The Equal Employment Opportunity Commission (the EEOC or the Commission) is charged with the interpretation, enforcement, and administration of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Title VII, like other federal employment discrimination statutes, contains an antiretaliation provision. See 42 U.S.C. § 2000e-3(a). Here, plaintiff Brad Knox made an internal complaint of race discrimination and his employer, Roper Pump Co. (Roper), then made his continued employment contingent on a waiver of that complaint. Knox refused to sign the waiver and was fired. He sued, alleging, inter alia, that Roper retaliated against him for his discrimination complaint by conditioning his job on a waiver, and firing him for rejecting the waiver.

This appeal raises important questions regarding the interplay between an employer’s use of contractual waiver provisions and Title VII’s antiretaliation provision. Because resolution of these questions will affect the EEOC’s enforcement of Title VII and other antidiscrimination statutes, the Commission offers its views to the Court. See Fed. R. App. P. 29(a)(2).

Did the district court err in finding no triable issue of retaliation, despite evidence that Roper responded to Knox’s race discrimination complaint by making his continued employment contingent on a release of that complaint, and then by firing him for rejecting the release?

STATEMENT OF THE CASE

A. Statement of Facts

Knox worked for Roper, a manufacturer of pumps, for more than 15 years as a quality test technician. R.84-2 at 3-4; R.84-4 at 15. According to Joseph Renzetti and Bettina Ginn, the company’s president and human resources official, he “did good work.” R.78 at 27; see also R.79 at 55 (Ginn testifying “Knox was good at his job”). Aside from the events leading to his termination, discussed below, Knox received no “write-ups or reprimands” at Roper. R.8-1 at 1.

Knox’s adult daughter, Kayla Knox, worked in the same facility as her father during the relevant period. R.84-2 at 4. One day, while off duty at the home they shared, Knox and his daughter had an argument that escalated into a physical altercation. R.94-1 at 2. What exactly occurred during this altercation is unclear, but the parties agree that it was unrelated to work, and Knox acknowledges he slapped his daughter and threatened to whip her with a belt. See R.84-5 at 36-37; R.94-1 at 2-3; R.94 at 13. Later that day, Kayla Knox went to work and complained to Ginn, the HR official, that her father had battered her. R.94-1; R.94-3 at 2-3.

Roper suspended Knox “pending an investigation and decision on how to discipline” him. R.84-2 at 11. Ginn informed Knox that his suspension was for “assault[ing] a coworker,” but gave no indication about any further punishment he might face. R.94 at 22. The next day, Knox called Roper’s Ethics and Compliance Employee Hotline and opposed his suspension on two grounds. R.94-2 at 1. He first complained the suspension was unwarranted because “whatever happened in his home was his business and had nothing to do with the company.” Id. Knox, who is black, next said he was being “treated unfairly” due to a “racial issue” because “two white employees” were “involved in a[ ] physical altercation on the job and allowed to continue to work with the company but in different areas.” Id.

About a week later, while Knox was still suspended, Renzetti and Katye Semanson (Roper’s director of HR) phoned Knox and told him that “he was in serious trouble” and had three options. R.94 at 37-38. First, he could accept termination; second, he could volunteer to resign and receive severance pay on the condition that he sign a global release of claims; or, third, he could keep his job on the condition that he complete anger management counseling while on an unpaid suspension. Id. at 38-39; R.84-4 at 94. In the context of discussing option two—voluntary resignation with severance pay—Renzetti told Knox that “the only way [he] would be able to get [his severance] money,” would be to “sign a release saying you won’t come back and sue us.” R.84-4 at 43. Neither Renzetti nor Semanson said Knox would need to sign such a release if he chose option three—anger management counseling while on unpaid leave. R.94 at 39.

Knox wished to keep his job and thus agreed to undergo anger management counseling. Id. at 43. He phoned Semanson the next day to inform her of his decision and he asked “to know exactly what he was supposed to do in order to return to work.” Id. at 43-45. Semanson told Knox he would be able to return to work so long as he provided a certificate from the counseling service. Id. at 44; R.84-4 at 44. Also during this call, Knox reiterated his view that his punishment was racially discriminatory, as he claimed Roper imposed less severe punishment on white employees who had fought with co-workers. R.94 at 46.

