                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-1073


IRIS FOSTER,

                Plaintiff - Appellant,

           v.

UNIVERSITY OF MARYLAND-EASTERN SHORE,

                Defendant - Appellee.

------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      Paul W. Grimm, Magistrate Judge;
Timothy J. Sullivan, Magistrate Judge. (1:10-cv-01933-TJS)


Argued:   January 27, 2015                 Decided:   May 21, 2015


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Keenan
and Judge Wynn joined.


ARGUED: Leizer Z. Goldsmith, THE GOLDSMITH LAW FIRM, LLC,
Washington, D.C., for Appellant.  Carl N. Zacarias, OFFICE OF
THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee.   ON BRIEF:  Douglas F. Gansler, Attorney General of
Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee.    Richard R. Renner, KALIJARVI, CHUZI,
NEWMAN & FITCH, P.C., Washington, D.C.; Denise M. Clark, CLARK
LAW GROUP, PLLC, Washington, D.C.; Ellen K. Renaud, SWICK &
SHAPIRO, Washington, D.C., for Amicus Curiae.




                               2
FLOYD, Circuit Judge:

      This    appeal     concerns       the       effect   of   the   Supreme      Court’s

decision in University of Texas Southwestern Medical Center v.

Nassar, 133 S. Ct. 2517 (2013), on what Title VII retaliation

plaintiffs must show to survive a motion for summary judgment.

In   Nassar,      the     Court    held       that     a    successful       retaliation

plaintiff must prove that retaliatory animus was a but-for cause

of the challenged adverse employment action, eliminating mixed-

motive liability under the “lessened” motivating factor test.

However, the Nassar Court was silent as to the application of

but-for causation in McDonnell Douglas pretext cases.                              Because

we   conclude     that    Nassar    did       not   alter    the     McDonnell     Douglas

analysis for retaliation claims, we reverse in part the district

court’s grant of summary judgment.



                                              I.

      On    March   12,    2007,    Plaintiff-Appellant               Iris   Foster    was

hired by Defendant-Appellee the University of Maryland-Eastern

Shore      (the   University)      as     a       campus    police    officer. 1       Her


      1
       In reviewing de novo the district court’s order granting
summary judgment to the University, we “view the facts and all
justifiable inferences arising therefrom in the light most
favorable to” Foster, as the nonmoving party. Libertarian Party
of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013).          The
following statement of facts conforms to this standard.



                                              3
appointment    was    subject    to   a   standard    six-month      probationary

period, during which she was essentially an at-will employee.

The campus police department was supervised by Lawrence Wright.

Rudolph Jones, one of Foster’s new coworkers, supervised the

campus security guards and reported directly to Wright.                    Foster

and Jones worked in the same building.

       According to Foster’s uncontradicted evidence, Jones began

sexually harassing Foster before she even started work: He spied

on her while she was being fitted for her new uniform in a state

of partial undress.           The harassment continued during Foster’s

first month on the job.           Among other things, Jones stared at

her,   made   lewd    or   suggestive     comments    about   her,    kissed   and

pinched her on the cheek, and pressed his groin against her

buttocks while laying his arm across her breasts.

       A month after the harassment began, Foster notified her

superiors about Jones’s inappropriate sexual conduct.                     First,

she spoke to Wright, who tried to resolve the matter informally

by meeting with Foster and Jones that same day.                      Foster then

told the University’s Director of Human Resources, Marie Billie,

that Jones had sexually harassed her, and later sent Billie a

written complaint detailing Jones’s harassment.

       Billie investigated Foster’s allegations and concluded that

Jones had acted inappropriately.              She therefore recommended to

the    University’s    Vice     President     for    Administrative     Affairs,

                                          4
Ronnie Holden, that he discipline Jones.                     Among other things,

Billie recommended that Holden transfer Jones away from his role

as supervisor of campus security guards, require him to take

sexual    harassment   training,     and      require     him     to   sign    a   “Last

Chance    Agreement”      putting   him       on    notice      that   he     would   be

immediately terminated upon any further violation of University

policy.    Holden immediately adopted Billie’s recommendations and

punished Jones accordingly. 2

      According to Foster, however, she was also punished by the

University     for   complaining    about      Jones.        A   few   weeks       before

Foster’s probationary period was to end, Wright extended her

probation by an additional six months.                   Although the department

regularly extended the probation of all new hires pursuant to

University policy, Foster claims that her probation was extended

in retaliation for her complaints.                  Foster further claims that

the   University     retaliated     against        her   over    the   next     several

months    by   changing    her   schedule      without       notice,    denying       her

tuition remission, denying her light duty following an injury,

and barring her from attending a training session while she was

on injury leave.       During this time, Foster complained repeatedly




      2
       Foster does not allege that Jones engaged in any further
sexual harassment after he was disciplined.



                                          5
to     Wright     and     Billie    about       the    perceived      incidents     of

retaliation.

