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

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.