1 District Judge for the Northern District of Texas, sitting by designation.

1 United States Court of Appeals

Fifth Circuit



## FILED

February 2, 2005

Charles R. Fulbruge III

Clerk REVISED FEBRUARY 9, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________________

No. 03-20992

____________________________

SUSAN SEPTIMUS,

Plaintiff - Appellee - Cross-Appellant,

vs.

THE UNIVERSITY OF HOUSTON;

THE UNIVERSITY OF HOUSTON

SYSTEM,

Defendants - Appellants - Cross-Appellees.

_____________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________________________________

Before WEINER and PRADO, Circuit Judges, and KINKEADE, District Judge. 1

KINKEADE, District Judge:

Susan Septimus (“Septimus”) filed claims for gender discrimination, retaliation, and hostile

work environmen t against the University of Houston and the University of Houston System

(collectively, “the University”). Septimus’s discrimination and hostile work environment claims and

one of her retaliation claims were dismissed on summary judgment. Because Septimus failed to2

establish a genuine issue of material fact regarding the pretext elements of her gender discrimination

claim and one of her retaliation claims, summary judgment on these claims was proper. Septimus’s

hostile work environment claim was also properly dismissed, because she failed to set forth sufficient

evidence that the alleged harassment was severe or pervasive. Septimus’s remaining retaliation claims

proceeded to trial. With regard to these claims, the court holds that they were subject to a “but for”

causation standard rather than the “motivating factor” standard used in the trial court’s charge to the

jury. The trial court’s grant of partial summary judgment is AFFIRMED, the judgment on Septimus’s

two retaliation claims that went to trial is REVERSED due to the erroneous jury charge, and the case

is REMANDED for further proceedings consistent with this opinion.

I. Facts and Proceedings

Septimus was an Assistant General Counsel fo r t he University who handled business and

transactional matters. In December 1997, after the resignation of Associate General Counsel Bonnie

Weisman, the University posted an open Associate General Counsel (“AGC”) position for litigation

and employment matters. In early 1998, AGC Jo seph Williams (who held a “business counsel”

position) also resigned from the

University, which left open two AGC positions. Brian Nelson, an outside candidate, was interviewed

for the litigation and employment AGC position on January 9, 1998.

Later that da y, Sept imus told the University’s General Counsel Dennis Duffy that she was

interested in being prom oted to the AGC position responsible for business matters. Duffy responded

that he would not consider her for promotion becaus e he want ed someone with management

experience. Duffy further told Septimus that she had not “stepped up t o t he plat e” in her current

position to assume management responsibilities. Nelson was ultimately hired by Duffy as an AGC.3

Although the University contends that Nelson was hired for the employment and litigation counsel

po sit io n formerly held by Weisman, the record reflects that Nelson actually handled business and

contractual matters. Septimus admits she was not seeking the employment and litigation counsel

position, but she claims that Nelson was actually hired for the business counsel position vacated by

Williams. She thus contends that Duffy’s decision to hire Nelson instead of her for that position was

rooted in gender discrimination.

On March 10, 1998, Duffy spent two hours in Septimus’s office “haranguing” her while they

discussed work matters. Nelson watched and Septimus sobbed uncontrollably. Nelson described this

incident as intimidating and inappropriate. Septimus filed an internal discrimination complaint with

the University later that month. She also filed an EEOC charge of discrimination regarding the

denied promotion. Septimus further alleged in her EEOC charge that Duffy created a hostile work

environment.

Because other female employees in the Office of t he General Counsel (“OGC”) had also

complained about Duffy, the University engaged attorney Deborah McElvaney to investigate. In her

report dated April 16, 1998, McElvaney concluded there was sufficie nt evidence that Duffy had

discriminated against Septimus in hiring Nelson and that he created a hostile work environment. She

also thought that the evidence did not support Septimus’s claim that Duffy retaliated against her for

filing her internal complaint of discrimination and for her participation in the investigation.

