ruled that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the Uniformed Services Employment and Reemployment Rights Act of 1994]” even if the ultimate employment decision is taken by one other than the supervisor with the animus. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (footnotes omitted). The Court did not explicitly state whether this ruling extends to claims under 42 U.S.C. § 2000e-2(m) (which also refers to discrimination as a motivating factor), though it noted the similarity between Section 2000e-2(m)’s language and that of the USERRA.
demand for sex, she told her supervisor it would never happen again. Id. at 211.) If the court concludes that it is appropriate to follow the approach taken in Jin and Holly D. – a question that, as noted above, appears to be unsettled – then the court should consider whether to refer only to a ‘tangible employment action’ rather than an ‘adverse tangible employment action.’ See Jin, 310 F.3d at 101 (holding that it was error to “use[] the phrase ‘tangible adverse action’ instead of ‘tangible employment action’” and that such error was “especially significant in the context of this case, where we hold that an employer is liable when a supervisor grants a tangible job benefit to an employee based on the employee’s submission to sexual demands”). Definition of “supervisor” “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim....” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). See also Moody, 870 F.3d at 217 (“[T]he record here supports the conclusion that Marshall was Moody’s supervisor because (a) the Board empowered him as the custodial foreman to select from the list of substitute custodians who could actually work at New York Avenue School; … (b) the Board conceded that while Moody was on school premises, Marshall served in a supervisory role; (c) the record identifies no other person who was present full time or even sporadically on the school’s premises, or anywhere for that matter, who served as Moody’s supervisor; and (d) since Moody’s primary benefit from her employment was hourly compensation, and since Marshall controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay.”).
Retaliation Against Perceived Protected Activity In Fogleman v. Mercy Hospital, Inc., 283 F.3d 561, 562 (3d Cir. 2002), an ADA case, the court declared that the retaliation provision in Title VII protected an employee against retaliation for “perceived” protected activity. “Because the statutes forbid an employer's taking adverse action against an employee for discriminatory reasons, it does not matter whether the factual basis for the employer's discriminatory animus was correct and that, so long as the employer's specific intent was discriminatory, the retaliation is actionable.” 283 F.3d at 562. For the fairly unusual case in which the employer is alleged to have retaliated for perceived rather than actual protected activity, the instruction can be modified consistently with the court’s directive in Fogleman. Determinative Effect Instruction 5.1.7 requires the plaintiff to show that the plaintiff’s protected activity had a “determinative effect” on the allegedly retaliatory activity. This is the standard typically used in Title VII pretext cases outside the context of retaliation. See Comment 5.1.2. Title VII claims that do not involve retaliation can alternatively proceed on a mixed-motive theory under 42 U.S.C. § 2000e-2(m), subject to the affirmative defense stated in 42 U.S.C. § 2000e-5(g)(2)(B), see Comment 5.1.1, but the mixed-motive proof framework is unavailable for Title VII retaliation claims. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”); id. at 2534 (rejecting contention that the Price Waterhouse mixed-motive test could be used for Title VII retaliation claims).