonable person in Ms. Komis’[s] position would find her work environment hostile or abusive[’]... was erroneous because Burlington Northern did away with the ‘severe or pervasive’ requirement for retaliation claims — including for a retaliatory hostile work environment.” Komis, 918 F.3d at 297. The Court of Appeals, applying a harmless-error test, declined to resolve that question. See id. at 299 (“Whatever the room in magnitude of harm between conduct severe or pervasive such that it affects the terms and conditions of employment and materially adverse conduct that would dissuade a reasonable worker from invoking her antidiscrimination rights, Komis has not shown how it might change the outcome in her case.”).
No Requirement That Retaliation Be Job-Related To Be Actionable
The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 61-62 (2006), held that retaliation need not be job-related to be actionable under Section 2000e-3(a). In doing so, the Court rejected authority from the Third Circuit (and others) requiring that the plaintiff suffer an adverse employment action in order to recover for retaliation. The Court distinguished Section 2000e-3(a) from Title VII’s basic anti-discrimination provision, which does require an adverse employment action.
The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII's core anti-discrimination provision in the following terms:
"It shall be an unlawful employment practice for an employer --
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a) (emphasis added).
Section 704(a) sets forth Title VII's anti-retaliation provision in the following terms:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." § 2000e-3(a) (emphasis added).
The underscored words in the substantive provision -- "hire," "discharge," "compensation, terms, conditions, or privileges of employment," "employment opportunities," and "status as an employee" -- explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing.
The White Court explained the rationale for providing broader protection in Section 2000e-3(a) than is provided in the basic discrimination provision of Title VII:
There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.
To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimination of practices that tend to bring about "stratified job environments," id., at 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668, would be achieved were all employment-related discrimination miraculously eliminated.
But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision's objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., Rochon v. Gonzales, 438 F.3d at 1213 (FBI retaliation against employee "took the form of the FBI's refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife"); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's "primary purpose," namely, "maintaining unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997). 548 U.S. at 63-64 (emphasis in original)
Accordingly, the instruction contains bracketed material to cover a plaintiff’s claim for retaliation that is not job-related. The instruction does not follow pre-White Third Circuit authority which required the plaintiff in a retaliation claim to prove that she suffered an adverse employment action. See, e.g., Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir.1995) (requiring the plaintiff in a retaliation case to prove among other things that “the employer took an adverse employment action against her”). See also Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (observing that the White decision rejected Third Circuit law that limited recovery for retaliation to those actions that altered the employee’s compensation or terms and conditions of employment).
Membership In Protected Class Not Required
An employee need not be a member of a protected class to be subject to actionable retaliation under Section 2000e-3(a). For example, 2000e-3(a) protects a white employee who complains about discrimination against black employees and is subject to retaliation for those complaints. See Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (“Title VII’s whistleblower protection is not limited to those who blow the whistle on their own mistreatment or on the mistreatment of their own race, sex, or other protected class.”)
Claim by victim of retaliation for another’s protected activity
Section 2000e-3(a) not only bars retaliation against the employee who engaged in the protected activity; it also bars retaliation against another employee if the circumstances are such that the retaliation against that employee might well dissuade a reasonable worker from engaging in protected activity. See Thompson v. North American Stainless, LP, 562 U.S. 170, 174 (2011) (“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”). The Thompson Court stressed that analysis of a claim of third-party retaliation is fact-specific. See id. at 174-75 (“We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”).
In order to bring a retaliation claim under Section 2000e-3(a), the third-party victim of the retaliation must show that he or she “falls within the zone of interests protected by Title VII.” Id. at 178. In Thompson, the plaintiff fell “well within the zone of interests sought to be protected by Title VII” because he was an employee of the defendant and because “injuring him was the employer's intended means of harming” his fiancée, who had engaged in the protected activity that triggered the retaliation. See id.
The Thompson Court did not specify whether the questions noted in the two preceding paragraphs should be decided by the judge or the jury. In keeping with existing practice, it seems likely that it is for the jury to determine whether, under the circumstances, retaliation against the third party might well dissuade a reasonable worker from engaging in protected activity. By contrast, it may be for the judge rather than the jury to determine whether the third party falls within the zone of interests protected by Title VII. Bracketed options in Instruction 5.1.7 reflect these considerations.
