United States: Third Circuit Substitutes "Likely Reason" For "But For" At Summary Judgment Stage Of Retaliation Case

Last Updated: April 10 2017
Article by Simone Francis

In Carvalho-Grevious v. Delaware State University, No. 15-3521 (March 21, 2017), the Third Circuit Court of Appeals addressed an important evidentiary question: What evidence must a plaintiff adduce as part of a prima facie case of retaliation to survive a motion for summary judgment? The court held that a plaintiff alleging retaliation has a lesser burden at this stage, namely to produce sufficient evidence to raise the inference that the protected activity was the "likely reason" for the adverse employment decision. In so holding, the Third Circuit parted ways with the Sixth and Tenth Circuits, which have held that—even at the prima facie stage—a plaintiff must demonstrate that "but for" the protected activity, the challenged employment decision would not have been made.

Factual Background

Dr. Millicent Carvalho-Grevious was hired by Delaware State University in August of 2010 as an associate professor and chair of the Department of Social Work. Although her contract provided that she could be reappointed, her term in each of these positions was set to end on June 30, 2011. As department chair, Dr. Grevious was responsible for facilitating the university's efforts to obtain reaccreditation for the social work program. In addition, Dr. Grevious had overall responsibility for managing the department and supervising the staff, which consisted of nine individuals at the start of her tenure.

Dr. Grevious faced difficulty with the reaccreditation process from the outset of her employment, and early in her term, she made personnel changes that led to the filing of complaints by some of the affected individuals. In addition, Dr. Grevious's relationship with her supervisor, the then-interim dean of the College of Education, Health and Public Policy, deteriorated, and by January of 2011, she voiced her dissatisfaction with his leadership to the university's provost and  complained that he had made racially discriminatory statements and engaged in behavior that she regarded as sexist. The following month, Dr. Grevious contested the dean's unfavorable evaluation of her performance, and although the dean responded by amending the evaluation in part, the revised evaluation still reflected negatively on her leadership abilities. Dr. Grevious encountered another setback when the faculty voted to appoint a different individual as department chair effective June 30, 2011.  

In March of 2011, Dr. Grevious filed a grievance with the provost in which she complained about the dean's alleged sexual harassment and asserted that he had engaged in retaliation by furnishing a negative performance evaluation after she complained. The university responded that its investigation did not substantiate any policy violations and thus no further action was necessary. Dissatisfied with that outcome, Dr. Grevious filed a formal complaint with the university's human resources department on April 14, 2011. On the same day, the university received notification that its request for postponement of the reaccreditation deadline was denied.  After the university informed her that it intended to transition her duties as chair of the department to her successor approximately seven weeks earlier than initially announced (but would continue to pay her the salary associated with that position through the end of her the term, as stated in her contract), she filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) on May 20, 2011.

On June 21, 2011, the university notified Dr. Grevious that it would issue a terminal contract to her for the position of associate professor for the 2011–2012 academic year in place of the renewable contract that it had offered to her on April 1, 2011. In a second EEOC charge, Dr. Grevious contended that this decision was made in retaliation for the filing of the initial charge.  She eventually filed a third EEOC charge in 2012, after the university decided not to reappoint her for the 2012–2013 academic year based upon her strained relationship with her colleagues.  In the final charge, Dr. Grevious complained that her employment as associate professor had been terminated in retaliation for filing the two prior EEOC charges.

Dr. Grevious then instituted a lawsuit in the U.S. District Court for the District of Delaware. The university, along with the dean and the provost, moved for summary judgment on Dr. Grevious's claims that the adverse employment actions violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981. The district court concluded that no reasonable jury could find that Dr. Grevious would have been retained as chair of the department or kept her renewable contract but for her complaints, and held that summary judgment was therefore warranted because Dr. Grevious could not establish the causation element of her prima facie case. The court also ruled that Dr. Grevious did not establish that the provost's non-retaliatory explanation for the issuance of a terminal contract was pretextual.