       Less than a month after Foster’s last complaint, Wright

recommended Foster for termination. 3                 Billie and Holden reviewed

Wright’s recommendation and ultimately agreed that Foster should

be fired.       Holden notified Foster of her termination on October

29, 2007, in a letter that did not explain the reasons for

Foster’s termination.

       During the course of this litigation, Billie and Holden

have provided several justifications for firing Foster.                           They

observed that Foster had used almost all of her personal and

sick leave for the year in relatively short time; that she was

inflexible when asked to come in early or stay past the end of

her scheduled shift; and that she was not a team player.                          They

also       allegedly    observed    that   Foster      had   been    disciplined    by

Wright for moving a table into a police holding cell without

permission—purportedly             threatening        officer       safety—and     for

revising certain interoffice forms. 4

       3
       Because Foster was still on probation, she was technically
“rejected on probation.”     J.A. 124, 1049.    For the sake of
clarity, we refer to this rejection as a termination.
       4
         Foster and one of her coworkers testified that Foster
edited the forms at Wright’s request and that Wright praised the
work. Wright issued a written reprimand to Foster regarding the
forms on June 4, 2014—two months after Foster edited the forms,
and one day before Billie disciplined Jones.


                                            6
      In her deposition, Billie candidly offered an additional

reason for terminating Foster: “everything that ever happened

[Foster] attributed to the sexual harassment complaint,” and she

“couldn’t move on” or “get past [the harassment].”                          J.A. 323–24.

Billie    believed       that     Foster    was    fixated       on     her    harassment

experience       and   became     preoccupied      with    it.        She     agreed   that

Foster    was    an    “unacceptable       fit”    for    the    position       of    police

officer     because       she     complained       too    often       about     perceived

retaliation.       J.A. 323.

      Foster       appealed       her     termination,          first       through      the

University       System     of    Maryland       Grievance      Procedure       and    then

before the state Office of Administrative Hearings.                            A Maryland

Administrative Law Judge rejected her appeal.                      Foster then filed

a   complaint     with      the   Equal    Employment      Opportunity         Commission

(EEOC),     which      found      insufficient       evidence         to    support      her

complaint and issued a right-to-sue letter.                      Foster subsequently

initiated       this   suit.      Her     complaint      alleges      three     causes    of

action under Title VII of the Civil Rights Act of 1964, 42

U.S.C.    § 2000e      et    seq.:      discriminatory       termination        based     on

gender, retaliatory termination, and the creation of a hostile

work environment.

      The district court granted the University summary judgment

on the discriminatory termination and hostile work environment

claims, but denied summary judgment on the retaliation claim.

                                             7
After working through the McDonnell Douglas framework, it held

that (1) “a reasonable jury could find that [the] instances in

which Defendant made it more difficult for Plaintiff to work and

attend    training”   demonstrated       retaliatory     animus    that   was

“causally related” to her termination, J.A. 1070, and (2) “a

reasonable jury could conclude that the proffered reasons for

termination were pretextual,” J.A. 1075 (internal quotations and

brackets omitted).

     The University filed a motion for reconsideration in light

of the Supreme Court’s intervening decision in University of

Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517

(2013), which clarified the causation standard for Title VII

retaliation claims.    The district court 5 granted the University’s

motion for reconsideration and motion for summary judgment, this

time determining that summary judgment was warranted on Foster’s

retaliation claim under the causation standard articulated in

Nassar.     The   court   concluded      that,   under    the     new   Nassar

standard, Foster could no longer satisfy the elements of a prima


     5
       The University’s summary judgment motion was first decided
by Magistrate Judge Paul Grimm, to whom the case had been
referred for all proceedings and the entry of judgment in
accordance with 28 U.S.C. § 636(c) and with the parties’
consent.      Before  the   University  filed   its  motion   for
reconsideration, Magistrate Judge Grimm was confirmed as a
United States District Judge, and the case was reassigned to
Magistrate Judge Timothy Sullivan.



                                     8
facie    case:   “While      the   evidence        may      have   been    sufficient      to

allow a reasonable jury to find a ‘causal link’ between her

complaint    and   her      termination,          it   is    wholly      insufficient      to

allow a reasonable jury to find that her protected activity was

the   determinative         reason   for      her      termination        under    Nassar.”

J.A. 1166.

      Foster timely appealed the grant of summary judgment as to

all three claims.           We have jurisdiction over final judgments of

the district court pursuant to 28 U.S.C. § 1291.



                                           II.

      We review a grant of summary judgment de novo.                               Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.

