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Worker’s retaliation claim survives

An employee’s retaliation suit against the supervisor he claimed made repeated comments about his protected activity was dismissed improperly, according to a 4th U.S. Circuit Court of Appeals panel.

The panel said the district court erred when it dismissed the employee’s complaint because it sufficiently bridged the gap between the protected activity and the adverse employment action.

The per curiam decision is Tutt v. Wormuth (VLW 021-2-296). Senior Judge Dennis W. Shedd and Judges J. Harvie Wilkinson III and Pamela A. Harris sat on the panel.

‘Retaliatory animus’

Louis M. Tutt III filed claims of discrimination and retaliation under Title VII of the Civil Rights Act against Christine Wormuth, secretary of the Army. The U.S. District Court for the Eastern District of Virginia dismissed both claims, saying Tutt failed to state a claim.

On appeal, Tutt argued the district court erred when it said he had not pleaded sufficient facts to show causation. The lower court, he said, concentrated only on the gap between his protected activity and the adverse action and disregarded evidence of retaliatory animus that happened during that time frame.

To permit an inference of causation, a plaintiff usually may establish that the adverse action “bears sufficient temporal proximity to the protected activity,” the circuit judges said citing 2001’s Clark County School District v. Breeden.

But if that temporal proximity is missing, courts can look to the intervening time period for other evidence of retaliatory animus. And that can be enough to satisfy causation.

“Here, the district court correctly recognized that the 15- or 16-month gap between Tutt’s protected activity and his permanent reassignment is insufficient to establish causation based on temporal proximity, and in fact the gap significantly weakens any inference of causation,” the judges wrote. “However, Tutt’s complaint provides additional facts, including his supervisors’ repeated comments regarding Tutt’s protected activity and events occurring prior to the adverse action, that — when taken as true as they must be at this stage — are sufficient to plausibly bridge the gap between Tutt’s protected activity and his permanent reassignment.”

There may be legitimate reasons for Wormuth’s actions that Tutt didn’t address in his complaint, but it was improper for the district court to dismiss his claim at this phase of the proceedings.

If Tutt’s explanation was credible, his complaint should survive a motion to dismiss under Rule 12(b)(6), regardless of whether there was another, more likely explanation, the court said.

As such, “when all reasonable inferences are drawn in Tutt’s favor, we conclude that he plausibly alleged that his permanent reassignment was caused by retaliatory animus such that this claim survives a Rule 12(b)(6) motion.”

Discrimination claim dismissed

Tutt said he was required to plead a proper comparator and that the district court disregarded facts in his complaint that established an inference of discrimination. It was error, he argued, for him to be held to this heightened pleading standard.

While the circuit judges agreed with Tutt’s contention that plaintiffs are not required to offer a similarly situated comparator to prove a discrimination claim, they decided that the district court made no error in this case.

“[B]ased on our review of the record, we conclude that the district court nevertheless did not err by dismissing this claim because Tutt failed to plead sufficient facts to ‘nudge[] his claim[] of invidious discrimination across the line from conceivable to plausible,’ either through comparator evidence or other indicia of discrimination,” the panel explained.