Eddie Stewart v. GES Recycling South Carolina LLC

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1523

EDDIE STEWART,

Plaintiff – Appellant,

v.

GES RECYCLING SOUTH CAROLINA LLC,

Defendant – Appellee.

Appeal from the United States District Court for the District of South Carolina, at

Spartanburg. Jacquelyn Denise Austin, District Judge. (7:21-cv-01782-JDA)

Argued: January 31, 2025 Decided: August 13, 2026

Before KING, WYNN, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the majority opinion, in

which Judge Wynn joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Geraldine Sumter, FERGUSON, CHAMBERS & SUMTER, P.A., Charlotte,

North Carolina, for Appellant. Benjamin Paul Fryer, FORDHARRISON, LLP, Charlotte,

North Carolina, for Appellee. ON BRIEF: Chandler Bryant, FERGUSON, CHAMBERS

& SUMTER, P.A., Charlotte, North Carolina, for Appellant. Brianna L. Schill,

FORDHARRISON, LLP, Spartanburg, South Carolina, for Appellee

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KING, Circuit Judge:

In this employment discrimination action on appeal from the District of South

Carolina, plaintiff Eddie Stewart contests the district court’s Opinion and Order of May 7,

2024, insofar as the court awarded summary judgment to defendant GES Recycling South

Carolina LLC (“GES”) on Stewart’s claim of retaliatory discharge under 42 U.S.C. § 1981.

See Stewart v. GES Recycling S.C. LLC, No. 7:21-cv-01782 (D.S.C. May 7, 2024), ECF

No. 70 (the “Summary Judgment Opinion”). As explained herein, we vacate the award of

summary judgment to GES on Stewart’s retaliatory discharge claim and remand for further

proceedings.

I.

Plaintiff Stewart filed the original Complaint in this action on June 14, 2021,

asserting three 42 U.S.C. § 1981 claims against GES, for (1) a racially hostile work

environment, (2) race discrimination in training and promotion opportunities, and

(3) retaliatory discharge for complaining about the discriminatory treatment. The same

§ 1981 claims are alleged in Stewart’s operative Amended Complaint of June 15, 2021.

Following discovery, GES moved for summary judgment as to all three claims.

A.

The summary judgment record reflects that GES is one of three subsidiaries in the

United States of GESCRAP Group, a Spanish multinational corporation engaged in the

recycling of industrial metal waste, or “metal scrap.” Plaintiff Stewart, who is African

American, was employed as a driver for about four months — from February to June 2017

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— at the GES plant in Union County, South Carolina. Stewart’s job involved collecting

metal scrap from other sites and hauling it to the GES plant. His work was directed by

manager Adam Gordon, as well as by fellow driver Justin Yarbrough (sometimes spelled

“Yarborough” in the record), who acted as a foreman. Both Gordon and Yarbrough are

white. Also in management at the GES plant were Ander Garcia and the direct supervisor

of Gordon and Garcia, Rodolfo Baroja.

1.

According to plaintiff Stewart, the GES plant was a workplace where profane

language was commonly used by and between workers and management, without objection

from either side. But Stewart has protested that the GES plant was also a hostile work

environment, where he was subjected to racial harassment that included the unwelcome

and repeated use of the exceedingly offensive slur “n*****.” 1

Stewart has recounted multiple instances of racial harassment, mostly perpetrated

by or otherwise related to Yarbrough, as detailed below.

● While working on a paid holiday (indicated to be Good Friday, April

14, 2017), Stewart and an African American coworker got in the bed

of a pickup truck being driven by Yarbrough, prompting Yarbrough

to say, “Man, one of you all come and get in the front, I don’t want to

1

We have sanitized the racial epithet repeatedly encountered by Stewart at the GES

plant by replacing that abhorrent term with “n*****.” In so doing, we do not mean to

diminish the impact of that slur. See Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222,

225 n.1 (4th Cir. 2022).

