Case 5:11-cv-00290-CAR Document 33 Filed 07/31/13 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
SANDRA H. HUBBARD,
GEORGIA FARM BUREAU
MUTUAL INSURANCE COMPANY,
No. 5:11?CV?290 (CAR)
ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION
In light of the Supreme Court’s recent decision in University of Texas
Southwestern Medical Center v. Nassar,1 Defendant Georgia Farm Bureau Mutual
Insurance Company has moved for reconsideration [Doc. 29] of the Court’s March 29,
2013 Order [Doc. 22] denying summary judgment for Defendant and allowing
Plaintiff’s two Title VII retaliation claims to proceed to trial during the August 19, 2013
trial term. The parties have fully briefed the Motion. Having thoroughly considered
the parties’ positions and the relevant law, the Court GRANTS in part and DENIES
in part Defendant’s Motion [Doc. 29]. For the reasons explained below, Defendant is
1 133 S.Ct. 2517 (June 24, 2013).
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entitled to summary judgment on Plaintiff’s retaliation claim based on her report of
sex discrimination, but triable issues of fact remain as to Plaintiff’s retaliation claim
based on her sexual harassment complaint.2
In Nassar the Supreme Court ruled that “Title VII retaliation claims must be
proved according to the traditional principles of but?for causation,” requiring “proof
that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.”3 Because this Court originally evaluated
Plaintiff’s prima facie case under the lessened “motivating factor” causation standard
applicable to Title VII status?based discrimination claims, it must now re?assess
Plaintiff’s prima facie case in light of the heightened “but?for” causation standard now
applicable to Title VII retaliation claims.4
To establish a “but?for” causal relation, Plaintiff must prove that “the desire to
retaliate was the “but?for” cause of [her termination].”5 Plaintiff can satisfy her burden
if she can prove a “close temporal proximity” between the time her employer learned
2 The Court incorporates the facts viewed in the light most favorable to Plaintiff as set forth in its
original Order on Defendant’s Motion for Summary Judgment dated March 29, 2013 [Doc. 22].
3 Id. at 2533.
4 Defendant argues that Nassar eliminated application of the McDonnell?Douglas analysis to Title VII
retaliation claims based on circumstantial evidence like the ones at issue here. The Court, however,
does not agree. See Sims v. MVM, Inc., 704 F.3d 1327 (11th Cir. 2013) (holding it appropriate to continue
to apply McDonnell?Douglas framework to ADEA cases after the Supreme Court’s holding in Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009), adopting same “but?for” causation in ADEA cases).
5 Nassar, 133 S.Ct. at 2528.
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about her protected activity and her discharge,6 but this standard requires that the
action be “very close.”7
Plaintiff fails to satisfy her burden with regard to her retaliation claim based on
her complaint of sex discrimination. Plaintiff complained on September 18, 2008, and
was terminated almost three months later on December 4, 2008. Without more, this
cannot meet the “very close” temporal proximity required to establish but?for
causation. In its original Order, the Court also cited evidence that only a week to ten
days after her complaint, Board members began meeting with Plaintiff’s direct
supervisor about her employment. While this evidence, combined with the temporal
proximity of less than three months, was enough to satisfy a “motivating factor”
causation standard, it is not enough to satisfy the “but?for” causation standard.
Indeed, the evidence indisputably shows that the meetings were also held to discuss
Mrs. Stapleton’s complaint letter regarding Plaintiff’s unprofessional conduct—the
very conduct for which Defendant maintains Plaintiff’s refusal to apologize for was
the reason she was terminated. Additionally, the evidence shows that after Plaintiff
complained about sex discrimination, both the Board and Plaintiff’s direct supervisor
independently acknowledged the inappropriate conduct and re?affirmed that Plaintiff
6 See Raspanti v. Four Amigos Travel, Inc., 266 F. App’x 820, 823 (11th Cir. 2008) (citing Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (FLSA retaliation case using but?for causation
7 Id. (citations omitted).
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had no obligation to pay the secretary. Accordingly, the Court finds no reasonable
juror could determine that Plaintiff’s termination would not have occurred if she had
not complained of sex discrimination. Thus, Plaintiff fails to establish her prima facie
case as to her retaliation claim based on her complaint of sex discrimination, and
Defendant is entitled to judgment as a matter of law as to this claim.
The heightened “but?for” causation standard, however, does not change the
Court’s original reasoning or the ultimate conclusion regarding Plaintiff’s retaliation
claim based on her sexual harassment complaint. The temporal proximity between
Plaintiff’s report of sexually offensive conduct on November 12, 2008, and her abrupt
termination only three weeks later on December 4, 2008, satisfies the “very close”
standard necessary to establish “but?for” causation. While temporal proximity alone
meets this heightened standard, the evidence also shows Defendant made no effort to
investigate Plaintiff’s complaint despite her supervisor’s contact with Defendant’s
human resources director and his representation that the director would meet with
Plaintiff and investigate her complaint. Moreover, no evidence exists showing
Plaintiff exhibited any unprofessional or insubordinate actions or behavior warranting
any kind of reprimand after she made this complaint. Instead, the record shows
Plaintiff continued to perform her job duties without incident. From this evidence, a
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reasonable jury could find that Defendant would not have terminated Plaintiff had she
not complained of sexual harassment.
Defendant argues the indisputable reason it terminated Plaintiff is because she
failed to apologize for her unprofessional conduct to an influential policy holder who
threatened to remove his business if he did not receive an apology. Defendant
maintains that Plaintiff cannot meet the “but?for” causation standard because she
cannot prove that if she had apologized, Defendant would have still terminated her
for her alleged activities. Plaintiff’s burden, however, is to show that she would not
have been fired but for her complaint of sexual harassment; as set forth above, Plaintiff
has met her burden. As explained in the original Order, Defendant’s arguments must
be presented to the jury in response to Plaintiff’s claim that her failure to apologize is
merely pretext for unlawful retaliation.8
In accordance with the foregoing, Defendant’s Motion for Reconsideration
[Doc. 29] is GRANTED in part and DENIED in part. For the reasons explained
herein, the Court MODIFIES its Order dated March 29, 2013, [Doc. 22] as follows:
Defendant’s Motion for Summary Judgment [Doc. 18] is GRANTED in part and
DENIED in part. Defendant is entitled to summary judgment on Plaintiff’s retaliation
8 The Court’s pretext analysis with respect to this claim need not be re?addressed.
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claim based on her report of sex discrimination, but triable issues of fact remain as to
Plaintiff’s retaliation claim based on her sexual harassment complaint.
The pre?trial conference of this case is scheduled for Thursday, August 8, 2013,
at 10:00 a.m. The parties’ Proposed Pretrial Order9 is due on Monday, August 5, 2013.
SO ORDERED, this 31st day of July, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
9 See Required Pretrial Order form at Doc. 23.