1996).      “Summary      judgment       is   appropriate          when    ‘there     is   no

genuine    dispute     as    to    any   material           fact   and    the     movant   is

entitled to judgment as a matter of law.’”                         Bostic v. Schaefer,

760 F.3d 352, 370 (4th Cir. 2014) (quoting Fed. R. Civ. P.

56(a)).     “A dispute is genuine if a reasonable jury could return

a verdict for the nonmoving party.”                      Libertarian Party of Va.,

718 F.3d at 313 (internal quotation marks omitted).                             “A fact is

material if it ‘might affect the outcome of the suit under the

governing law.’”         Id. (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).               “We are required to view the facts

and all justifiable inferences arising therefrom in the light

                                              9
most favorable to the nonmoving party . . . .”                              Id. at 312.       In

doing      so,    we     must    not     weigh       evidence    or     make      credibility

determinations.              Mercantile Peninsula Bank v. French, 499 F.3d

345, 352 (4th Cir. 2007).                    “[C]ourts may not resolve genuine

disputes         of    fact     in   favor       of    the    party      seeking         summary

judgment.”            Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per

curiam).



                                               III.

      To    determine         whether    Foster’s          retaliation       claim      survives

the     University’s           summary     judgment          motion,        we   must     first

determine how Nassar affects a Title VII retaliation plaintiff’s

burden at the summary judgment stage.                           We conclude that the

McDonnell Douglas framework, which already incorporates a but-

for causation analysis, provides the appropriate standard for

reviewing Foster’s claim.



                                                A.

      Title            VII      prohibits             an      employer           from       both

(i) discriminating against an employee on the basis of sex, and

(ii) retaliating against an employee for complaining about prior

discrimination           or   retaliation.            42    U.S.C.     §§    2000e-2(a)(1),

2000e-3(a).             Plaintiffs       may     prove       these     violations         either

through direct and indirect evidence of retaliatory animus, or

                                                10
through the burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973).                      Price v. Thompson, 380 F.3d 209,

212   (4th     Cir.       2004).        We     have     also      referred       to    these     two

“avenues       of      proof”    as    the     “mixed-motive”             framework       and    the

“pretext”       framework,           respectively.           Hill     v.     Lockheed      Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284–85 (4th Cir. 2004) (en

banc).    It      is    left     to    the     plaintiff’s          discretion         whether    to

proceed    by       direct      and    indirect         evidence      or    by     mean    of    the

McDonnell         Douglas        burden-shifting           framework.                 Diamond     v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 n.4 (4th

Cir. 2005) (“In the event that a plaintiff has direct evidence

of    discrimination           or     simply       prefers     to    proceed       without       the

benefit      of     the      burden-shifting            framework,         she    is    under     no

obligation to make out a prima facie case.”).

       Historically,            we    have     considered         Title      VII      retaliation

claims under the same standard as discrimination claims.                                        See,

e.g., Price,           380   F.3d      at    212    (analyzing        a    retaliation      claim

under the pretext framework); Kubicko v. Ogden Logistics Servs.,

181 F.3d 544, 546 (4th Cir. 1999) (analyzing a retaliation claim

under    the      mixed-motive         framework).           In     light    of    the    Supreme

Court’s recent decision in Nassar, however, that no longer holds

true.     Previously, a retaliation plaintiff only needed to show

that his or her “employer was motivated to take the adverse

employment action by both permissible and forbidden reasons.”

                                                   11
Hill, 354 F.3d at 284 (citing 42 U.S.C. § 2000e-2(m)).                          So long

as retaliatory animus was a motivating factor of the adverse

employment      action,       the    employee       could     recover—even       if    the

employer would have taken the same adverse employment action in

the absence of such animus.             Id.

      In     Nassar,     however,      the    Supreme        Court    held     that    the

lessened causation standard of § 2000e-2(m) does not apply to

retaliation claims.           133 S. Ct. at 2533.             Unlike discrimination

plaintiffs, retaliation plaintiffs are limited to “traditional

principles of but-for causation” and must be able to prove that

“the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.”                           Id.

      Clearly,       Nassar         significantly          altered     the     causation

standard     for   claims     based     on    direct       evidence    of    retaliatory

animus by rejecting the “mixed motive” theory of liability for

retaliation claims. 6         Cf. Harris v. Powhatan Cnty. Sch. Bd., 543

F. App’x 343, 346 (4th Cir. 2013) (noting that the Supreme Court

in   Gross    v.   FBL    Fin.      Serv.    Inc.,    557     U.S.    167    (2009),    an

analogous     case     upon    which    the       Nassar    court     relied    heavily,




      6
       Retaliation plaintiffs may still proceed by direct and
indirect evidence, but in our experience it is the rare case in
which an employer admits not just to possessing an impermissible
motive, but also to acting upon it.



                                             12
eliminated mixed-motive liability under the ADEA). 7                 However,

Foster does not claim to proceed by direct evidence. 8                Rather,

she proceeds under the pretext framework, which Nassar does not

purport to address.        We must therefore decide what effect, if

any, Nassar has on a retaliation plaintiff’s burden under the

McDonnell Douglas framework.