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be looking like the n***** slave driver.” See J.A. 79; see also id. at

160-61, 193. 2

● That same day, Yarbrough told Stewart that a white crane operator

had referred to Stewart and other African American drivers as “stupid

n*****s.” See J.A. 75, 160, 193. Stewart responded by asking

Yarbrough both why the white crane operator had not been fired for

his comment and why Yarbrough was “even telling [Stewart] what

[the white crane operator] said.” Id. at 77. Although Yarbrough then

noted that it was not him, but the white crane operator, who had made

the “stupid n*****s” comment, Stewart emphasized that Yarbrough

was “the only person I see in my face saying it” and that Yarbrough

“better get out of my face with it.” Id. at 78.

● Yarbrough was part of a Facebook group that posted racist cartoons,

which Yarbrough repeatedly showed to Stewart and other employees

while they were on breaks. One such cartoon, depicting a field full of

white horses with one black horse in the middle, was captioned,

“Everywhere you go there’s a n*****.” See J.A. 100. Another,

depicting a long-legged chicken dressed in a basketball jersey and

headband, said something along the lines of, “I’d like to see a n*****

catch this chicken.” Id. at 100, 163, 193; see also id. at 332 (copy of

cartoon with similar caption, “Bet KFC won’t catch this n***a”). Not

wanting to see the racist cartoons, Stewart learned to walk away when

Yarbrough was approaching to show them.

● Yarbrough also regularly brought his son (estimated by Stewart to be

age 11 or 12) to the GES plant, where on at least three occasions the

boy addressed employees gathered in the breakroom, including

Stewart, as “sand n*****s.” See J.A. 79-88. The boy’s use of racial

slurs caused both African American and white employees to discuss

amongst themselves that the boy was “racist” and that Yarbrough was

“[r]aising [his son] to be just like him.” Id. at 88. Indeed, Yarbrough

would encourage his son’s use of racial slurs, “laugh[ing] as if it[’]s

funny.” Id. at 162.

2

Stewart’s version of events is drawn from a written statement he made in June

2017 to GES, see J.A. 193-94; his subsequent intake questionnaire with the U.S. Equal

Employment Opportunity Commission, id. at 153-64; and excerpts of his deposition

testimony in these proceedings, id. at 66-152, 274-329, 352-59. (Citations herein to “J.A.

__” refer to the contents of the Joint Appendix filed by the parties in this appeal.)

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● In early June 2017, while both Stewart and Yarbrough were working

a night shift, Yarbrough flagged Stewart down as if there were

something of importance. But Yarbrough then pointed to an oil spot

on his arm and said to Stewart: “Look at that. What is that?” See

J.A. 77. When Stewart answered that it was “oil,” Yarbrough replied

that it was instead “a black spot like you” or “your black ass.” Id. at

77, 91, 162.

Prior to June 13, 2017, Stewart did not make any complaints of racial harassment to

Gordon or any other managers at GES. As Stewart has explained, management was already

well aware that such harassment was occurring — as use of the term “n*****” and other

harassing acts often occurred in the presence of the plant’s higher ups — with no effort

made to punish or otherwise stop it. For example, Yarbrough told Stewart that the white

crane operator’s “stupid n*****s” comment was heard by Baroja, who took no disciplinary

action against the white crane operator. See J.A. 160-61. Stewart himself witnessed

Yarbrough freely perpetrating harassment with the knowledge and even in the presence of

Gordon.

Furthermore, Stewart feared that if he complained, he would be subject to

retaliation. That fear arose from a warning Gordon had given Stewart on the day Stewart

was hired by GES not to associate with two particular African American employees

“because they complain about discrimination” and “always talk about the company

disc[r]iminates against blacks.” See J.A. 160, 298. Thereafter, Yarbrough advised Stewart

that the complaining African American employees would not “be there much longer

because they would figure out a way to fire them.” Id. at 160. And Stewart perceived that

Gordon was otherwise “targeting” those men for their complaints, in that, for example, one

of them lost a promotion to the less-senior Yarbrough, even though the promotion was

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supposed to be based on seniority. Id. at 298-300. Meanwhile, Stewart believed that

Gordon was already denying him opportunities, based on his race, to train as a crane

operator and thereby qualify for a higher pay rate. As Stewart thus saw it, he “couldn’t

complain” to Gordon or “to the people in the office” about racial harassment or other

discriminatory treatment. Id. at 298. That is, Stewart “felt like if I had a complaint to them

about what was happening they be trying to figure out a way to get rid of me too.” Id. at

357.