Semanson then mailed Knox a letter, which the company styled a “Last Chance Agreement” (LCA). R.8-3. The letter informed Knox that he could “remain employed” if he attended anger management counseling. Id. at 1. It made clear that he would be suspended without pay until he provided Semanson with a certificate of completion from the counseling service and that, if he “engage[d] in any future misconduct” upon returning to work, he would be terminated. Id. at 2. The next paragraph of the LCA asked Knox to “acknowledge and agree” that his continued employment “represents valuable consideration that the Company is not obligated to provide” and that, in exchange for such “valuable consideration,” he would “release, settle and discharge the Company from any and all manner of claims, charges, [and] complaints.” Id. “Specifically included in this waiver and release,” the LCA continued, “are . . . all claims arising under Title VII of the Civil Rights Act.” Id. The LCA stated that it was not meant to release prospective claims, and it would not have barred Knox from filing an EEOC charge. Id. at 2-3.

Knox replied in writing, that, until he received the LCA, Roper had not previously informed him that his return to work would be contingent on a release of all his claims against the company. R.8-4. Knox added that he believed the release requirement was “retaliation for complaining about race discrimination.” I d. Knox then stated he had already met with an anger management counselor and would continue attending those sessions but would not sign a release. Id.

In response, Roper sent Knox a letter, stating that “off duty behavior of a violent nature” was “sufficient grounds for the Company to terminate [Knox’s] employment.” R.8-5. “In lieu of termination,” Roper’s response continued, “the Company offered you valuable consideration to retain your position provided you met certain conditions . . . , including executing a Release.” Id. The letter then restated Knox’s options: “(1) Termination; (2) Return to work after execution of the LCA and full satisfaction of all of the conditions of the LCA; or (3) Tender your resignation and receive a severance package, conditioned upon your execution of a Separation Agreement and Release of Claims.” Id. The letter also informed Knox that Roper had “investigated” his hotline complaint, and “found no evidence of discrimination.” Id. The letter then gave Knox a deadline to choose one of the three options: “If you do not respond, or if you do not accept option 2 or 3, your employment will be terminated effective October 19, 2015.” Id.

Knox’s then-attorney, Janet Hill, phoned Roper’s in-house counsel, Melanie Nealis, to reiterate Knox’s view that it was “inappropriate” and “retaliat[ory]” “for Roper to condition [Knox’s return to work] on signing a release of claims.” R .55-1 at 1. Nealis confirmed that when Roper first informed Knox about the option of keeping his job “by successfully completing an anger management program, he was not told that releasing any potential claims would be an additional condition.” Id. Nealis added “that the release became an issue because [Knox] made a claim of discrimination,” and the company “would be foolish to offer him his job back and then have to defend a baseless lawsuit.” R.84-12 at 12.

Knox did not agree to the release provision of the LCA. Instead, he said he was “unwilling to sign away [his] rights under Federal law,” R .84-4 at 104, and he was thus fired on October 19, 2015, R.94 at 54. The reason Roper gave for the termination was Knox’s “violation of [its] Workplace Violence Policy.” Id. However, Semanson testified that “[i]f [Knox] had signed the last-chance agreement, he would have remained an employee,” notwithstanding that violation. R.77 at 69. Despite having been told he was fired, Knox completed the anger management counseling at his own expense. R.94-6 at 3-4. He then filed suit, alleging retaliation and race discrimination under Title VII and 42 U.S.C. § 1981. R.1 at 11-15.

