Defendants provide no authority in support of the new requirement they seek to impose- almost a decade after Nassar was decided no less-nor how the Court should approach analyzing any evidence offered in support or opposition to the counterfactual hypothetical situation in which Defendant Schierbaum never learned about Plaintiff's complaints about discrimination. As the Eleventh Circuit has noted as late as 2013, Nassar “did not clarify the role of ‘but for' causation in a plaintiff's prima facie case,” Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 833 n. 2 (11th Cir. 2013), and this Court will not change the role set forth in decades of case law absent some authority on how to do so.
Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1219-20 (11th Cir. 2021) (citing Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1137 n.15 (11th Cir. 2020)). Instead, close temporal proximity merely helps “establish pretext when coupled with other evidence ....” Gogel, 967 F.3d at 1137 n.15. So while it is usually the case that only “very close” temporal proximity of less than two months can establish causation, see Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 (11th Cir. 2013) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)), it is also the case that when there is other evidence in support of pretext, a delay between the allegedly protected activity and the adverse activity is not fatal” to considering the evidence of temporal proximity as probative to the pretext analysis, Ramirez, 546 Fed.Appx. at 832 (citing Thomas, 506 F.3d at 1364 and Wascura v. City of S. Miami, 257 F.3d 1238, 1248 (11th Cir. 2001)).
Plaintiff contends that but-for causation as required in Nassar does not apply to his case because that Supreme Court decision concerned the level of proof required to "prove" retaliation at trial (on a jury verdict) and not "the burden of persuasion necessary to defeat summary judgment." Doc. 53 at 15 (citing Nassar , 133 S.Ct. at 2524–25, 2534 and Ramirez v. Bausch & Lomb, Inc. , 546 Fed.Appx. 829, 833 (11th Cir. 2013) ). Defendant responds that Plaintiff must show that retaliation was the but-for cause of the hostile work environment in order to withstand a motion for summary judgment.
Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir.2007) (citations and quotations omitted) (emphasis added). “[W]here a plaintiff can establish a causal connection through ‘other evidence tending to show causation,’ a delay between the allegedly protected activity and the adverse activity is not fatal.” Ramirez v. Bausch & Lomb, Inc. , 546 Fed.Appx. 829, 832 (11th Cir.2013) (quoting Thomas , 506 F.3d at 1364 ). Furthermore, “temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision[-] maker did not have knowledge that the employee engaged in protected conduct.” Brungart , 231 F.3d at 799.
That standard requires “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 833 (11th Cir. 2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).
Where the allegedly protected activity and the adverse employment action are not “very close,” a plaintiff can nevertheless establish a causal connection through “other evidence tending to show causation.” Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 (11th Cir. 2013). After the prima facie case is established, it creates a “presumption that the adverse action was the product of an intent to retaliate.
If the defendant meets its burden, the plaintiff must ultimately prove by a preponderance of the evidence that the defendant's explanation is a pretext for unlawful discrimination. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001); Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 (11th Cir. 2013) (per curiam).
If a defendant meets its burden, the plaintiff then must prove by a preponderance of the evidence that the defendant's stated explanation is pretext for unlawful discrimination. See, e.g., Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001); Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 (11th Cir. 2013) (per curiam).
As AMIC notes in its reply brief, both the Eleventh Circuit and the Supreme Court have consistently held that, for a plaintiff to rely solely on temporal proximity between an employer's knowledge of protected activity and an adverse employment action as evidence of causality, the temporal proximity must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); see also Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 (11th Cir. 2013). A three-to-four-month disparity between the statutorily protected expression and the adverse employment action is generally insufficient.
” Ramirez v. Bausch & Lomb, Inc., 546 Fed.Appx. 829, 832 n.1 (11th Cir. 2013). Like Relator's retaliation claim discussed above, his allegations under the FWA fail to demonstrate that he put his employer on notice that its conduct constituted fraud on the government or that there is a causal connection between his protected activity and his termination.