Appellate Waiver and Decisionmaker-Knowledge Requirement in Title VII/§ 1981 Retaliation Claims

Introduction

In Leslie Anthony v. United Airlines, Incorporated, the Fourth Circuit (unpublished, per curiam) affirmed summary judgment for United Airlines on all claims, with the appeal limited to retaliation under Title VII and 42 U.S.C. § 1981. The plaintiff, a probationary flight attendant, was terminated under United’s progressive discipline “Matrix” after accruing three attendance-related “strikes” (two sick-day strikes and a third strike based on being marked “Unable to Contact” while on reserve).

The key appellate issue was whether the plaintiff could establish a prima facie retaliation case—particularly: (1) whether she engaged in protected activity (complaints to HR/EAP), and (2) whether there was a causal connection between any protected activity and her termination—specifically whether the decisionmaker had knowledge of the alleged protected activity.

Summary of the Opinion

The Fourth Circuit affirmed on the ground that the plaintiff failed to establish a prima facie retaliation claim because she did not develop an argument—with record citations—showing that the decisionmaker (the supervisor who terminated her) had actual knowledge of her alleged protected activity. Relying on Fed. R. App. P. 28(a)(8)(A) and Fourth Circuit waiver doctrine, the court held the causation argument was waived, which “completely forecloses” the retaliation claims. The court also rejected the argument that summary judgment violates the Seventh Amendment.

Analysis

Precedents Cited

al-Suyid v. Hifter and Sigley v. ND Fairmont LLC: cited for the standard of review and Rule 56 summary judgment principles (de novo review; summary judgment appropriate absent a genuine dispute of material fact).
Canaan Christian Church v. Montgomery Cnty. (quoting CoreTel Va., LLC v. Verizon Va., LLC): reinforces that the nonmovant must produce more than “a scintilla of evidence” and cannot rely on conclusory allegations or speculation.
McDonnell Douglas Corp. v. Green and Wannamaker-Amos v. Purem Novi, Inc.: establish and summarize the three-step burden-shifting framework for retaliation claims proven by circumstantial evidence (prima facie case; employer’s legitimate reason; plaintiff’s pretext showing).
Foster v. Univ. of Maryland-Eastern Shore: supplies the elements of a prima facie retaliation claim: protected activity, adverse action, and causal connection.
McIver v. Bridgestone Americas, Inc.: central to the court’s causation analysis; it states the Fourth Circuit has “consistently required proof of a decisionmaker’s knowledge of protected activity” to support a Title VII retaliation claim, and clarifies that “knowledge” includes understanding the employee complained because she reasonably believed a Title VII violation occurred.
United States v. Miller and Edwards v. City of Goldsboro: provide the appellate waiver rule for inadequate briefing—failure to include record citations and developed argument as required by Fed. R. App. P. 28(a)(8)(A) can constitute abandonment/waiver of the claim on appeal.
Carr v. Deeds (citing Celotex Corp. v. Catrett): supports the legitimacy of summary judgment as a mechanism to dispose of factually unsupported claims.
Parklane Hosiery Co., Inc. v. Shore (citing Galloway v. United States and Fidelity & Deposit Co. v. United States), plus Barber v. Kimbrell's, Inc.: establish that summary judgment and similar procedural devices do not violate the Seventh Amendment where no genuine fact dispute exists.

Legal Reasoning

Framework selection (circumstantial evidence): Because the plaintiff had no direct evidence of retaliation, the court applied McDonnell Douglas Corp. v. Green.
Prima facie case focus—causation and decisionmaker knowledge: The court assumed arguendo that protected activity might have occurred (complaints to HR/EAP), but held the plaintiff failed on the causation element because she did not show the decisionmaker (concededly her supervisor) knew about the protected activity. Under McIver v. Bridgestone Americas, Inc., decisionmaker knowledge is not optional; it is a consistent Fourth Circuit requirement for causation in retaliation cases.
Appellate waiver as the decisive mechanism: The court did not merely find the evidentiary showing insufficient; it held the plaintiff’s causation theory was waived because her brief asserted knowledge without citing supporting record evidence, violating Fed. R. App. P. 28(a)(8)(A). Applying United States v. Miller and Edwards v. City of Goldsboro, the court treated the absence of record citations and developed argument as abandonment on appeal—“completely foreclos[ing]” the case and eliminating any need to address pretext.
Seventh Amendment argument rejected: The court reiterated that summary judgment does not usurp the jury where no genuine fact dispute exists, relying on Carr v. Deeds, Celotex Corp. v. Catrett, and Parklane Hosiery Co., Inc. v. Shore, among others.

Impact

Although the opinion is unpublished and “not binding precedent,” it is instructive in two practical respects:

Retaliation litigation (district court level): The decision underscores the Fourth Circuit’s insistence—via McIver v. Bridgestone Americas, Inc.—that causation generally requires proof the decisionmaker knew of the protected activity (and understood it as discrimination-related). Practitioners should develop admissible evidence tying the complaint to the terminating official (e.g., emails, reports, HR logs, witness testimony, or admissions).
Appellate practice (briefing discipline): The opinion highlights that even potentially viable theories can be lost through inadequate briefing. When the appellant fails to provide record citations and a developed argument on a necessary element (here, decisionmaker knowledge/causation), the Fourth Circuit may treat the point as waived under Fed. R. App. P. 28(a)(8)(A), as reinforced by United States v. Miller and Edwards v. City of Goldsboro.

Complex Concepts Simplified

Protected activity: Conduct the law protects from retaliation—commonly reporting or opposing discrimination, or participating in an investigation. A complaint must generally communicate that the concern is discrimination-based (not merely “unfair treatment” untethered to a protected characteristic).
Decisionmaker knowledge: A causation requirement in many retaliation cases: the person who decided to fire/discipline must know the employee complained of discrimination. Without such knowledge, the firing cannot logically be “because of” the complaint.
McDonnell Douglas burden shifting: A method for evaluating circumstantial evidence: (1) employee shows a basic prima facie case; (2) employer articulates a legitimate reason; (3) employee proves that reason is pretext masking retaliation.
Appellate waiver/abandonment: On appeal, courts generally will not construct arguments for a party. If a brief states a conclusion but fails to provide record support and developed reasoning as required by Fed. R. App. P. 28(a)(8)(A), the argument may be treated as waived.
Summary judgment and the Seventh Amendment: The Seventh Amendment protects the right to a jury trial on genuine fact disputes. Summary judgment does not violate that right because it applies only when there is no genuine dispute of material fact requiring a jury.

Conclusion

Anthony v. United Airlines reinforces two linked principles: (1) retaliation causation in the Fourth Circuit requires proof that the decisionmaker knew of the protected activity (per McIver v. Bridgestone Americas, Inc.), and (2) on appeal, a party who asserts such knowledge without record-cited support risks waiver under Fed. R. App. P. 28(a)(8)(A), as applied through United States v. Miller and Edwards v. City of Goldsboro. The case also reiterates settled law that summary judgment, properly applied, is consistent with the Seventh Amendment.