                                     B.

       The   McDonnell   Douglas   framework   is   a   three-step    burden-

shifting framework used by Title VII plaintiffs who lack direct

evidence of retaliatory discrimination.             Diamond, 416 F.3d at

318.       To prevail under the McDonnell Douglas framework, Foster

must first establish a prima facie case by showing: (i) “that

[she] engaged in protected activity,” (ii) “that [her employer]

took adverse action against [her],” and (iii) “that a causal

relationship     existed   between   the   protected    activity     and   the

adverse employment activity.”          Price, 380 F.3d at 212.             The

       7
      Because Nassar is functionally an extension of Gross, see
133 S. Ct. at 2523, our cases applying Gross prove instructive
here.
       8
        Foster’s opening brief limits its discussion of direct
evidence to an isolated footnote, Appellant’s Br. at 54 n.41,
and we therefore conclude that she has waived this argument on
appeal.   See Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d
599, 607 (4th Cir. 2009) (finding that an argument raised only
in a footnote in appellant’s opening brief was waived on
appeal).



                                     13
burden    then       shifts        to        the    University          to        show    that     its

purportedly      retaliatory            action          was    in    fact    the     result       of    a

legitimate non-retaliatory reason.                            Hill, 354 F.3d at 285.                   If

the employer makes this showing, the burden shifts back to the

plaintiff to rebut the employer’s evidence by demonstrating that

the employer’s purported nonretaliatory reasons “were not its

true    reasons,       but   were        a    pretext          for   discrimination.”              Id.

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000)); see also Merritt v. Old Dominion Freight Line,

Inc.,    601    F.3d    289,       295       (4th       Cir.    2010).        In     this    way,       a

plaintiff      is    able      to       prove       causation         even        without     direct

evidence of retaliatory animus: If a plaintiff can show that she

was fired under suspicious circumstances and that her employer

lied about its reasons for firing her, the factfinder may infer

that    the    employer’s          undisclosed            retaliatory         animus        was    the

actual cause of her termination.                         Reeves, 530 U.S. at 148 (“[A]

plaintiff’s prima facie case, combined with sufficient evidence

to find that the employer’s asserted justification is false, may

permit    the       trier     of    fact           to     conclude        that      the     employer

unlawfully discriminated.”).

       Thus,    Foster       must       establish             causation      at    two    different

stages of the McDonnell Douglas framework: first, in making a

prima facie case, and second, in proving pretext and satisfying



                                                   14
her       ultimate   burden    of   persuasion.       We   consider   the

applicability of Nassar to each causation requirement in turn.



                                     1.

      Nassar involved a post-judgment motion for judgment as a

matter of law in a mixed-motive case, and therefore did not

address the elements of a prima facie case of retaliation under

the pretext framework.        133 S. Ct. at 2524. 9   Our sister circuits

disagree as to whether Nassar has any bearing on the causation

prong of the prima facie case. 10         For the reasons that follow, we

conclude that it does not. 11


      9
       See also Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d
448, 454 (5th Cir. 2012) (“It goes without saying that, when a
race-discrimination claim has been fully tried, as has this one,
this court need not parse the evidence into discrete segments
corresponding to a prima facie case, an articulation of a
legitimate,   nondiscriminatory   reason  for   the   employer's
decision, and a showing of pretext.” (quoting DeCorte v. Jordan,
497 F.3d 433, 437–38 (5th Cir. 2007))), rev’d, 133 S. Ct. 2517
(2013).
      10
        The law in our sister circuits is muddled. Some courts
require evidence of but-for causation in order to establish a
prima facie case. See EEOC v. Ford Motor Co., No. 12–2484, 2015
WL 1600305 at *14 (6th Cir. Apr. 10, 2015); Ward v. Jewell, 772
F.3d 1199, 1203 (10th Cir. 2014); Beard v. AAA of Mich., 593 F.
App’x 447, 451 (6th Cir. 2014); Smith v. City of Fort Pierce,
Fla., 565 F. App’x 774, 778–79 (11th Cir. 2014) (per curiam).
Other courts have held, either expressly or implicitly, that
Nassar did not alter the elements of a prima facie case.    See
Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507
(6th Cir. 2014); Butterworth v. Lab. Corp. of Am. Holdings, 581
F. App’x 813, 817 (11th Cir. 2014) (per curiam); Hague v. Univ.
of Tex. Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 336
(Continued)
                                     15
       As     an     initial       matter,    the       causation      standards        for

establishing a prima facie retaliation case and proving pretext

are    not     identical.           Rather,       the    burden   for     establishing

causation at the prima facie stage is “less onerous.”                           Williams

v.    Cerberonics,         Inc.,    871   F.2d     452,    457    (4th    Cir.    1989).