During discovery, Roper represented that “Renzetti was the decision-maker and the architect of the three disciplinary options.” R.84-2 at 17. It further asserted that Renzetti’s decision to include the release provision in the LCA “‘had nothing to do with’ [Knox’s] hotline complaint” of race discrimination, and that “Renzetti intended all along that [Knox] would be required to agree to a complete release of claims if he wanted to keep his job.” Id. at 18. However, discovery also revealed that other employees who returned to work under similar circumstances were not required to sign releases. For instance, the two white employees Knox identified as comparators for his race discrimination claim returned to work after engaging in workplace violence but did not have to “sign a release of claims in order to return to work.” R.94 at 56; see also R.104 at 19; R.77 at 54-55; R.79 at 107-09. Also, as HR official Ginn testified, Roper subjected two employees who violated its policy against substance abuse to LCAs that conditioned their employment on the sole requirement that they “seek help with a substance abuse program.” R.79 at 31-33. These employees did not complain of discrimination, Ginn acknowledged, and none had to sign releases as a condition of returning to work. Id. at 107-09, 124-25.

Both parties filed motions for summary judgment. R.84; R.92. Roper’s motion sought judgment as a matter of law on all of Knox’s claims, and Knox sought affirmative summary judgment on his retaliation claim. These motions were referred to a magistrate judge. R.110.

B. Magistrate Report and District Court Decision

The magistrate judge recommended granting summary judgment for Roper on Knox’s race discrimination claim, denying Roper’s motion with respect to Knox’s retaliation claim, and denying Knox’s motion seeking affirmative summary judgment as to his retaliation claim. R.110 at 120-21. In addressing the retaliation claim, the magistrate recognized as undisputed that Knox’s “hotline complaint” of race discrimination qualified as “protected activity.” Id. at 62. It further found that Knox’s reiteration of that complaint to Semanson also so qualified. Id. at 66. The magistrate also observed that Roper does “not dispute that [Knox’s] termination would qualify as an adverse action under Title VII.” Id. at 68.

Next, the magistrate concluded there was a fact dispute as to whether Knox’s protected activity caused Roper to discharge him. Id. at 77. The magistrate reasoned that a jury could find that, if Knox had not complained of race discrimination, Roper would not have conditioned his employment on a release, and thus would not have fired him for refusing to sign the release. See id. at 77-82; see also id. at 79 (recognizing that the “timeline of events” here “suggests a causal link that [Knox’s] hotline complaint, and his complaint to Semanson, were related to his eventual discharge”). Specifically, the magistrate said, a jury could find “it was only after [Roper] learned of [Knox’s] complaint of discrimination that it conditioned his right to remain employed on releasing his discrimination claim, and when he refused, he was fired as an act of retaliation.” Id. at 81 (relying on Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249 (11th Cir. 2012)); see also id. at 113 (magistrate noting “the evidence suggests that only [Knox] was asked to sign a release, and when he refused, he was fired”).

On the other hand, the magistrate reasoned, a jury could deem credible Roper’s assertion that “Renzetti intended all along” that Knox would be required to agree to a release of claims if he wanted to keep his job. Id. at 113. In that event, the magistrate said, a jury could find that Knox “was not terminated as a result of his discrimination complaint at all,” but because of his violation of Roper’s policy. Id. “Because there are facts in the record to support each of those competing positions, summary judgment cannot be granted to either party,” the magistrate concluded. Id. at 114.

The district court disagreed with the magistrate judge as to Knox’s retaliation claim, concluding that summary judgment in Roper’s favor was warranted. R.119 at 2. Like the magistrate, the district court accepted as undisputed that Knox’s race discrimination complaint was protected activity and his termination was an adverse action. Id. at 12. However, the district court found it was not retaliatory for Roper to first condition Knox’s continued employment on a release, and then to fire him for refusing to sign the release. Id. at 13-14. In support of its conclusion, the district court opined, “there is no evidence in the record to contradict [Roper’s] assertion[ ]” that the company would have included a release provision in the LCA irrespective of Knox’s discrimination complaint. Id. at 10; see also id. at 17 (saying Knox “cannot rebut” Roper’s “assertion that Renzetti . . . always includes a release in sensitive situations such as this one”).

The district court recognized that when Renzetti and Semanson first presented Knox with his three options they did not mention a release as a condition of returning to work, but said that was “immaterial as to whether Renzetti contemplated there be a release” all along. Id. at 18. The court also emphasized that Knox’s altercation with his daughter “was punishable by termination” under Roper’s policies, and that “Renzetti contemplated termination from the beginning.” Id. at 17. Therefore, the district court wrote, Knox “cannot show that but for [his] discrimination complaint he would not have been terminated.” Id. at 21. “Instead, it can be said as a matter of law that [Knox] would not have been terminated but for his violation of workplace policy.” Id.

