The Law Office of Richard Vaznaugh

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The Law Office of Richard Vaznaugh
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Third Circuit: Standard of Review for Retaliation at Summary Judgment Stage is “Likely Reason,” not “But For”

The Supreme Court ruled in 2013 that a Plaintiff in a retaliation case must show that the adverse employment action would not have ocurred if they had not participated in the protected activity, this is known as the “but for” test. In a recent case the Third Circuit Federal Court of Appeals, Carvalho-Grevious v. Delaware State University, No. 15-3521 (March 21, 2017), held that in the summary judgment stage of a retaliation case, the “but for” standard does not apply, but rather a Plaintiff will only have to show that the protected activity was the “likely reason” for the adverse action. This could impact the number of cases filed, and the number that make it past summary judgment in the Third Circuit. 

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