Adopting the contrary rule (and applying the ultimate causation

standard      at     the   prima    facie     stage)      would   be     tantamount     to

eliminating the McDonnell Douglas framework in retaliation cases

by restricting the use of pretext evidence to those plaintiffs

who do not need it:            If plaintiffs can prove but-for causation

at    the    prima    facie    stage,     they    will    necessarily      be    able   to




(5th Cir. 2014); Feist v. La. Dep’t of Justice, Office of the
Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013); Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).

       11
        In a recent published opinion, a panel of this Court
stated the causation prong of the prima facie case as: “(3) that
the protected activity was a ‘but-for’ cause of [Plaintiff’s]
termination and not simply a ‘motivating factor.’”     Walker v.
Mod-U-Kraf Homes, LLC, 775 F.3d 202, 210 (4th Cir. 2014) (citing
Hill, 354 F.3d at 285).      The Walker court assumed that the
plaintiff had established a prima facie case, and therefore did
not apply its proposed test. The court also gave no indication
that its proposed change to the prima facie case resulted from a
construction of Nassar. Language in a published opinion that is
“unrelated to the ratio decidendi of [the] case” is properly
regarded as dictum rather than binding precedent. United States
v. Shepperson, 739 F.3d 176, 180 n.2 (4th Cir. 2014).    For the
reasons that follow, we are unpersuaded that the Walker dictum
reflects the best reading of Nassar and decline to adopt its
restatement of the prima facie case.



                                             16
satisfy their ultimate burden of persuasion without proceeding

through the pretext analysis.          Conversely, plaintiffs who cannot

satisfy their ultimate burden of persuasion without the support

of   pretext   evidence     would    never   be   permitted    past   the    prima

facie stage to reach the pretext stage. 12             Had the Nassar Court

intended to retire McDonnell Douglas and set aside 40 years of

precedent,     it   would   have    spoken   plainly   and    clearly   to   that

effect.      Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563

(2007) (stating that the Conley pleading standard “has earned

its retirement” and “is best forgotten”).              But it did not do so.

We therefore hold that Nassar does not alter the causation prong

of a prima facie case of retaliation. 13

      12
        The district court on reconsideration acknowledged that
retaliation plaintiffs proceeding under McDonnell Douglas will
need “to rely on [pretext] as evidence to show causation.” J.A.
1167–68.    Nevertheless, the court held that it would not
“determine whether the explanation [the University] previously
provided for terminating Ms. Foster [was] pretextual” because
Foster had failed to establish the causation prong of the prima
facie case (without the use of pretext evidence).        Id. We
decline to impose such a Catch-22 on retaliation plaintiffs.
      13
        This finding accords with our prior unpublished opinions
concluding that the but-for causation standard for ADEA claims
articulated by the Supreme Court in Gross does not apply at the
prima facie stage. See, e.g., Arthur v. Pet Dairy, 593 F. App’x
211, 217 n.4 (4th Cir. 2015) (per curiam) (noting that an a
plaintiff   who   makes  out   a  prima  facie   case  of   ADEA
discrimination must still prove “that his age was the but-for
cause of his termination”); Harris, 543 F. App’x at 346–47;
Billingslea v. Astrue, 502 F. App’x 300, 302 (4th Cir. 2012)
(per curiam); Tuttle v. McHugh, 457 F. App’x 234, 237 (4th Cir.
2011) (per curiam).


                                       17
                                           2.

     We next consider whether Nassar alters the pretext stage of

the McDonnell Douglas framework.                Because the pretext framework

already requires plaintiffs to prove that retaliation was the

actual reason for the challenged employment action, we conclude

that it does not.

     A     plaintiff   who        establishes      a   prima       facie   case    of

retaliation bears the “ultimate burden of persuading the court

that [she] has been the victim of intentional [retaliation].”

Hill, 354 F.3d at 285 (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)); see also Merritt, 601 F.3d

at 294–95 (identifying the “ultimate question” in any Title VII

case under either framework as “discrimination vel non” (quoting

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714

(1983))).      In   order    to    carry    this   burden,     a    plaintiff     must

establish “both that the [employer’s] reason was false and that

[retaliation] was the real reason for the challenged conduct.”

Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir.

1995) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993)).

     Nassar’s but-for causation standard is not the “heightened

causation standard” described by the district court, J.A. 1166–

67, and does not demand anything beyond what is already required



                                           18
by the McDonnell Douglas “real reason” standard. 14                        A plaintiff

who   can   show   that    retaliation        “was   the        real   reason    for    the

[adverse employment action],” Holland v. Wash. Homes, Inc., 487

F.3d 208, 218 (4th Cir. 2007), will necessarily be able “to show

that the harm would not have occurred in the absence of—that is,

but for—the defendant’s conduct,” Nassar, 133 S. Ct. at 2525

(internal    quotation      marks    and      citation      omitted).           In   other

words, the statements “the real reason for Foster’s termination

was her employer’s retaliation” and “Foster would not have been

terminated    but    for     her    employer’s        retaliatory          animus”      are

functionally equivalent.