After McElvaney provided her report to University President/System Chancellor Art Smith,

he formed a committee of three University administrators to review McElvaney’s work. Ultimately,

the committee decided that none of Septimus’s complaints had merit and denied her internal grievance

on all of her claims – gender discrimination, hostile work environment and retaliation.4

On May 29, 1998, Smith offered Septimus the choice of remaining in the OGC (supervised

by Duffy) or transferring to the position of Director of Contracts Administration (“DCA”), where she

would work under a different management group. Sm ith’s offer to move Septimus to contracts

administration was conditioned on the requirement that she discontinue practicing law on behalf of

the University. Smith’s policy was that employees who did not report to the OGC could not practice

law. Additionally, Smith conditioned the transfer offer on Septimus’s pro viding a release of her

claims against the University. Septimus initially refused the transfer, but eventually accepted it after

Smith dropped the requirement that she sign a release.

Septimus began her new job as DCA in July 1998, reporting to John Martin. In her new

position, Septimus was required to work with the OGC on any legal issues, relying upon the expertise

and judgment of the lawyers in the OGC. She was not permitted to negotiate, modify or draft

contracts.

In early March 1999, Ron Miller, another employee who reported to Martin, announced his

retirement. Miller’s title was Director of Procurement and Campus Services. Prior to leaving, Miller

suggested to Martin that Septimus serve as his interim replacement. Despite that recommendation,

Sept imus was denied the interim position, because Martin’s supervisor Randy Harris decided to

combine Miller’s former position with that of Ann Lamar. That change caused no additional salary

expense since Lamar w as already earning the salary of an interim division director. Lamar was

appointed to the retitled position of Interim Execut ive Director of Procurement and Auxiliary

Services. Septimus views these events as a promotion she received, but that was later rescinded, and

claims that the University retaliated against her by awarding the position to Lamar instead. After

Lamar’s appointment to Interim Director, she became Septimus’s supervisor and Septimus no longer5

reported directly to Martin.

A lthough Septimus was then reporting to Lamar, Martin criticized her in late 1999 for

suggesting revisions to contracts without coordinating her advice with that of the OGC. Septimus

was upset at the criticism and resigned from the University in December 1999. After Septimus left,

her responsibilities were given to Nelson in addition to his duties as an AGC. In this new role, Nelson

continued reporting to the OGC.

Septimus sued the Un i versity in September 2000, alleging 1) gender discrimination related

to the hiring of Nelson instead of her for the AGC position; 2) retaliation based upon her transfer to

the DCA position; 3) re t aliat io n based upon being denied the Interim Director position; 4) hostile

work environment; and 5) retaliation through constructive discharge. The dist rict court granted

partial summary judgment in favor of the University on Septimus’s claims for gender discrimination,

hostile work environment, and the retaliation claim related to the Interim Director position awarded

to Lamar. On Septimus’s claims of retaliatory transfer and constructive discharge, the district court

found that genuine issues of material fact existed in the summary judgment record, and denied

summary judgment.

The case proceeded to trial on the remaining retaliation claims related to her transfer to the

DCA position and her alleged constructive discharge. The jury found for Septimus on these claims

and awarded damages. The University now appeals the judgment entered for Septimus, and Septimus

cross-appeals the district court’s grant of partial summary judgment.

II. Discussion2 Industrias Magromer Cueros y Pieles v. Louisiana Bayou Furs, Inc., 293 F.3d 912, 922 (5 th Cir.

2002); Russell v. Plano Bank & Trust, 130 F.3d 715, 721 (5 th Cir. 1997) cert. denied, 523 U.S. 1120, 118

S.Ct. 1801, 140 L.Ed.2d 941 (1998).

3 Russell, 130 F.3d at 721.

4 Taita Chemical Co., Ltd. v. Westlake Styrene, LP, 351 F.3d 663, 668 (5 th Cir. 2003), citing

Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 424 (5 th Cir. 1990).

5 Russell, 130 F.3d at 721; Turnage v. General Elec. Co., 953 F.2d 206, 211-112 (5 th Cir. 1992).

6 A. Challenged Jury Instructions

The University appeals the jury’s verdict on t hese claims, arguing that the district court

incorrectly instructed the jury regarding the applicable standard of proof for Septimus’s retaliation

claims.