In reaching this conclusion, the district court acknowledged that in Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278-79 (11th Cir. 2008), this Court held “that where an employee complains of employment discrimination . . . and is terminated soon after refusing to sign a release of that discrimination claim, there is evidence of a causal connection between the protected activity and termination.” Id. at 15. However, the district court said the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), overruled Goldsmith. Id. The district court also rejected the magistrate’s reliance on Gate Gourmet, deeming that case distinguishable and, like Goldsmith, no longer good law after Nassar. Id. at 12-15. The court accordingly granted summary judgment in Roper’s favor and dismissed the case with prejudice. R.120.

SUMMARY OF argument

Title VII’s antiretaliation provision prohibits an employer from “discriminat[ing] against any of his employees . . . because [the employee] has opposed any practice” the employee reasonably and in good faith believes is unlawful under Title VII. 42 U.S.C. § 2000e-3(a). The critical question in this context is whether an employer treats an employee less favorably than it otherwise would have because the employee has complained of discrimination. This Court has held that an employer violates this provision if it would have offered an employee an opportunity to continue working but, because the employee complained of discrimination, makes that offer contingent on a release of the complaint and withholds the offer when the employee rejects the release. This Court has also held it is retaliatory for an employer to respond to an employee’s discrimination complaint by pressuring that employee to abandon rights associated with his complaint, and firing him when he refuses to do so.

Here, after Knox’s altercation with his daughter, Roper told him he could return to work so long as he completed anger management counseling. However, after Knox complained of race discrimination, Roper made his return to work contingent on another condition: that he waive his right to pursue a discrimination complaint. A reasonable jury could find on this record that, if Knox had not complained of discrimination, Roper would not have conditioned his employment on a release, and accordingly would not have fired him for refusing to waive his right to pursue his complaint. Therefore, under binding Circuit precedent, a triable issue exists as to whether, but for Knox’s protected activity, he would have been fired. In concluding otherwise, the district court misapplied the but-for causation standard and erred in granting summary judgment.

ARGUMENT

To withstand summary judgment on a retaliation claim, a plaintiff must proffer evidence from which a jury could conclude that: (1) he engaged in protected activity; (2) he suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action. See, e.g., Gate Gourmet, 683 F.3d at 1258. The Supreme Court has clarified that a plaintiff’s ultimate burden in retaliation cases is to show that “his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 570 U.S. at 362. Because it is undisputed that Knox engaged in protected activity by complaining of race discrimination and that he suffered an adverse action when he was discharged, the central question here is whether he established but-for causation between the two events. For the reasons below, a reasonable jury could find that he did. The district court thus erred in granting summary judgment on Knox’s retaliation claim, and this Court should reverse.

A. An employer may not respond to an employee’s discrimination complaint by conditioning his future employment on a release of claims and then firing him for refusing to sign such a release.

There is a causal connection between protected activity and a discharge where an employer responds to an employee’s discrimination complaint by conditioning his continued employment on a release of his right to pursue the complaint, and then by firing him for rejecting that release. This principle is firmly rooted in this Court’s case law. For instance, in Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999), the plaintiff filed an EEOC charge and an HR specialist for his employer “asked him whether he was going to drop his complaint with the EEOC.” The plaintiff “responded that he intended to continue pursuing the complaint, at which point [the HR specialist] said, ‘You will regret it,’ and hung up.” Id. A month or so later, the HR specialist recommended the plaintiff’s termination and the plaintiff was in fact “terminated a few days” later. Id. The employer argued that it fired the plaintiff for “accounting problems and merchandise shortages,” but this Court rejected that argument. Id. at 1305-06. It held, based on the evidence that the employer pressured the plaintiff to drop his EEOC charge and threatened him when he refused to do so, that “a jury could reasonably conclude that” the plaintiff “was fired in retaliation for filing a complaint with the EEOC.” Id.