According to Stewart, however, he was driven to complain of discrimination on

June 13, 2017, after Gordon himself perpetrated racial harassment at the GES plant.

Stewart’s account of that workday, which quickly ended in his suspension, includes the

following details.

● The racial harassment perpetrated by Gordon on June 13, 2017,

involved Gordon observing and then imitating two African American

employees coming off the day shift who each had greeted Stewart

with a fist “pound” as he stood against a wall playing a game on his

cell phone while waiting to start his night shift. See J.A. 98. In his

imitation, Gordon poked out his bottom lip as if he were “one of the

black guys with big bottom lips” and approached Stewart with his fist

up “to give [Stewart] the pound.” Id. at 98-99. Stewart refused to

participate in a fist pound with Gordon. Instead, Stewart “looked at

[Gordon’s] face,” “looked at his hand,” and then “looked back at my

game.” Id. at 98.

● Stewart shortly thereafter came across Gordon in the breakroom,

where, in the presence of at least one other GES employee, they had

words about Stewart’s lack of training as a crane operator. Gordon

asked Stewart, “Have you been trained to operate . . . the crane?” See

J.A. 133. Stewart responded, “Have you trained me to operate the

crane[,] motherfucker?” Id. Gordon acknowledged he had not but

challenged Stewart with, “Why you never come in here on your days

off and operate the crane?” Id. To that Stewart replied, “Because

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every time I come in on my days off to operate the crane [I instead

end up] running my normal job,” which “ain’t what I want.” Id.

● During the same exchange in the breakroom, Stewart alluded to the

racial harassment he had encountered at the GES plant — including

the harassment just perpetrated by Gordon himself — telling Gordon

that “I don’t like being around all you motherfuckers like that ’cause

they childish.” See J.A. 133.

● Obviously angered by Stewart’s comments, Gordon left the

breakroom but soon called Stewart on his cell phone and told him to

come to Gordon’s office. Once Stewart did as instructed, Gordon

slammed the office door and ordered Stewart to “[s]it down.” See J.A.

134. Stewart retorted, “I don’t feel like sitting down today,

motherfucker.” Id. Gordon then prodded Stewart to “tell me what the

problem is,” asking: “What’s going on? What’s wrong?” Id. Stewart

suggested that Gordon knew exactly what the problem was — saying,

“Man, why you playing me like that?” — but went on to say he was

“tired of this bullshit place” and to make express complaints of

discriminatory treatment. Id. at 134, 193.

● In his complaints to Gordon on June 13, 2017, Stewart brought up

Gordon’s earlier warning to avoid the two African American

employees who complained of discrimination. Stewart told Gordon

that it had become apparent to Stewart that those employees were

“right” to complain, as Gordon “did the same thing to [Stewart].” See

J.A. 135. Stewart specifically suggested that his lack of training as a

crane operator was racially discriminatory and that Gordon would

“not let a black man move up in this company.” Id. at 156-57.

Additionally, Stewart protested that “you all got all those people

running around here and calling people ‘stupid n*****s’ and stuff,

never ain’t nothing been done about that.” Id. at 136. Stewart also

expressly complained of Yarbrough’s “n***** slave driver”

comment and racist “chicken” cartoon. Id. at 157, 193.

● Stewart closed his discrimination complaints by telling Gordon “it’s

real fucked up how the[y] run shit.” See J.A. 157. Gordon responded

to Stewart’s complaints by asking if Stewart was “going to quit.” Id.

at 136. After Stewart answered, “No,” Gordon directed Stewart to

“go ahead and clock out then” and informed him that he was

“suspended for the day.” Id.

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● Upon Gordon’s announcement of his suspension, Stewart noted the

unfairness of it, saying to Gordon, “You going to call me in here

knowing I was already mad and you going to play me like a kid, and

then soon as I tell you what my problem is I get suspended for it.” See

J.A. 136. With Gordon leaving the office through the door to the

outside, Stewart added, “Man you know that’s messed up.” Id. To

that, Gordon “took off running,” prompting Stewart to say, “What you

running for” and “You running ‘cause you know you did wrong, man.

You know you did wrong.” Id.