1. Standard of Review

The University did not object to the jury instructions in the district court, and its position was

not made clear to the court in some other manner. Accordingly, this court’s consideration of the

issue is limit

ed to plain error review. 2 For an appellant to prevail under the plain error standard, it

must show 1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3)

the plain error must affect substantial rights; and 4) not correcting the error would seriously impact

the fairness, integrity, or public reputati on of judicial proceedings. 3 The plain error exception is

designed to prevent a miscarriage of justice where the error is clear under current law. 4

In determining whether a particular jury inst ruct ion was erroneous, we consider the jury

charge as a whole. 5 “An inadequate instruction merits reversal when ‘the charge as a whole leaves

us with the substanti al and ineradicable doubt whether the jury has been properly guided in its6 Turnage, 953 F.2d at 211-12, quoting Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 189

(5 th Cir. 1991).

7 Accordingly, the court need not consider whether the Supreme Court’s recent decision in Desert

Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L.Ed.2d 84 (2003), or this court’s decision in

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5 th Cir. 2004) will affect this case.

8 Pineda v. United Parcel Service, Inc., 360 F.3d 483, 487 (5 th Cir. 2004); Gee v. Principi, 289

F.3d 342, 345 (5 th Cir. 2002).

9 329 F.3d 409 (5 th Cir. 2003).

7 deliberations.’” 6

2. Legal Standard for Title VII Retaliation Claims

The parties agree that this case was litigated and trie d as a “pretext” (rather than “mixedmotive”) retaliation

case. 7 Under the pretext framework, after the employee demonstrates a p rima

facie ca se o f ret aliation and the employer carries its burden by stating a legitimate non-retaliatory

reason for the employment action, the burden falls to the employee to establish that the employer’s

permissible reason is actually a pretext for retaliation. 8

Here, the parties disagree as to the proper standard of proof for the final porti on of the above

framework. The University seeks plain error review of the district court’s use of the phrase

“motivating factor” instead of the “but-for” causation standard in submitting Septimus’s retaliation

claims to the jury. Conversely, Septimus contends that the “motivating factor” language employed

by the district court was legally proper, and therefore the jury’s verdict on these claims should not

be disturbed.

Septimus relies primarily on Fabela v. Socorro Indep. School Dist. 9 to support her argument

that the district court’s “motivating factor” language was appropriate for a retaliation claim. In that

case the discharged employee presented direct evidence of retaliation and proceeded upon a mixed-10 Fabela, 329 F.3d at 415, citing Price Waterhouse, 490 U.S. 228, 109 S. Ct. 1775, 104 L.Ed.2d

268 (1988); and Fierros v. Texas Dept. Of Health, 274 F.3d 187, 192 (5 th Cir. 2001).

11 Id., citing Montemayor v. City of San Antonio, 276 F.3d 687 (5 th Cir. 2001); Portis v. First

Natl. Bank, 34 F.3d 325 (5 th Cir. 1994) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L.Ed.2d 668 (1973).

12 Montemayor, 276 F.3d at 692; Portis, 34 F.3d at 328.

13 Pineda, 360 F.3d at 487; Gee, 289 F3d at 345.

14 Pineda, 360 F.3d at 487.

8 motive theory as was the n pro vided for under the framework set out in P rice Waterhouse v.

Hopkins

. 10 This court noted in F abela that it is unusual to have direct evidence of retaliatory intent,

and that in cases based on circumstantial evidence it has “long recognized the well-trod path by which

a plaint iff may demonstrate retaliatory intent through the use of circumstantial evidence and the famed

McDonnell Douglas burden-shifting framew ork.” 11 Because this is a circumstantial evidence

“pretext” case, the standard of proof applied in Fabela and o t her mixed-motive cases is not

controlling here.

