Retaliation Case Study: DEA's Failure to Hire Can Constitute Illegal Retaliation in Barbour v. Garland (4th Cir.)
The Fourth Circuit has reinstated a female applicant's lawsuit alleging the U.S. Drug Enforcement Agency (DEA) failed to hire her in retaliation for her involvement in a class-action lawsuit against the FBI for widespread gender-based sexual harassment and discrimination.
In overturning the trial court below, the Fourth Circuit re-enforces permissible pleading requirements that employees alleging illegal retaliation must simply allege a plausible case to proceed to discovery, and do not need to meet the McDonnell Douglas burden-shifting framework for after discovery. Barbour v. Garland, Slip Op No. 22-1815 (4th Cir., June 24, 2024). The Fourth Circuit's precedent applies to Maryland.
I. The Facts
In sum, Ms. Barbour had applied to work at the DEA as a special agent in 2019. She did exceptionally well on testing as part of this in depth process. In October 2019, she was informed that her application was ready for review by the federal agency's hiring panel. However, things went awry.
First, the application went into limbo. Ms. Barbour was told her background check must be reopened. HR stopped communicating with her.
A background investigator who spoke with Ms. Barbour's sister for this reopened background check quizzed the sister about the pending FBI lawsuit and Ms. Barbour's romantic and sexual activities. Ms. Barbour found out in December 2019 that her employment application had been denied through a DEA applicant hotline, after the fact. Only after her query, Ms. Barbour was provided four reasons for not hiring her by the DEA that are alleged to be false. Barbour v. Garland, Slip Op. pp. 1-15, supra.
II. The Trial Court Below
The trial court below dismissed the case because, it reasoned, the temporary proximity between her disclosures in early 2019 about being involved in an FBI gender discrimination lawsuit occurred months before the DEA's December 2019 refusal to hire decision. This trial court analysis does ignore the customary lengthy federal hiring process. Further as the Fourth Circuit determined, the trial also ignored the circumstance evidence around the refusal to hire indicating DEA's plausible retaliatory motive.
As a result, the Fourth Circuit overturned the decision because the trial court ignored the circumstantial evidence of the DEA's alleged false statements, summarized in part above, and also change of approach around October through December 2019, before refusing to hire her. Slip Op. 15-37.
The Fourth Circuit also noted that the trial court relied in part on summary judgment decisions (after discovery and depositions), Slip Op. at 37, rather than pleading decisions under Federal Rule 12(b)(6), applicable here, and so misapplied the more lenient standard for initial pleading requirements.
III. The Law
At the initial pleading stage, an employee alleging retaliation must allege a plausible claim. Slip. Op. at 17 (citing Laurent-Workman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022)).
A claim of retaliation requires that "the plaintiff must show: '(1) engagement in a protected activity; (2) [an] adverse employment action; and (3) a causal link between the protected activity and the employment action.' Slip Op. at 18 (quoting Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010))
This initial pleading does not require allegations sufficient to survive summary judgment and the McDonnell Douglas burden-shifting test. Slip Op. at 18-19. A technical prima facie case at summary judgment need to be plead at the outset, but just a plausible "short and plain statement of the claim showing that the pleader is entitled to relief." Slip Op. at 19.
The trial court here failed to construe inferences in Ms. Barbour's favor as required, and applied the more strenuous summary judgment standard inappropriately. Slip Op. at 18-37.
IV. Conclusion
The Fourth Circuit in Barbour v. Garland has reinstated a female applicant's lawsuit alleging the U.S. Drug Enforcement Agency (DEA) failed to hire her in retaliation for her involvement in a class-action lawsuit against the FBI for widespread gender-based sexual harassment and discrimination, and clarified the initial pleading standard in a manner helpful to job applicants and dedicated professionals. Slip Op No. 22-1815 (4th Cir., June 24, 2024).
Gregg H. Mosson, Esq.
Mosson Law, LLC
ABOUT: Our founder and experienced attorney, Mr. Mosson, focuses on representing employees in claims of illegal discrimination, illegal retaliation, disability rights violations, FMLA interference, wrongful terminations, and when seeking owed wages. He also serves people seeking disability benefits from Social Security. His experience and knowledge in these areas of the law are vast and helpful to the clients he represents. For more details, visit the Web site at www.mossonlaw.com. To contact us, you can click here or call 443-226-0601.