      We    conclude,       therefore,        that        the     McDonnell      Douglas

framework    has    long   demanded    proof     at       the    pretext    stage      that

retaliation    was     a    but-for    cause         of    a     challenged      adverse

employment action.         Nassar does not alter the legal standard for

adjudicating a McDonnell Douglas retaliation claim. 15


      14
        In the early days of McDonnell Douglas and before the
advent of the mixed-motive framework, we stated clearly that the
pretext stage requires proof of but-for causation.       Ross v.
Commc’ns Satellite Corp., 759 F.2d 355, 365–66 (4th Cir. 1985)
(“For the employee to disprove a legitimate nondiscriminatory
explanation for adverse action, the third stage of the Burdine
analysis, we determine that he must show that the adverse action
would not have occurred ‘but for’ the protected conduct.”),
abrogated by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
      15
       The Fifth Circuit has reached the same conclusion. See,
e.g., Feist, 730 F.3d at 454 (“‘After the employer states its
reason, the burden shifts back to the employee to demonstrate
(Continued)
                                         19
                                       C.

     Having clarified the proper legal standard for assessing a

Title VII retaliation claim in light of Nassar, we turn to the

University’s motion for summary judgment.           In its initial, well-

reasoned decision, the district court concluded that Foster’s

evidence    was    “sufficient    to    generate   a     jury   question    on

pretext.”   J.A. 1075.      We agree.

     We first consider whether Foster established a prima facie

case of retaliation.        To establish a prima facie case, Foster

must show “that [s]he engaged in protected activity, that [the

University] took adverse action against [her], and that a causal

relationship      existed   between    the   protected   activity   and    the

adverse employment activity.”          Price, 380 F.3d at 212.      Only the

causation prong is disputed on appeal.




that   the  employer’s   reason   is  actually   a  pretext  for
retaliation,’ which the employee accomplishes by showing that
the adverse action would not have occurred ‘but for’ the
employer’s retaliatory motive . . . .” (internal citations
omitted) (citing Nassar, 133 S. Ct. at 2533)); Hague, 560 F.
App’x at 336 (“An employee establishes pretext by showing that
the adverse action would not have occurred ‘but for’ the
employer’s retaliatory reason for the action.”) (citing Nassar,
133 S. Ct. at 2533–34); see also Scrivener v. Socorro Ind. Sch.
Dist., 169 F.3d 969, 972 (5th Cir. 1999) (“To carry her ultimate
Title VII burden, an employee must also show that her employer
would not have taken the adverse employment action ‘but for’ the
employee’s participation in the protected activity.”).



                                       20
       Foster     argues      that    she   can     show   causation       by     means   of

(i) Billie’s statement of retaliatory animus; (ii) the temporal

proximity between Foster’s final complaint of retaliation and

her termination; and (iii) the additional retaliatory acts that

preceded her firing.                Billie’s statement that Foster was fired

because “everything that ever happened she [Foster] attributed

to the sexual harassment complaint,” J.A. 323, suggests that

Billie      and   Holden      fired    Foster     because     she    complained       about

retaliation.        Foster’s evidence of temporal proximity also tends

to show causation: according to her uncontradicted testimony,

she    complained        to     Billie      about     perceived          retaliation       on

September 21, 2007, and again on September 28, 2007, just a

month before she was terminated. 16                   See King v. Rumsfeld, 328

F.3d 145, 151 & n.5 (4th Cir. 2003) (finding that a two-and-a-

half     month     gap     between     protected      activity       and     an    adverse

employment        action      was    sufficiently      narrow       to    establish       the

causation prong of the prima facie case solely on the basis of

temporal      proximity).              Taken      together,     this       evidence        is



       16
        The University               argues that, in considering temporal
proximity, we may only               look to Foster’s initial complaint of
harassment and not her                subsequent complaints of retaliation.
This is plainly contrary              to law. See, e.g., Carter v. Bell, 33
F.3d 450, 460 (4th Cir.              1994) (finding temporal proximity where
an employee was demoted               six weeks after a hearing on his EEO
complaint).



                                            21
sufficient to create a jury question regarding the causation

prong of the prima facie case. 17

      Because Foster concedes that the University has proffered

evidence    of   a    legitimate,         non-retaliatory         reason    for    her

termination, we proceed to the pretext stage of the McDonnell

Douglas inquiry.        The University claims to have fired Foster

because    she   used    too    much   leave     time,      was    inflexible      and

unwilling   to   accommodate       changes     to   her    schedule,       and    moved

furniture and edited office forms without permission.                            Foster

argues that the University’s proffered non-retaliatory reasons

are   pretextual     because:    (i) Foster’s       immediate      supervisor       and

the   department     scheduler     both    testified      that     Foster    was   not

inflexible in scheduling; (ii) Wright testified that there was

no    documentation     of     Foster’s    supposed       inflexibility      in    her

personnel   file;     (iii) Foster’s        immediate      supervisor       testified

that Foster had been given permission to edit the office forms

and that Wright had initially praised her work; (iv) Foster’s

immediate supervisor repeatedly praised her work and discussed

promoting her to corporal before she made her sexual harassment



      17
        Even if this evidence were insufficient, when considered
together with Foster’s evidence of the University’s additional
retaliatory acts—specifically, the denial of light duty and the
denial of training—it would suffice to create a jury question
regarding causation.