The McDonnell Dougl as e videntiary framework applies to Title VII retaliation claims brought

under a pretext theory. 12 Under that framework, the employee’s ultimate burden is to prove that the

employer’s stated r easo n for the adverse action was merely a pretext for the real, retaliatory

purpose. 13 The proper standard of proof on the causation element of a Title VII retaliation claim is

that the adverse employment action taken against the plaint iff would not have occurred “but for” her

protected conduct. 14 This court has “consistently held that in retaliation cases where the defendant

has proffered a nondiscriminatory purpose for the adverse employment action the plaintiff has the15 Pineda, 360 F.3d at 487; see also Montemayor, 276 F.3d at 692 (plaintiff “had the burden of

proving that her termination from the Fire Department would not have occurred ‘but for’ her protected

conduct); Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5 th Cir. 2001) (plaintiff “must

demonstrate that he would not have been terminated ‘but for’ engaging in the protected activity.”); Long v.

Eastfield College, 88 F.3d 300, 305 n.4 (5 th Cir. 1996) (“[t]he ultimate determination in an unlawful

retaliation case is whether the conduct protected by Title VII was a ‘but for’ cause of the adverse

employment decision”).

16 Pineda , 360 F.3d at 488 and 490 n.6.

17 Pineda, 360 F.3d at 487, citing Medina, 238 F.3d at 685, and Long, 88 F.3d at 305 n.4.

9 burden of proving that ‘but for’ the discriminatory purpose he would not have been terminated.” 15

Moreover, we have recently stated that the motivating factor test is “less stringent,” implying that

standard would require a lesser burden of proof. 16 We hold that the district court erred when it used

the term “motivating factor” to instruct the jury in this case.

Because the University did not t imely raise this is sue at trial , the court m ust determ

i ne

whether this error requires reversal under the plain error standard. This court has consistently

required a “but for” standard for proving causation on a Title VII retaliation claim brought under the

pretext framework. 17 Thus, the disputed jury instruction amounts to plain error that should have been

clear or obvious. Even when the jury instructions are viewed in their entirety, the substitution of the

phrase “motivating factor” for “but for” causation causes us to doubt substantially whether the jury

was properly guided in its deliberations. Septimus was held to a lower standard in proving the

causation element of her retaliation claims – the ultimate question in this case – and therefore

substantial rights of the University were prejudiced. Because the jury was improperly instructed, the

outcom e of this case may have been affected. Therefore, failing to correct this fundamental error

could impact the fairn ess o f the judicial process in this case and could result in a miscarriage of

justice.18 Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297 (5 th Cir. 2002).

19 Fed. R. Civ. P. 56(c); Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 28, 141 L.Ed.2d 788

(1999).

20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

21 411 U.S.792, 93 S.Ct. 1817.

22 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed.2d 105 (2000).

10 B. Claims Dismissed on Summary Judgment

Septimus cro ss-appeals the district court’s entry of summary judgment on her gender

discrimination claim, one of her retaliation claims, and her hostile work environment claim.

1. Standard of Review

A district court’s grant of summary judgment is reviewed de novo, applying the same standard

as the district court. 18 Summary judgment is appro priate when, viewing the evidence and all

just ifiable inferences in the light most favorable to the non-moving party, there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. 19 The appropriate

inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” 20

2. Denial of Promotion - Position Awarded to Brian Nelson

To survive summary judgment, Septimus must satisfy the burden shift ing test found in

McDonnell Douglas, 21 and recently reaffirmed in Reeves v. Sanderson Plumbing Prods. Inc. 22 Under

this test, the plaint iff must first establish a prima facie case of discrimination, and if she successfully

does so, the defendant shall respond by setting forth its legitimate, non-discriminatory reason for its23 Reeves, 530 U.S. at 142, 120 S. Ct. at 2106; Okoye v. The University of Texas Houston Health

Science Center, 245 F.3d 507, 512 (5 th Cir. 2001).