For a helpful discussion on the importance of the time period between the plaintiff’s protected activity and the action challenged as retaliatory, as well as other factors that might be relevant to a finding of causation, see Marra v. Philadelphia Housing Authority, 497 F.3d 286, 302 (3d Cir. 2007) (a case involving a claim of retaliation under the Pennsylvania Human Relations Act, which the court found to be subject to the same standards of substantive law as an action for retaliation under Title VII):
We have recognized that.a plaintiff may rely on a "broad array of evidence" to demonstrate a causal link between his protected activity and the adverse action taken against him. Farrell [v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000)]. In certain narrow circumstances, an "unusually suggestive" proximity in time between the protected activity and the adverse action may be sufficient, on its own, to establish the requisite causal connection. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997); see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (discharge of plaintiff two days after filing EEOC complaint found to be sufficient, under the circumstances, to establish causation). Conversely, however, "[t]he mere passage of time is not legally conclusive proof against retaliation." Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993) (citation omitted); see also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) ("It is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn."). Where the time between the protected activity and adverse action is not so close as to be unusually suggestive of a causal connection standing alone, courts may look to the intervening period for demonstrative proof, such as actual antagonistic conduct or animus against the employee, see, e.g., Woodson [v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997)] (finding sufficient causal connection based on "pattern of antagonism" during intervening two-year period between protected activity and adverse action), or other types of circumstantial evidence, such as inconsistent reasons given by the employer for terminating the employee or the employer's treatment of other employees, that give rise to an inference of causation when considered as a whole. Farrell, 206 F.3d at 280-81.
The Marra court noted that the time period relevant to causation is that between the date of the employee’s protected activity and the date on which the employer made the decision to take adverse action. In Marra the employer made the decision to terminate the plaintiff five months after the protected activity, but the employee was not officially terminated until several months later. The court held that the relevant time period ran to when the decision to terminate was made. 497 F.3d at 286.
The Marra court also emphasized that in assessing causation, the cumulative effect of the employer’s conduct must be evaluated: “it matters not whether each piece of evidence of antagonistic conduct is alone sufficient to support an inference of causation, so long as the evidence permits such an inference when considered collectively.” 497 F.3d at 303.
For other Third Circuit cases evaluating the causative connection between protected activity and an adverse employment decision, see Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (noting that temporal proximity and a pattern of antagonism “are not the exclusive ways to show causation” and that the element of causation in retaliation cases “is highly context-specific”); Moore v. City of Philadelphia, 461 F.3d 331, 352 (3d Cir. 2006) (employee was subject to three sick-checks in his first five months of medical leave; after filing a lawsuit alleging discrimination, he was subject to sick-checks every other day; the “striking difference” in the application of the sick-check policy “would support an inference that the more aggressive enforcement “was caused by retaliatory animus.”); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.”); Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 331 (3d Cir. 2015) (rejecting the plaintiff’s argument that timing provided evidence of retaliation in a case where fewer than 12 weeks elapsed between the plaintiff’s complaint of harassment and her employer’s determination that she should be suspended without pay for committing fraud, and noting that the employer “spent [the intervening time] on a thorough investigation into her alleged malfeasance”); Connelly v. Lane Const. Corp., 809 F.3d 780, 792-93 (3d Cir. 2016) (holding inference of causation permissible where employer “continued to rehire [plaintiff] for four years despite her complaints about co-workers, but declined to rehire her at the first such opportunity after she complained of harassment by a supervisor”; and noting that the timing – “protected activity in May 2010,” employer’s layoff of plaintiff in October 2010, and employer’s failure to rehire plaintiff in spring 2011 – should be assessed in light of “the seasonal character of [plaintiff’s] work”); Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 259-63 (3d Cir. 2017) (applying the McDonnell-Douglas burden-shifting test in reviewing the grant of summary judgment on the plaintiff’s Title VII and Section 1981 retaliation claims); Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 221 (3d Cir. 2017) (holding that “[t]he close temporal connection between [plaintiff’s] complaint and the reduction in her hours” sufficed “to provide prima facie evidence of a causal connection” where plaintiff’s “hours declined immediately following the filing of her complaint and never recovered”).