● Now outside, Stewart overheard Gordon on the phone, telling a

worker who had been scheduled to start later in the night shift to

“[c]ome on in [because Stewart has] been suspended for the day.” See

J.A. 136-37. That led Stewart to rebuke Gordon: “Damn near be

telling people my business. What my business got to do with

somebody else?” Id. at 137. Stewart also rebuked: “[H]ow you going

to suspend me and you ask me what the problem was and I told you[,]

fat mothe[r]fucker. But it[’]s ok for motherfuckers to call us stupid

n*****s. You ain’t shit[,] motherfucker.” Id. at 194.

● After rebuking Gordon, Stewart was told to be quiet by a GES

employee (identified by GES as Tiffany Robertson) who had also just

come outside. Stewart responded to Robertson, “Look, I don’t mean

no harm, but you ain’t got nothing to do with this, go the fuck on back

in there ’cause I ain’t talking to you.” See J.A. 137.

● At that point, Stewart was approached by Garcia, who asked Stewart

what was going on. Stewart explained to Garcia, “Man, that dude

[Gordon] playing me like a kid, man,” elaborating that Gordon “called

me in the office, ask me what my problem was and I tell him,” but

then “suspend[ed] me for telling [him] something that he knew I was

already mad about.” See J.A. 137. Additionally, Stewart told Garcia

that he was “tired of this shit they doing.” Id. at 194. In response,

Garcia instructed Stewart “to go ahead and leave” the GES plant,

while promising that Garcia “would talk to [Stewart] tomorrow.” Id.

In Stewart’s words, Garcia “calm[ed] me down and t[old] me he

w[ould] find out what[’]s going on [and] have me come in the next

day and talk to me about it. So I left. I was very very upset.” Id. at

157-58.

As Stewart has recounted, he followed Garcia’s instructions and returned to the GES

plant on June 14, 2017, though he had not otherwise been scheduled to work that day.

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Stewart met with both Garcia and Baroja, who had Stewart give a written statement

regarding the events of June 13, 2017. In that statement, Stewart described: his complaints

to Gordon about Stewart’s lack of training as a crane operator; the racial harassment at the

GES plant, including Yarbrough’s “n***** slave driver” comment, Yarbrough’s racist

“chicken” cartoon, and the unpunished “stupid n*****s” comment that Yarbrough had

reported to Stewart; and the retaliation threatened against and suffered by employees who

complained of discrimination. The statement also addressed Stewart’s own suspension

upon making his complaints to Gordon, as well as the impropriety of the suspension.

Stewart was open about his use of profane language, documenting in the statement that,

inter alia, he had called Gordon a “motherfucker” and a “fat motherfucker.”

At the conclusion of the June 14, 2017 meeting, Stewart was told to call the next

day before coming back for that day’s scheduled shift. When Stewart then called on June

15, 2017, he spoke with either Garcia or Baroja, who informed Stewart that he was “still

suspended” and would have “to talk to somebody from Spain” who “was flying in to talk

to [Stewart].” See J.A. 148-49. Stewart was advised that he should wait to be contacted

about a future meeting.

According to Stewart, it was not until June 21, 2017, that he was contacted and

directed to attend a meeting that same day, with Garcia and another man (identified by

GES as Human Resources Manager Oscar Azkona). During that meeting, Garcia and

Azkona “spoke [with each other] in another language,” and only Garcia spoke, in English,

directly to Stewart. See J.A. 149. Garcia told Stewart, “We understand you had some

concerns, but the way you talked to [Gordon] is something this company cannot tolerate;

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and therefore, we have to terminate you.” Id. at 151. Thereupon, Garcia asked Stewart,

“You got any questions?” Id. Stewart answered, “No,” and Garcia then provided Stewart

with his final pay and had him turn in his uniforms. Id.

2.

In a declaration made under penalty of perjury, a witness for plaintiff Stewart, his

former coworker Kenrick Denning, averred that while he was employed at the GES plant

for approximately one year, “profanity was widely used by workers and management.” See

J.A. 330. Denning further stated that “[r]acial jokes and remarks were prevalent during the

time that I worked”; that “Gordon made racial remarks himself and was present when racial

remarks and jokes were made, but never did anything to warn employees that such conduct

was not appropriate”; and that “Gordon was often present when [Yarbrough] made racist

remarks.” Id. at 331.