24 Okoye, 245 F.3d at 512.

25 Id.

26 Id. at 512-13; Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5 th Cir. 1999).

11 decision. 23 If the defendant produces a legitimate reason, any presumption of discrimination raised

by the plaint iff’s prima facie case vanishes. 24 However, the plaintiff may still avoid summary

judgment if she demonstrates a genuine issue of material fact whether the legitimate reasons proffered

by the defendant are not its true reasons, but instead are a pretext for discrimination. 25

Septimus may establish her prima facie c ase by sho wing that she 1) is a member of a

protected class; 2) was qualified for her position; 3) was subjected to an adverse employment action;

and 4) was replaced by someone outside the protected class, or that other similarly situated persons

were treated more favorably. 26

The summary judgment record shows that in January 1998, the University posted an opening

for an AGC to handle employment and lit igation matters. Although Septimus admits she was not

qualified for that position, she expressed interest to Duffy in being prom oted to Williams’s former

AGC position, for which she was qualified. Earlier that day, before Septimus expressed interest in

being prom oted, Duffy had interviewed Nelson. Septimus claims that although Nelson was officially

hired for the litigation position, for which she admits she was unqualified, he was actually hired, over

her, for the business counsel position she sought. Accepting these facts as true, we presume that

Septimus sufficiently established her p rima facie case. Continuing with the applicable burden shifting

analysis, the University has set forth a legitimate, non-discriminatory reason for its actions: Septimus27 Roberson v. Alltel Information Svcs., 373 F.3d 647, 654 (5 th Cir. 2004); Rutherford v. Harris

County, Texas, 197 F.3d 173, 180 n.6 (5 th Cir. 1999).

12 was less qualified than Nelson for the litigation counsel position.

Finally, we agree with the di st rict court’s conclusion that Septimus did not raise a genuine

issue of m at erial fact regarding pretext. There is no dispute that she was not qualified for the

litigation counsel position for which the University says it hired Nelson. Furthermore, even assuming,

as Septimus asserts, that the University actually hired Nelson for a business counsel position similar

to the position Septimus wanted, she admits that when she raised the issue with Duffy, he stated that

because she had not “stepped up” to assume management responsibilities, she would not be prom oted

to such a position.

Septimus offered no evidence to contest the reasons Duffy gave to support his decision. The

mere fact that Nelson was hired instead of Septimus does not sufficiently raise a material fact issue

concerning discriminatory intent by Duffy. Septimus’s belief that Duffy’s decision was motivated by

discrimination, however genuinely held, is not sufficient evidence of pretext. 27 Septimus’s reliance

on McElvaney’s conclusion that she suffered gender discrimination wi th respect to the hi ri ng of

Nelson and the EEOC’s determination letter containing a “reasonable cause” finding in her favor as

evidence of discrimination also do not permit her to proceed past t he summary judgment stage.

Septimus did not dispute that she was unqualified for the litigation counsel position, and she proffered

no evidence to contest the validity of Duffy’s statement that she would not be prom oted because she

lacked management experience. Therefore, upon review of the relevant underlying facts related to

this incident, the court concludes that summary judgment was appropriately entered because Septimus

failed to set forth sufficient evidence of pretext.28 Pineda, 360 F.3d at 487; Gee, 289 F.3d at 345.

29 Pineda, 360 F.3d at 487.

13

3. Rescinded Interim Promotion

- Position Awarded to Ann Lamar

Septimus contends that the University retaliated against her because she did not receive the

Interim Director position upon Miller’s retirement in March 1999. As stated above with respect to

her other retaliation claims, Septimus must first demonstrate a prima facie case of retaliation. The

elements of her prima facie evidentiary showing are 1) that she engaged in a protected activity; 2)

that an adverse employment action occurred; and 3) that a causal link existed between the protected

activity and the adverse action. 28 If Septimus successfully establishes her p rima facie case, the

burden then shifts to the University to state a legitimate non-retaliatory reason for its action. At this

point, any presumption of retaliation drops from the case, an d Septimus must show that the

University’s stated reason is actually a pretext for retaliation. 29

The record shows that Miller recommended to his supervisor, Martin, that Septimus replace

him on an interim basis, and the record further shows that Miller announced Septimus as his interim

replacement. However, there is no evidence that Martin was the individual who actually had

authority to appoint Septimus to the interim post. When Martin sought Harris’s approval for the

appointment, Harris instead decided to reorganize the department and appoint Lamar. On these facts,

the University argues that Septimus never received the interim promotion and therefore the University

never revoked it, leaving her without the adverse employment action that is needed to establish her

prima facie ca se. Ho wever, Septimus testified that Martin told her Harris had approved the

promotion. Therefore, we indulge this inference in Septimus’s favor and assume that she did receive

the interim promotion and that it was later revoked.30 Green v. Adminstrators of the Tulane Educational Fund, 284 F.3d 642, 655 (5 th Cir. 2002);

Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298-99 (5 th Cir. 2001).