                                          22
complaint;         and     (v) the    University          did       not    initially     provide

Foster with a reason for her termination. 18

       From    this        evidence,       the    district          court     concluded      that

Foster “render[ed] the employer’s reason so questionable as to

raise an inference of deceit.”                         J.A. 1075 (citation omitted).

We    agree.         A     reasonable      jury        could       conclude      from   Foster’s

evidence that the University’s proffered justifications were not

its   real     reasons       for     firing       her.         A    reasonable      jury    could

further       conclude—as         required       by     Reeves       and    Nassar—that       the

University’s actual reason for firing Foster was to retaliate

against       her     for     complaining          about       Jones’s        alleged      sexual

harassment          and     for     her    subsequent              complaints      of    ongoing

retaliation.             We therefore find that summary judgment in favor

of    the   University         is    not    warranted          on    Foster’s      retaliation

claim.


                                                 IV.

       Foster also appeals the district court’s grant of summary

judgment      on     her    gender-based         discrimination            and    hostile    work

       18
        We note with some frustration that in setting out this
evidence of pretext, Foster’s counsel failed to comply with Rule
28(a)(8)(A) of the Federal Rules of Appellate Procedure, which
requires that briefs contain “citations to the . . . parts of
the record on which the appellant relies.”           Counsel is
admonished to show greater respect for both his client’s
interests and the Court’s time in his future appearances before
this Court.



                                                 23
environment claims, which were not at issue in the University’s

motion for reconsideration.           We consider each claim in turn.



                                         A.

      The district court found that Foster failed to make out a

prima    facie   case     of     gender-based     discriminatory         discharge

because she failed to show that she was replaced by a male

police officer with comparable qualifications.                    See Causey v.

Balog, 162 F.3d 795, 802 (4th Cir. 1998) (noting “comparable

qualifications”       element    of   prima    facie    case).      Although    her

replacement was male, the undisputed evidence shows that he was

better qualified for the position.              Foster concedes this point,

but argues that we should bypass our precedent and instead adopt

the   approach   of    the   Sixth    Circuit,    which    does    not    impose   a

comparable qualifications requirement.                 This argument—which she

raises for the first time on the last page of her reply brief

and is, in any event, waived—is unavailing.                      See McMellon v.

United   States,   387    F.3d    329,   332    (4th    Cir.   2004)     (en   banc)

(affirming “the basic principle that one panel cannot overrule a

decision issued by another panel”).                We therefore affirm the

district court’s grant of summary judgment on Foster’s gender-

based discrimination claim.




                                         24
                                              B.

       The district court also correctly granted summary judgment

on Foster’s hostile work environment claim.                         “In order to make

out a hostile work environment claim based on sex, ‘a plaintiff

must show that the offending conduct (1) was unwelcome, (2) was

because of her sex, (3) was sufficiently severe or pervasive to

alter the conditions of her employment and create an abusive

working environment, and (4) was imputable to her employer.’”

Hoyle v. Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011)

(citation       omitted).         The     district      court      found    that     Foster

established a genuine dispute of material fact on the first,

second, and third elements, but granted summary judgment to the

University because no reasonable jury could find that Jones’s

alleged harassment was imputable to his employer.

       Sexual    harassment        is    imputable      to    an    employer      when    the

employer “knew or should have known about the harassment and

failed to take effective action to stop it.”                         Howard v. Winter,

446    F.3d     559,    565      (4th    Cir.      2006)   (citation       and    internal

quotation marks omitted).               It is undisputed that the University

promptly investigated Foster’s complaint and, within 30 days,

transferred       Jones     to    a     position      where    he    would     no    longer

interact with Foster and required him to attend counseling and

sign   a   “Last       Chance     Agreement.”          J.A.     1059.        It     is    also

undisputed       that     Foster        was     not    sexually         harassed         after

                                              25
complaining to the University about Jones’s harassment.                                     From

these     undisputed          facts,        we    affirm        the    district          court’s

conclusion that the University took effective action to stop

Jones’s harassment of Foster, and that Jones’s actions are not

imputable to the University under this theory.                                 See EEOC v.

Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (“A remedial

action    that      effectively        stops      the       harassment     will     be    deemed

adequate as a matter of law.” (quoting Knabe v. Boury Corp., 114

F.3d 407, 411–12 n.8 (3d Cir. 1997))).