According to Denning, “I let it be known that I did not appreciate the racial

comments being made” and also “talked about the difference in the pay being offered to

African-Americans [including] me.” See J.A. 331. In response, Gordon warned Denning

“that if I continued talking about racism that I would be fired” and “told me that I needed

to stop talking about the raises.” Id. Ultimately, Denning “resigned my position because

of the discriminatory treatment afforded to African-Americans and because the company

did nothing to stop the racial comments and jokes.” Id. 3

3

Notably, Denning was one of the two African American employees who Stewart

was warned by Gordon to avoid “because they complain about discrimination” and “always

talk about the company disc[r]iminates against blacks.” See J.A. 160, 298.

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3.

For its part, GES proffered witnesses who disputed plaintiff Stewart’s claims of a

racially hostile work environment, race discrimination in training and promotion

opportunities, and retaliatory discharge for complaining about the discriminatory

treatment. Specifically, GES tendered two declarations of Gordon, a declaration of Garcia,

and a declaration of the white crane operator who allegedly uttered the “stupid n*****s”

comment. All those declarations were made under penalty of perjury. Additionally, GES

produced internal records, including an unsworn and undated written account by Gordon

of the events of June 13, 2017, as well as two documents concerning an internal

investigation of Yarbrough following Stewart’s termination.

In Gordon’s written account of the events of June 13, 2017, once he and Stewart

were in Gordon’s office, Gordon felt that Stewart “was attempting to intimidate me” and

created “a hostile work environment” by refusing Gordon’s direction to “sit down.” See

J.A. 206. Stewart instead “stood in front of my desk,” “began yelling and cursing,” and

complained of racial harassment perpetrated by Gordon and in Gordon’s presence, as well

as race discrimination in training and promotion opportunities. Id. When Gordon

responded to Stewart’s discrimination complaints by contesting them, Stewart “began

yelling and cursing again.” Id. Gordon then “asked [Stewart] to leave and go home” and

told Stewart that “[h]e was suspended for that shift.” Id. Gordon followed Stewart out of

the office, and, once outside, called the replacement worker for Stewart and said that

Stewart “would not be working tonight.” Id. “I[n] that moment, [Stewart] stated that he

was leaving and was fired,” and Gordon told Stewart “that he was not fired but suspended

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for the night.” Id. To that, Stewart “began yelling and cur[s]ing again, and backed

[Gordon] into the barrier wall and against a fence where I felt trapped.” Id. Gordon “was

able to remove myself from the situation, and move away from [Stewart].” Id.

At that point in Gordon’s written account, Garcia — who the written account refers

to as “our CFO” — “and our administration person[ne]l came out of their offices due to

the commotion.” See J.A. 206. Garcia “tried to speak calmly with [Stewart] as did one of

the administ[rato]rs.” Id. In response, Stewart “began yelling and cursing at those

employees” and “calling them names.” Id. Garcia then “calmly escorted [Stewart] around

the building and out to the parking lot to leave.” Id. Sometime thereafter, Gordon himself

“left for the day” after speaking “briefly with [Garcia]” and being asked “to document what

took place.” Id. (suggesting that the written account was prepared in response to Garcia’s

request).

In contrast to his written account, Gordon’s first declaration contains a much shorter

version of the events of June 13, 2017. The first declaration asserts as follows:

On or about June 13, 2017, Stewart instigated an altercation with me. Stewart

yelled and cursed at me during this altercation. I felt threatened during this

altercation because Stewart was physically close to me and he was

simultaneously acting in a belligerent manner. Stewart also called an

employee, Tiffany Robertson, a “bitch” after she came out to calm Stewart

down during this altercation.

See J.A. 213. Gordon stated in his first declaration that “Stewart was suspended and

subsequently terminated due to this belligerent outburst.” Id. Thereafter, in his second

declaration, Gordon specified that “Stewart was solely suspended and terminated due to

his tirade against me on June 13, 2017.” Id. at 362.