31 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998).

14 Septimus has not raised a material fact issue regarding whether Harris had a retaliatory motive

when he ult ima

t ely decided to deny her the interim promotion. T o support this contention, she

provides proof that H arris was aware of her discrimination complaints and that the denial of the

interim promotion occurred only ten months after her March 1998 internal complaint, while her

EEOC charge was pending. Addit io nally, Septimus cites to “ongoing harassment” by Duffy and

speculation by Miller that Duffy was somehow involved as proof of retaliatory intent. Septimus has

not claimed t hat Harris, the decision-maker, harassed her. All of this evidence amounts to mere

speculation that Harris retaliated against her by awarding the position to Lamar instead. The district

court properly entered summary judgment on this claim.

4. Hostile Work Environment

Finally, Septimus appeals the dismissal of her hostile work environment claim on summary

judgment. The plaintiff in a hostile work environment claim must establish that 1) she belongs to a

protected class; 2) she was subjected to unwelcome sexual harassment; 3) the harassment was based

on sex; 4) the harassment affected a term, condition or privilege of employment; and 5) the employer

knew or should have known of the harassment and failed to take remedial action. 30 Conduct

sufficient to create a hostile working environment must be severe or pervasive. 31 To be actionable,

the alleged harassment must have created an environment that a reasonable person would find hostile32 Woods, 274 F.3d at 299.

33 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

34 Shepard v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5 th Cir. 1999).

15 or abusive. 32 Whet her an environment is hostile or abusive depends on the totality of the

circumstances, including factors such as the frequency of the conduct, its seve rity, the degree to

which the conduct is physica lly t hreatening or humiliating, and the degree to which the conduct

unreasonably interferes with an employee’s work performance. 33

Septimus argues that the district court incorrectly found that there was no genuine issue of

material fact as to whether the harassment alleged was sufficiently pervasive to establish a claim of

hostile work environment under Title VII. Specifically, Septimus cites to evidence of the two-hour

“harangue” in her office, which frightened her and made her feel useless and incompetent. Septimus

also presents evidence that Duffy once questioned her about a presentation in a “mocking tone,” and

refers to a comment by Duffy that she “was like a needy old girlfriend.” All of Septimus’s other

summary judgment evidence on this claim pertained to other women in the OGC, not Septimus, and

therefore is not relevant.

Much of the complained-of conduct was, as the district court noted, “boorish and offensive.” 34

However, Septimus did not personally experience most (if not all) of the conduct complained of by

the other women. As to conduct that was directed at her, Septimus relies on the “harangue” incident,

the “mocking tone” directed at her on one occasion, and Duffy’s “needy old girlfriend” remark, with

nothing more. The district court properly found that these incidents were collectively insufficient to

establish that Duffy’s harassment was severe or pervasive enough to make her working environment

objectively hostile or abusive. Accordingly, this claim was correctly dismissed on summary judgment.16

III. Conclusion

Septimus has not raised a genuine issue of material fact that the University’s proffered reasons

for denying her an AGC position and the interim promotion into Miller’s former position were,

respectively, pretexts for gender discrimination or retaliation. She has also failed to raise a genuine

issue of material fact whether Duffy’s alleged harassment of her was severe or pervasive. Therefore,

the district court’s judgment on these claims is AFFIRMED. The court further holds that with regard

to Septimus’s retaliation claims related to her transfer to the DCA po sition and her alleged

constructive discharge, the jury should have been instructed to apply a “but for” causation standard.

Accordingly, the district court’s judgment on these claims is REVERSED, and the case is hereby

REMANDED for further proceedings consistent with this opinion. The remaining issues raised in

this appeal are related to the porti on of the trial court’s judgment that we have reversed. Therefore,

because we have reversed the district court’s judgment on these claims, we need not reach any of the

additional issues raised by this appeal. AFFIRMED in part; REVERSED and REMANDED in part.