Next, in Goldsmith, 513 F.3d at 1271, the plaintiff filed an EEOC charge alleging race discrimination. Thereafter, his employer presented him with an arbitration agreement that would cover past, present, and future employment-related claims. Id. The plaintiff proposed amending the agreement to exclude its application to pending claims, making clear he did not wish to waive rights related to his EEOC charge. Id. at 1272. The employer rejected this proposal and fired the plaintiff for refusing to sign the agreement. Id. This Court affirmed the jury verdict of retaliation. Id. at 1268, 1292. As the panel explained, the plaintiff’s “immediate termination for his refusal to sign the [arbitration] agreement established a causal relation between his protected activity . . . and his termination.” Id. at 1278. And, this Court added, the employer’s stated reason for the plaintiff’s discharge—“his refusal to sign the [arbitration] agreement”—was “retaliatory,” since the “agreement would have affected [the plaintiff’s] continued pursuit of his pending charge.” Id. at 1279.

Most recently, in Gate Gourmet, 683 F.3d at 1252, the plaintiff was removed from her job because of pregnancy. The plaintiff then filed an EEOC charge alleging pregnancy discrimination. Id. The record included evidence that the employer would have offered the plaintiff a light-duty job due to her pregnancy. Id. But, once the employer learned the plaintiff had filed a charge, it made that offer contingent on the plaintiff’s agreement to drop her charge; and, when the plaintiff did not agree to drop her charge, the employer never placed her in the light-duty position. Id. at 1253-54. This Court found that “[w]ithholding a position that an employee would otherwise receive” constitutes a materially adverse action. Id. at 1259. Also, this Court reasoned, a jury could find from this sequence of events that the employer “decided to unconditionally offer [the plaintiff] the light-duty . . . position and would have done so but for the fact that she filed an EEOC charge.” Id. However, “[o]nce it learned that she had” filed a charge, the employer “changed what would have been an unconditional offer into a conditional offer in which the plaintiff could have the position . . . only if she dropped the charge,” and when the plaintiff “would not drop it, [the employer] rescinded the offer.” Id. This Court held that the record therefore supported a “reasonable inference” that “the statutorily protected filing of and refusal to settle the EEOC charge caused [the employer] to deny [the plaintiff] a light-duty position,” which amounts to retaliation. Id.

In other words, Goldsmith and Wright held that an employer has retaliated where it responds to an employee’s discrimination complaint by pressuring the employee to release his rights and firing him when he refuses to do so. 513 F.3d at 1277-79; 187 F.3d at 1305-06. Similarly, Gate Gourmet clarified that, so long as continued employment is a benefit an employee would otherwise receive, her employer has retaliated if it responds to her discrimination complaint by making that benefit contingent on a release, and withholding the benefit if she rejects the release. 683 F.3d at 1260. These decisions establish that, under 42 U.S.C. § 2000e-3(a), an employer may not respond to an employee’s discrimination complaint by making his future employment contingent on a release.

This principle is consistent with the “primary purpose” of the antiretaliation provision: ensuring that employees retain “unfettered access to Title VII’s remedial mechanisms.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). The antiretaliation provision achieves this purpose by “prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to’” inter alia “the courts.” Burlington N., 548 U.S. at 68 (citation omitted). Indeed, if employers could respond to an employee’s discrimination complaint by making his future employment contingent on a release of claims, they would be able to effectively eliminate complaining employees’ access to one of Title VII’s key “remedial mechanisms”—judicial relief. See id. at 64. And, such a rule would improperly encourage employer actions aimed at “deter[ring] victims of discrimination from complaining to . . . the courts.” Id. at 68.

B. A jury could find that, but for Knox’s protected activity, Roper would not have conditioned his employment on a release, and thus would not have fired him for rejecting the release.