In appropriate cases, it may be useful to note that if the jury disbelieves the employer’s proffered non-retaliatory reason for the employment decision, it may consider that fact in determining whether the defendant’s proffered reason was really a cover-up for retaliation. Cf., e.g., Moore, 461 F.3d at 342, 346 (applying the McDonnell Douglas framework to a Title VII retaliation claim and analyzing, inter alia, whether “the plaintiffs tendered sufficient evidence to overcome the non-retaliatory explanation offered by their employer”); Daniels v. School District of Philadelphia, 776 F.3d 181, 198 (3d Cir. 2015) (upholding grant of summary judgment against plaintiff on retaliation claims under, inter alia, Title VII, because the defendant had “proffered legitimate reasons for [its] adverse actions, which Daniels has failed to rebut”).44 If the court wishes to modify Instruction 5.1.7 in this manner, it could adapt the penultimate paragraph of Instruction 5.1.2 by substituting references to retaliation for references to discrimination:
[Defendant] has given a nonretaliatory reason for its [describe defendant’s action]. If you disbelieve [defendant’s] explanations for its conduct, then you may, but need not, find that [plaintiff] has proved retaliation. In determining whether [defendant’s] stated reason for its actions was a pretext, or excuse, for retaliation, you may not question [defendant’s] business judgment. You cannot find retaliation simply because you disagree with the business judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant’s] wisdom. However, you may consider whether [defendant’s] reason is merely a cover-up for retaliation. Animus of Employee Who Was Not the Ultimate Decisionmaker
Construing the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Supreme Court ruled that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA” even if the ultimate employment decision is taken by one other than the supervisor with the animus. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (footnotes omitted). The Court did not explicitly state whether this ruling extends to Title VII discrimination claims under 42 U.S.C. § 2000e-2(m) (which also refers to discrimination as a motivating factor), though it noted the similarity between Section 2000e-2(m)’s language and that of the USERRA. Unlike Title VII discrimination claims under 42 U.S.C. § 2000e-2(m), retaliation claims under Section 2000e-3(a) are not founded on any explicit statutory reference to discrimination as “a motivating factor.” Because the Court’s analysis in Staub was framed as an interpretation of the statutory language in the USERRA, it was initially unclear whether Staub’s holding extends to Title VII retaliation claims. However, the Court of Appeals, in McKenna v. City of Philadelphia, 649 F.3d 171 (3d Cir. 2011), treated Staub as applicable to the plaintiff’s Title VII retaliation claim. See McKenna, 649 F.3d at 180 (holding that “under Staub, the District Court did not err in denying the City's motion for judgment as a matter of law/notwithstanding the verdict”); id. (concluding that though the jury instructions – given prior to the decision in Staub – “did not precisely hew to the proximate cause language adopted in Staub,... the variation was harmless”).45 Thus, in a case involving retaliatory animus by one other than the ultimate decisionmaker, Instruction 5.1.7 should be modified to reflect McKenna’s application of Staub.
Retaliation Against Perceived Protected Activity
In Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002), the court held that anti-retaliation provisions in the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Pennsylvania state law extended to retaliation for “perceived” protected activity. “Because the statutes forbid an employer's taking adverse action against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer's discriminatory animus was correct[;]... so long as the employer's specific intent was discriminatory, the retaliation is actionable.” 283 F.3d at 562. The Fogleman court noted that its precedents interpreting the ADA and ADEA retaliation provisions were equally applicable to Section 2000e-3(a). See 283 F.3d at 567 (“Because the anti-retaliation provisions of the ADA and ADEA are nearly identical, as is the anti-retaliation provision of Title VII, we have held that precedent interpreting any one of these statutes is equally relevant to interpretation of the others.”). Accordingly, the Fogleman holding concerning perceived protected activity seems applicable to retaliation claims under Section 2000e-3(a). For the fairly unusual case in which the employer is alleged to have retaliated for perceived rather than actual protected activity, the instruction can be modified consistently with the court’s directive in Fogleman.
Instruction 5.1.7 requires the plaintiff to show that the plaintiff’s protected activity had a “determinative effect” on the allegedly retaliatory activity. This is the standard typically used in Title VII pretext cases outside the context of retaliation. See Comment 5.1.2. Title VII claims that do not involve retaliation can alternatively proceed on a mixed-motive theory under 42 U.S.C. § 2000e-2(m), subject to the affirmative defense stated in 42 U.S.C. § 2000e-5(g)(2)(B), see Comment 5.1.1, but the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”); id. at 2534 (rejecting contention that the Price Waterhouse mixed-motive test could be used for Title VII retaliation claims).46
Federal employees’ retaliation claims
Title VII claims by federal employees are governed by a separate statutory section, which provides in relevant part that for various specified types of federal-government employees “[a]ll personnel actions affecting [such] employees or applicants for [such] employment... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The Court of Appeals has held “that federal employees may bring claims for retaliation under [Section 2000e-16(a)] even though [that] provision does not explicitly reference retaliation.” Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289, 294 (3d Cir. 2019) (finding that the case did not present an occasion to address the government’s contention that “federal-sector retaliation claims are, unlike their private-sector counterparts, limited to challenging ‘personnel actions’”). Komis, however, did not focus on the causation standard for a retaliation claim although the Court has held that motivating factor causation governed to federal employee discrimination claims under that statute. Makky v. Chertoff, 541 F. 3d 205, 213-214 (3d Cir. 2008). The Supreme Court’s recent decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), may or may not have implications for Title VII retaliation cases brought by federal employees. See Comment 5.0.
