Supervisor’s comments about protected activity support retaliation lawsuit

Where a supervisor allegedly repeatedly made comments about an employee’s protected activity, the employee’s complaint bridged the gap between the protected activity and the adverse employment action, and his retaliation claim was improperly dismissed.

Background

Louis M. Tutt III appeals the district court’s order dismissing his claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964 against Christine Wormuth, Secretary of the Army, for failure to state a claim.

Discrimination

To establish a discrimination claim under Title VII, a plaintiff must eventually put forth a prima facie case of discrimination by establishing that (1) he is a member of a protected class; (2) he suffered an adverse action; (3) his job performance was satisfactory; and (4) the adverse action occurred “under circumstances giving rise to an inference of unlawful discrimination.” The fourth element can be met by showing that “similarly situated employees outside the protected class received more favorable treatment.”

However, in the employment discrimination context, “[t]he prima facie case … is an evidentiary standard, not a pleading requirement.” Thus, a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss. Nevertheless, the factual allegations must still be sufficient “to satisfy the elements of a cause of action created by” Title VII and raise the plaintiff’s “right to relief above the speculative level,”

Tutt argues that the district court erroneously held him to a heightened pleading standard by requiring him to plead a proper comparator and ignored other facts contained in the complaint that he asserts give rise to an inference of discrimination. Tutt is correct that a plaintiff is not required to provide a similarly situated comparator to prove his discrimination claim. However 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.

Retaliation

To establish a prima facie case for retaliation, a plaintiff must show that (1) he engaged in protected activity; (2) the employer took an adverse action against him; and (3) there is “a causal connection between the protected activity and the adverse action.” Tutt argues that the district court erred in determining that he had not pled sufficient facts to show causation because the court focused solely on the gap between his protected activity and the adverse action while ignoring evidence of retaliatory animus that occurred during that period.

Most commonly, a plaintiff may establish that the adverse action bears sufficient temporal proximity to the protected activity to establish an inference of causation. However, “[i]n cases where temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus.”

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. However, Tutt’s complaint provides additional facts, including his supervisors’ repeated comments regarding Tutt’s protected activity and events occurring before 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.

Furthermore, although the district court may have been correct in finding that there are potentially legitimate reasons for appellee’s actions which Tutt failed to address in his complaint, that is not a proper reason to dismiss his claim at this stage. Therefore, when all reasonable inferences are drawn in Tutt’s favor, he plausibly alleged that his permanent reassignment was caused by retaliatory animus such that this claim survives a Rule 12(b)(6) motion.

Affirmed in part, vacated in part and remanded.

Tutt v. Wormuth, Case No. 19-2480, Sept. 8, 2021. 4th Cir. (per curiam) from EDVA at Alexandria (O’Grady). Joshua Erlich, Davia Craumer and Katherine L. Herrmann for Appellant. G. Zachary Terwilliger and Kimere J. Kimball for Appellee.VLW 021-2-296. 6 pp.