The Third Circuit's Decision

The Third Circuit reversed the lower court's decision in part. The appellate court disagreed that a plaintiff alleging retaliation in violation of Title VII or Section 1981 must demonstrate that retaliatory animus was the "but for" cause of the challenged employment action at the prima facie stage. Instead it held that at the prima facie stage, a plaintiff need only produce enough evidence to justify an inference that the protected activity was the "likely reason" for the adverse employment action. The Third Circuit reasoned that any other rule would eliminate the McDonnell Douglas burden shifting framework in retaliation cases. 

Turning to Dr. Grevious's allegation that she was ousted as the department chair in retaliation for filing complaints, the court held that in light of the undisputed evidence that the department's efforts to obtain reaccreditation faltered under her leadership, no reasonable juror could conclude that Dr. Grevious's April 14, 2011 human resources complaint against the dean was the reason for the university's decision not to renew her term as chair of the department. Acknowledging that only a short period elapsed between the filing of the first EEOC complaint and the university's notification that Dr. Grievous would be relieved of her duties as chair of the department prior to the expiration of her contract, the court concluded based upon a "context specific" analysis that the temporal proximity was not sufficient to meet her burden. And even if Dr. Grevious could establish causation, she had not created any doubt about the legitimacy of the university's decision to change direction in the limited time before expiration of the deadline for reaccreditation, which the university had unsuccessfully attempted to extend.

Although affirming the district court on the chairperson claim, the Third Circuit held that application of the "likely reason" standard at the summary judgment stage required that Dr. Grevious be allowed to proceed to trial on the claim that the decision to discharge her from the assistant professor position was retaliatory. The court found it noteworthy that the complaints about Dr. Grevious started soon after she was hired but the university nonetheless initially recommended issuance of a renewable contract and only later decided to offer her a terminal contract instead. The Third Circuit held that the defendants met their burden of production by pointing out that the initial offer of a renewable contract was not final and identifying Dr. Grevious's inability to work with others as the rationale, but concluded that Dr. Grevious had identified sufficient weaknesses in the university's explanation, including its failure to follow its practice of placing a faculty member on a professional improvement plan and allowing the faculty member to meet with a vice president before making a final decision.

Turning to Dr. Grevious's claims against the dean, the Third Circuit agreed that dismissal was proper based upon the record that demonstrated that the dean's animus predated any protected activity and that his negative evaluation did not have any demonstrated impact on the decision to issue a terminal contract rather than a renewable one.

Key Takeaways

The decision of the Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), which held that Title VII retaliation claims must be evaluated using a 'but for' causation standard, rather than a mixed motive standard, was widely understood to constitute a victory for employers facing retaliation claims. Although the rule announced in Nassar makes it more difficult for a plaintiff to prevail at trial, the decision in Carvalho-Grevious could make it easier for plaintiffs asserting retaliation claims to survive motions for summary judgment in the Third Circuit (which covers Delaware, Pennsylvania, New Jersey, and the U.S. Virgin Islands). Interestingly, the first court within the circuit to apply the "likely reason" standard concluded that summary judgment in the employer's favor was warranted. Horvath v. Urban Redevelopment Authority of Pittsburgh, No. 15-668 (W.D. Pa. Mar. 29, 2017).

It is too soon to conclude that this new standard will bring no noticeable change in the frequency with which employers defending retaliation claims prevail at the summary judgment stage. Given the possibility that it may now become more challenging to secure judgment prior to trial in such cases, Carvalho-Grevious provides yet another reminder of the importance of adhering to existing procedures when deciding whether to terminate, or otherwise alter in a materially adverse manner, the terms of an individual's employment. Failure to comply with internal protocols or document the performance-based reasons for an employment decision with timely evaluations or properly conducted investigations could lead to greater difficulty in defending decisions at the summary judgment stage given the reduced quantum of proof that plaintiffs in the Third Circuit must now offer to establish a prima facie case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.