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Meanwhile, Garcia averred in his declaration that he learned of, but did not witness,

“an altercation between Stewart and Gordon.” See J.A. 217. That is, Garcia stated that “I

did not witness the altercation, but I did hear [a] commotion at the end of the altercation,”

which “made me go out of the office I was in to check on what was going on.” Id. Garcia

“learned that the commotion was an altercation between Stewart and Gordon,” and

“Stewart was suspended while GES conducted an investigation of the incident.” Id. GES

“ultimately decided to terminate Stewart’s employment” because it “simply could not

tolerate such belligerent and insubordinate conduct from an employee.” Id. The decision

was made by Azkona and Baroja, and Garcia “was the individual tasked with informing

Stewart of his termination” during Azkona and Garcia’s June 21, 2017 meeting with

Stewart. Id.

As for the internal investigation of Yarbrough, the two documents produced by GES

reflect that GES opened — and also closed — the investigation on June 22, 2017, the day

after Stewart’s termination. By the document opening the investigation, GES notified

Yarbrough of an allegation that “[o]n June 14, when you were with 2 companions, you

made the following comment[:] ‘Sit one of you in the front part with me that I do not want

people think that I’m a slave’s driver.’” See J.A. 203. 4 GES accorded Yarbrough two days

“to submit in writing any disclaimers and / or claims you deem appropriate.” Id. The

record does not contain a written response from Yarbrough, but according to Garcia’s

4

In the district court proceedings, GES acknowledged that the use of the date “June

14” was apparently “a scrivener’s error” and that the correct date is “April 14, 2017, Good

Friday.” See J.A. 52 n.8.

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declaration, “Yarbrough admitted he used the term ‘slave driver’ because was driving with

[Stewart and another African American employee] and they were sitting in the back while

Ya[r]brough was in the front alone.” Id. at 217.

By the document then promptly closing the investigation, GES informed Yarbrough

that “[w]e have received your allegations and after analyzing them, valuing your

repentance and your trajectory in the Company, we inform you that by this time, the

consequences of your action will be limited to written warning.” See J.A. 204. Yarbrough

was further advised that “if this type of action is repeated again, we will be obliged to take

harder actions.” Id.

B.

GES’s summary judgment motion was referred to a magistrate judge for

recommendations to the district court. By the Report of Magistrate Judge of September 7,

2023, the magistrate judge recommended awarding summary judgment to GES on plaintiff

Stewart’s hostile work environment and race discrimination claims, but denying summary

judgment to GES on Stewart’s retaliatory discharge claim. See Stewart v. GES Recycling

S.C. LLC, No. 7:21-cv-01782 (D.S.C. Sept. 7, 2023), ECF No. 55 (the “Report”).

The magistrate judge concluded that the hostile work environment claim fails for,

inter alia, being time-barred. See Report 12-13 (quoting Guessous v. Fairview Prop. Invs.,

LLC, 828 F.3d 208, 223 (4th Cir. 2016), for the proposition that “[h]ostile work

environment claims under § 1981 are subject to a four year limitation period”). That is so,

the magistrate judge explained, because the relevant acts of racial harassment — mainly

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those allegedly perpetrated by Yarbrough — occurred more than four years before Stewart

initiated this action on June 14, 2021.

Notably, the magistrate judge considered whether “Gordon’s alleged conduct on

June 13, 2017, [could] salvage [Stewart’s] hostile work environment claim and bring it

within [§] 1981’s statute of limitations under the continuing violation doctrine.” See

Report 14 (recognizing that, under the continuing violation doctrine as elucidated in

Guessous, 828 F.3d at 222 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

117 (2002)), if “an act contributing to the claim occurs within the filing period,” then “the

entire time period of the hostile environment may be considered by a court for the purposes

of determining liability”). The magistrate judge determined that Gordon’s alleged conduct

could not salvage the hostile work environment claim because that conduct, i.e., Gordon’s

imitation of the two African American employees who had just given Stewart fist pounds,

did not include any “racial or derogatory comments whatsoever” and thus was not “racially

offensive.” Id. As the magistrate judge saw it, “[n]othing in the record — other than

[Stewart’s] own interpretation of Gordon ‘poking out’ his lips — suggests that the conduct

was based on race.” Id. at 15.