        Foster      argues    that     she       can    still       prevail    because       the

University       “should      have     known”         about    Jones’s      harassment       and

should have stopped it preemptively because a previous employee—

described in the record as Employee C—also complained that Jones

had   sexually        harassed     her.          As    we    have   previously       held,   an

“employer’s knowledge that a male worker has previously harassed

female    employees        other     than        the    plaintiff      will    often      prove

highly relevant in deciding whether the employer should have

anticipated that the plaintiff too would become a victim of the

male employee’s harassing conduct.”                          Paroline v. Unisys Corp.,

879   F.2d      100,    107   (4th     Cir.      1989),       rev’d   in     part    on    other

grounds, 900 F.2d 27, 28 (4th Cir. 1990) (per curiam) (en banc).

        Here,    as    evidence      that     the      University     was     on    notice   of

Jones’s      past      harassment      of    Employee         C,    Foster    has    produced

Employee C’s deposition, Employee C’s complaint filed with the

                                                 26
Maryland        Commission           on     Human        Relations           (MCHR),       Billie’s

testimony that there had been other sexual harassment claims

against Jones (including Employee C’s), and Holden’s testimony

that     Employee       C     had        filed     an    MCHR        complaint      against       the

University       arising          from     alleged        harassment          by    Jones.        In

response,       the    University           argues       that       this     Circuit      does    not

recognize such a theory of liability and that even if it did,

the    University       was        not    on     notice       of    Jones’s       propensity      for

engaging        in     sexual       harassment           because           both    its     internal

investigation and the MCHR investigation concluded that Employee

C’s complaint was without merit.

       Contrary        to     the        University’s              argument,       the    rule     we

articulated in Paroline remains good law in this Circuit.                                          We

take this opportunity to reaffirm its holding: employers have an

affirmative          duty    to     prevent       sexual       harassment,          and    will    be

liable     if        they     “anticipated               or     reasonably          should       have

anticipated” that a particular employee would sexually harass a

particular coworker and yet “failed to take action reasonably

calculated to prevent such harassment.”                               Paroline, 879 F.2d at

107 (emphasis added); see also Mikels v. City of Durham, 183

F.3d     323,    331        (4th     Cir.        1999)    (noting          that    in     Paroline,

liability       arose       because       “the     employer          was    already      on   notice

. . . of the harasser’s propensities”).                              The question, then, is

whether the University reasonably should have anticipated that

                                                  27
Jones     would   harass   Foster    in     light   of    Employee    C’s      prior

complaints of harassment.

     In      Paroline,   the   plaintiff      produced     evidence     that    her

employer had failed to investigate prior complaints that the man

who harassed her had engaged in unwanted touching of other women

in the office.      879 F.2d at 103.         Here, however, Foster concedes

that the University investigated Employee C’s allegations and

found them to lack credibility.             Moreover, according to Holden’s

uncontradicted     testimony,    the   MHCR    also      investigated    Employee

C’s allegations and similarly returned a finding of “no probable

cause.” 19    J.A. 563–64.     We conclude as a matter of law that, for

purposes of the Paroline failure-to-warn theory, an employer may

reasonably rely upon the findings of a state civil rights agency

in determining whether an employee poses a risk of creating a

hostile work environment.           To hold otherwise would effectively


     19
        The MCHR decision was not included in the record below,
and we therefore cannot rule out the possibility that Holden’s
testimony mischaracterizes its contents.    But because Foster
failed to present any evidence that would controvert Holden’s
testimony, we are compelled by Rule 56 to accept the
University’s evidence as true.   See 10A Charles Alan Wright &
Arthur R. Miller, et al., Federal Practice & Procedure § 2727
(3d ed. 1998) (“If the movant presents credible evidence that,
if not controverted at trial, would entitle him to a Rule 50
judgment as a matter of law that evidence must be accepted as
true on a summary-judgment motion when the party opposing the
motion does not offer counter-affidavits or other evidentiary
material supporting the opposing contention that an issue of
fact remains . . . .”).



                                       28
require   employers     to    discipline    or   terminate    all    employees

accused   of   harassment,     regardless   of   whether     the    accusations

against them are supported by evidence.          This we decline to do.

      Viewing the evidence in the light most favorable to Foster,

she has failed to create a jury question regarding whether the

University reasonably should have anticipated that she would be

the   victim   of   Jones’s   sexual   harassment.     The     harassment   is

therefore not imputable to the University, and so we affirm the

district court’s grant of summary judgment on Foster’s hostile

work environment claim.



                                       V.

      For the foregoing reasons, we reverse in part the district

court’s order granting summary judgment to the University and

remand to the district court for further proceedings consistent

with this opinion.

                                                           AFFIRMED IN PART,
                                                           REVERSED IN PART,
                                                                AND REMANDED




                                       29