Knox’s retaliation claim hinges on whether Roper included the release in his LCA because he complained of discrimination. If a jury so found, it could conclude that, absent Knox’s discrimination complaint, he would have been permitted to return to work once he completed anger management counseling. And, in that event, a jury would have to find that Roper withheld from Knox a benefit it otherwise would have conferred—continued employment—because of his protected activity. In contrast, if a jury found, as Roper contends, that Knox’s LCA would have contained a release irrespective of his discrimination complaint, then the jury could conclude that Knox’s return to work would have been contingent on a release of claims in any event, and thus that there was no causal connection between Knox’s complaint and his discharge. As the magistrate judge found, “[b]ecause there are facts in the record to support each of those competing positions, summary judgment cannot be granted to either party.” R.110 at 114.

The district court found “no evidence” that Roper included the release in the LCA “for retaliatory reasons.” R.119 at 23. It said Knox “offers nothing to dispute Renzetti’s motive for including the release”—Knox’s altercation with his daughter. Id. at 21. But the court overlooked Nealis’ admission that the “release became an issue because [Knox] made a claim of discrimination.” R.84-12 at 12. The court also largely ignored the abundant additional evidence supporting the inference that Renzetti would not have made Knox’s employment contingent on a release if he had not complained of race discrimination. For instance, when Renzetti and Semanson first discussed Knox’s three options they did not mention a release as a condition of Knox’s return to work. R.94 at 39. In contrast, Renzetti explicitly stated that Knox would have to sign a release if he opted for resignation with severance pay, saying “the only way [Knox] would be able to get [his severance] money,” would be to “sign a release saying you won’t come back and sue us.” R.84-4 at 43. Even after Knox asked Semanson “exactly what he was supposed to do in order to return to work,” she did not mention the release; she only mentioned obtaining a certificate from the anger management service while on unpaid leave. R.94 at 43-45. The district court deemed these undisputed facts “immaterial,” R.119 at 18, but a jury could readily find that if Renzetti in fact “intended all along” to impose a release with respect to the anger management option, he and Semanson would have said so when first presenting Knox with it. In finding otherwise, the district court improperly failed to view the facts and draw reasonable inferences in Knox’s favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (“On summary judgment the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.”) (alterations and citation omitted).

Further, a jury could disbelieve Roper’s assertion that Renzetti “always requires a release in sensitive situations,” R.84-2 at 18, because Roper could not identify anyone other than Knox who had to sign a release as a condition of returning to work. In fact, as the magistrate observed, “the evidence suggests that only [Knox] was required to sign a release.” R.110 at 113. Ginn admitted, for example, that Roper placed two other individuals who violated the company’s substance abuse policy on LCAs and required them to attend counseling, but not to sign releases. R.79 at 31-33. The record also supports the conclusion that Roper did not require the two white employees who engaged in workplace violence to sign releases as a condition of rehire. See R.94 at 56; R.104 at 19; R.77 at 54-55; R.79 at 107-09. What distinguishes Knox from these workers is that he complained of discrimination, whereas they did not. Thus, the district court was incorrect to find “no evidence that the release was included for retaliatory reasons.” R.119 at 23. Rather, a reasonable jury could find that, after Knox’s altercation with his daughter, Roper would have let him return to work on the sole condition that he complete anger management while on unpaid leave. But, because of Knox’s discrimination complaint, Roper added another condition: that he sign a release, which it would not have insisted on had he not complained.

Nor would a jury have trouble finding that Roper fired Knox because he refused to sign the release. Indeed, the company admitted that the “only provision of the last chance agreement to which . . . Knox objected was the obligation to release claims.” R.106 at 15. Moreover, Semanson testified that “[if] [Knox] had signed the last-chance agreement,” including the release, “he would have remained an employee.” R.77 at 69. That is, Roper acknowledges, but for the release, Knox would have signed the LCA and would have kept his job. A permissible inference a jury could reach from this evidence is that, but for Knox’s statutorily protected complaint Roper would not have conditioned his continued employment on a release, and thus would not have fired him for refusing to sign the release. In other words, a jury could find that Roper treated Knox less favorably than it would have otherwise because he engaged in protected activity, which amounts to retaliation. See Gate Gourmet, 683 F.3d at 1260 n.8 (emphasizing that the employer “withh[e]ld from” the plaintiff “a benefit she undisputedly would otherwise have received . . . , and it allegedly did that solely because of her EEOC charge”); cf. EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 426-30 (7th Cir. 1992) (holding it is retaliatory for an employer to withhold a benefit it otherwise would confer on an employee because he engaged in protected activity).