(Last Updated July 2019)
37 Instruction 5.1.7 will often be used in cases in which the same employee engaged in the protected activity and directly suffered the retaliation. As noted in the Comment, Title VII also bars retaliation against another employee if the circumstances are such that the retaliation against that employee might well dissuade a reasonable worker from engaging in protected activity. See Thompson v. North Am. Stainless, LP, 131 S. Ct. 863, 868 (2011). In cases in which the plaintiff is not the person who engaged in protected activity, the instruction should be modified appropriately. Among such changes, the following language could be added to the paragraph that explains the second element: “That is to say, you must decide if any actions [defendant] took against [plaintiff] might well discourage a reasonable worker in [third party’s] position from [describe protected activity]. You must decide that question based on the circumstances of the case. [To take two examples, firing a close family member will almost always meet that test, but inflicting less serious harm on a mere acquaintance will almost never do so.]”
38 See the Comment for a discussion of the allocation of responsibility for determining the reasonableness of the plaintiff’s belief.
39 See below for a discussion of the separate statutory provision that governs retaliation claims by federal employees.
40 Where an employer conditioned its conversion of terminated at-will employees into independent contractors on the employees’ signing releases of all existing claims (including but not limited to discrimination claims), an employee’s refusal to sign that release did not constitute opposition within the meaning of Title VII’s anti-retaliation provision: “[R]efusing to sign a release... does not communicate opposition sufficiently specific to qualify as protected employee activity…. Because Allstate's Release barred its signatories from bringing any claims against Allstate concerning their employment or termination, employee agents who refused to sign it might have done so for any number of reasons unrelated to discrimination.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015).
To constitute opposition, a complaint must relate to a category of activity prohibited by Title VII. See Connelly v. Lane Const. Corp., 809 F.3d 780, 792 n.10 (3d Cir. 2016) (holding that certain of the plaintiff’s “complaints, to the extent they implicated only safety issues, were not protected activity for purposes of her retaliation claim”).
41 See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (filing EEOC complaint constitutes protected activity), overruled on other grounds by Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53 (2006).
42 In Curay-Cramer v. Ursuline Academy, 450 F.3d 130, 135 (3d Cir. 2006), the court held that general protest on public issues does not constitute protected activity. To be protected under Title VII, the employee’s activity must be directed to the employer’s alleged illegal employment practice; it must “identify the employer and the practice – if not specifically, at least by context.” In Curay-Cramer, the plaintiff alleged that her employer retaliated against her after she signed a pro-choice advertisement, thus advocating a position on a public issue that her employer opposed. But because the advertisement did not mention her employer or refer to any employment practice, the plaintiff’s actions did not constitute protected activity.
The Curay-Cramer court further held that the plaintiff could not elevate her claim by protesting her employer’s decision to fire her for signing the advertisement. The court noted that “an employee may not insulate herself from termination by covering herself with the cloak of Title VII’s opposition protections after committing non-protected conduct that was the basis of the decision to terminate.” The court reasoned that “[i]f subsequent conduct could prevent an employer from following up on an earlier decision to terminate, employers would be placed in a judicial straight-jacket not contemplated by Congress.”
43 Where an employer terminated at-will employees but offered them a chance to serve as independent contractors if they signed releases of all existing claims (including but not limited to discrimination claims), the employer’s denial of the independent-contractor arrangement to terminated employees who refused to sign that release did not constitute an adverse action for purposes of Section 2000e-3(a). E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015) (“[T]he terminated agents were not entitled to convert to independent contractor status…. And the [EEOC] has cited no legal authority for the proposition that an employer commits an adverse action by denying an employee an unearned benefit on the basis of the employee’s refusal to sign a release.”).
44 In Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323 (3d Cir. 2015), the plaintiff failed in her attempt to convince the court that a jury could regard her employer’s misconduct finding as pretextual:
Jones claims that “she never falsified her timesheets” and suggests that this supports an inference that SEPTA’s actions were motivated by a desire for revenge rather than a bona fide belief that Jones had stolen wages…. The District Court found no evidence supporting Jones’s denial of wrongdoing, however, and also rightly noted that showing that an employer incorrectly found an employee guilty of misconduct is insufficient to prove retaliation anyway. Jones, 796 F.3d at 330.
45 In Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 331 (3d Cir. 2015), the Court of Appeals applied the Staub / McKenna framework but held that the plaintiff failed to point to evidence that her supervisor’s animus proximately caused her employer’s decision to fire her for misconduct.
46 For a discussion of Nassar’s implications for summary judgment practice, see Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257, 259 (3d Cir. 2017).