But-For Causation and Breaking the Camel’s Back in EEOC Retaliation Case – An Example
Roberts v. State, Department of YouthServices, Case No. 2:13cv335 (M.D. Ala., Feb. 11, 2015)
Arthur Roberts, Jr. was hired by the Alabama Department of Youth Services (DYS) as a Security Officer. Within his first few months of employment Roberts notified his supervisor and other administrators that he was an ordained minister and that he wished to provide volunteer pastoral services to the facility’s young men. DYS gave its approval and scheduled him to begin providing services once a month on Sunday. McCree, Roberts’ immediate supervisor, ridiculed him about his religious activity, teasing him with comments such as “preaching the word today, Minister?” and “You going to get some saved today, ain’t you, Preacher?” McCree also told Roberts not to “come out here with that preaching shit to these kids” because “they don’t want to hear it, ” and McCree stated to another employee, “How in the world is that man [Roberts] going to come out here and preach, when he can’t perform his job he was hired to do[?]”. These comments were made over several months. Roberts filed a charge with the Equal Employment Opportunity Commission (EEOC) and later sued DYS and McCree for religious discrimination hostile work environment claim and for retaliatory discharge.
The district court granted summary judgment on Roberts’ religious discrimination claim. The court decided that McCree’s comments were insufficient to establish objectively severe and pervasive conduct. In other words, they were isolated, off-hand comments. Roberts’ claim was not aided by his testimony that he was still able to perform his job duties.
However, the district court allowed Roberts’ retaliatory discharge claim to go to trial. The central evidence in support of that claim was co-worker testimony that McCree said he intended to “fire [Roberts’s] ass” if he had filed an EEOC charge. Under University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), a retaliation plaintiff must prove that the retaliatory motive was the ‘but-for’ cause of the adverse employment action. Thus, “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer” is required. Nassar, 133 S.Ct. at 1533.
The district court borrowed an analogy from Burrage v. United States, 134 S.Ct. 881 (2014), to explain that but-for causation can exist even when other possible motives are in the mix, such Roberts’ lackluster job performance:
[R]etaliatory intent may still constitute a but-for cause even if it “combines with other factors to produce the result, so long as the other factors alone would not have done so–if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. at 888.
So, even though Robert’s job performance may have contributed to the termination decision, McCree’s comment that he intended to “fire [Roberts’s] ass” if he filed an EEOC complaint raised a genuine issue of material fact as to whether the EEOC charge was “the straw that broke the camel’s back.”