The district court reasoned that, because Roper’s policies authorized it to fire Knox for his altercation with his daughter, its decision to do so after he complained of race discrimination could not be retaliatory. See, e.g., R.119 at 17 (emphasizing that Knox’s violation was “punishable by termination”). But, whether Roper could have fired Knox for a legitimate reason is not the question. The question is whether Roper would have fired him had he not engaged in protected activity. See Nassar, 570 U.S. at 346-47. And here, jury could find that, if Knox had not complained of race discrimination, Roper would have made his return to work contingent only on completion of anger management counseling—a condition which he satisfied. In short, a jury could find that Roper would have let Knox keep his job if he had not engaged in protected activity. The magistrate was thus correct to deem summary judgment improper on Knox’s retaliation claim.

C. The district court misapplied the but-for causation standard.

In granting Roper’s motion for summary judgment, the district court stated that Knox’s “violation of company policy was the but-for cause of his termination, not his protected activity.” R.110 at 19. Put differently, the court found that, since Knox would not have been subjected to a release and would not have been fired had he not engaged in an altercation with his daughter, he cannot prove that his protected activity was also a but-for cause of his discharge. See id. at 21 (“[I]t can be said as a matter of law that [Knox] would not have been terminated but for his violation of workplace policy.”). The district court misunderstood but-for causation.

To establish but-for causation between protected conduct and an adverse action, a plaintiff need not prove that his employer undertook the adverse action solely because of his protected activity. See Burrage v. United States, 571 U.S. 204, 210-15 (2014) (analyzing but-for causation and making clear that something is a but-for cause if it “combines with other factors to produce the result”); see also Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 n.5 (2d Cir. 2013) (“[A] plaintiff’s injury can have multiple ‘but-for’ causes, each one of which may be sufficient to support liability.”). Instead, a plaintiff establishes that protected activity is a but-for cause if it is “the straw that broke the camel’s back,” Burrage, 571 U.S. at 211, that is, a determinative factor in the employer’s decision, or “a factor that made a difference in the outcome,” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1334 (11th Cir. 1999) (citation omitted). Here, a jury could find that Knox’s complaint of race discrimination was a determinative factor in Roper’s decision to incorporate a release provision into Knox’s LCA; and, in turn, a jury could find that Knox’s refusal to sign that provision was a determinative factor in his discharge. Therefore, even assuming Knox’s altercation with his daughter was also a factor in the release requirement and his termination, that is wholly compatible with a finding of retaliation.

The district court repeatedly emphasized that Renzetti “contemplated [Knox’s] termination from the day he found out about” Knox’s violation of workplace policy. See R.119 at 18; see also id. at 9-10, 17, 19, 21. But the court’s focus on this point is misplaced. Regardless of whether Renzetti contemplated firing Knox for violating workplace policy, there is ample evidence that Roper in fact would not have carried out the termination based on the violation alone, and that Knox’s discrimination complaint and his refusal to waive the complaint combined with the violation to cause the firing. As Semanson acknowledged, if Knox “had signed the last-chance agreement” with the release provision included, “he would have remained an employee.” R.77 at 69. And, because there can be more than one but-for cause of a plaintiff’s injury, see Kwan, 737 F.3d at 846 n.5, a reasonable jury could enter a verdict in Knox’s favor on his retaliation claim even if it believed he would not have been fired but for his violation of Roper’s policy against violence.

The district court also held that Goldsmith and Gate Gourmet are no longer good law in that they applied a causation standard less stringent than the but-for standard the Supreme Court articulated in Nassar. R.119 at 14-15. However, it is not true that Goldsmith and Gate Gourmet would have come out differently if decided today. It is plain from those decisions that this Court found sufficient evidence to conclude in each case that, but for the plaintiffs’ discrimination charges, and their refusals to waive rights associated with those charges, they would not have been fired. See Gate Gourmet, 683 F.3d at 1260 (reversing summary judgment because a jury could find that the employer “decided to unconditionally offer [the plaintiff] the light-duty . . . position and would have done so but for the fact that she filed an EEOC charge”) (emphasis added); Goldsmith, 513 F.3d at 1278-79 (affirming jury’s retaliation verdict because there was evidence from which it could find that, absent the plaintiff’s charge, the employer would not have insisted on arbitrating that charge, and would not have fired the plaintiff for not signing an arbitration agreement).

The district court’s belief that Nassar overruled Goldsmith and Gate Gourmet stems from its failure to distinguish between what a retaliation plaintiff must do to create an inference of causation in the McDonnell Douglas prima facie case, and what a plaintiff must establish to ultimately prevail. In many cases involving circumstantial evidence, plaintiffs’ retaliation claims are analyzed through the framework first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In such cases, plaintiffs must establish an inference of causation between protected activity and an adverse action in the prima facie case stage of the analysis, and then must establish but-for causation between the two events in satisfying their ultimate burden of persuasion. See, e.g., Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015) (observing that a retaliation plaintiff “must establish causation at two different stages of the McDonnell Douglas framework”).

This Court has long held that a prima facie inference of causation requires just that “the protected activity and the adverse action [a]re not wholly unrelated.” E.g., Simmons v. Camden Cty. Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985); see also Goldsmith, 513 F.3d at 1277-78 (collecting cases). The district court deemed this language obsolete after Nassar, but that is incorrect. Although Nassar held that a retaliation plaintiff’s ultimate burden is to show but-for causation, Nassar did not affect what a plaintiff must do at the prima facie stage of the McDonnell Douglas framework. See Foster, 787 F.3d at 251 (“Nassar does not alter the causation prong of a prima facie case.”). Also, it makes sense that the causation burden is lighter at the prima facie stage than it is to ultimately prevail because the effect of a McDonnell Douglas prima facie case is merely to shift the burden to the employer to articulate a non-retaliatory reason for the adverse action. If the employer does so, the burden shifts back to the plaintiff to show that, absent his protected activity, there would have been no adverse action. See id. at 251 (recognizing that requiring a plaintiff to prove but-for causation at the prima facie stage “would be tantamount to eliminating the McDonnell Douglas framework . . . by restricting the use of pretext evidence to those plaintiffs who do not need it”). Thus, this Court should clarify that Goldsmith and Gate Gourmet remain good law after Nassar.

To be clear, the EEOC is not asserting that Roper could not discipline Knox for a workplace policy violation. The Commission does contend, however, that Roper was prohibited from punishing Knox more harshly than it otherwise would have because of his protected activity. Cf. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010) (where employer had legitimate non-retaliatory reasons for firing plaintiff before her complaints, and “remained free to act on those reasons afterward,” the “one thing [the employer] could not lawfully do is fire her earlier than it otherwise would have because she complained about discrimination”). By the same token, the law may not prevent Roper from responding to Knox’s policy violation by making his return to work contingent on both completion of anger management counseling and a global release. But the antiretaliation provision does bar Roper from adding the release condition in response to Knox’s protected activity. See Gate Gourmet, 683 F.3d at 1260 (reversing summary judgment because, after learning of the plaintiff’s EEOC charge, the employer “changed what would have been an unconditional offer” of continued employment “into a conditional offer in which” the plaintiff could stay employed “only if she dropped the charge”). Because a jury could find that, absent Knox’s discrimination complaint, Roper would have let him return to work upon completion of anger management but, because he complained, it conditioned his return on a waiver and fired him for rejecting the waiver, summary judgment was not warranted here.

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment on Knox’s retaliation claim, and remand the case for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

s/Philip M. Kovnat

ANNE W. KING

PHILIP M. KOVNAT

Attorneys

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 6,485 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and 11th Cir. R. 32-4.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Palatino Linotype 14 point.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: August 24, 2018

CERTIFICATE OF SERVICE

I, Philip M. Kovnat, hereby certify I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 24th day of August, 2018. I also certify all counsel of record have consented to electronic service, and will be served the foregoing brief via the appellate CM/ECF system.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: August 24, 2018

[1] The EEOC takes no position on any other issue in this appeal.