Next, the magistrate judge concluded that the claim of race discrimination in

training and promotion opportunities fails for, inter alia, also being time-barred. See White

v. BFI Waste Servs., LLC, 375 F.3d 288, 291-92 (4th Cir. 2004) (observing that such § 1981

discrimination claims, like § 1981 hostile work environment claims, “are governed by [a]

four-year federal statute of limitations”). Here, the magistrate judge explained that —

“consistent with the fact that [Stewart] was suspended from June 13, 2017, until his

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termination of employment on June 21, 2017” — he “failed to provide any evidence that

he asked to be trained on the crane and was denied the opportunity after June 14, 2017.”

See Report 20.

Lastly, however, with respect to the indisputably-timely retaliatory discharge claim,

the magistrate judge concluded that there is a genuine dispute of material fact as to whether

retaliation was a but-for cause of Stewart’s termination. See Report 22-23 (quoting

Guessous, 828 F.3d at 217, for the proposition that “[r]etaliation claims . . . require the

employee to show that retaliation was a but-for cause of a challenged adverse employment

action” (internal quotation marks omitted)). “Clearly,” the magistrate judge emphasized,

“issues of material fact remain.” Id. at 23.

C.

Following the issuance of the Report on September 7, 2023, the parties timely filed

objections to the magistrate judge’s recommendations. Plaintiff Stewart objected to the

recommendation to award summary judgment to GES on the hostile work environment

claim, but he did not object to the recommendation to award summary judgment to GES

on the claim of race discrimination in training and promotion opportunities. GES objected

to the recommendation to deny its request for summary judgment on the retaliatory

discharge claim. By the Summary Judgment Opinion of May 7, 2024, the district court

resolved to award summary judgment to GES on all three of Stewart’s claims.

As to the hostile work environment claim, the district court rejected the magistrate

judge’s determination that Gordon’s imitation of the two African American employees on

June 13, 2017 — which the court referred to as the “Lip Incident” — was not based on race

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or racially offensive. See Summary Judgment Opinion 9 n.6. The court explained that a

jury could credit Stewart’s description of the Lip Incident and reasonably understand “that

Gordon was mockingly imitating the two African-American men who had just fist bumped

[Stewart],” that Gordon “imitated their ‘big bottom lips’ by poking out his lower lip,” and

“that Gordon’s imitating the African-American men in this way was racially offensive,

especially in light of the hostility that Gordon had expressed in the past concerning AfricanAmerican employees’ complaints of discrimination.” Id.

In any event, the district court concluded that the hostile work environment claim is

yet time-barred, in that “[t]he Lip Incident, the last unwelcome and offensive conduct

[Stewart] testified that he experienced, occurred on June 13, 2017, which is more than four

years prior to [his] filing the Complaint on June 14, 2021.” See Summary Judgment

Opinion 9. On that ground, the court awarded summary judgment to GES on the hostile

work environment claim.

Similarly, the district court awarded summary judgment to GES on the claim of race

discrimination in training and promotion opportunities. See Summary Judgment Opinion

8 n.5 (noting the lack of objection to, and adopting, the magistrate judge’s conclusion that

the race discrimination claim is time-barred).

Turning to the retaliatory discharge claim, the district court disagreed with the

magistrate judge’s conclusion that there is a genuine dispute of material fact as to whether

retaliation was a but-for cause of Stewart’s termination. Applying the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the court ruled

that “even assuming [Stewart] can establish a prima facie case of retaliation” —

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particularly because of the close temporal proximity between his discrimination complaints

and subsequent termination —Stewart has failed to meet “his burden of demonstrating that

GES’s proffered reason [for the termination] is merely a pretext for retaliation.” See

Summary Judgment Opinion 12-13.

The district court premised its ruling on the proposition that GES has always

claimed that Stewart “was terminated based on the insubordinate and belligerent conduct

that he exhibited toward Gordon,” and not “simply for using profanity.” See Summary

Judgment Opinion 15. In so doing, the court discerned that there is no “conflicting

evidence concerning the reason that [GES’s designated decisionmakers] Azkona and

Baroja decided to terminate [Stewart].” Id. at 14. For support, the court equated Stewart’s

evidence that Garcia told Stewart the termination was because of “the way you talked to

[Gordon],” with Garcia’s declaration that the termination was because of Stewart’s

“belligerent and insubordinate conduct.” Id. (citations omitted).

Concomitantly, the district court interpreted the record to be conclusive that Stewart

in fact engaged in the “belligerent and insubordinate conduct” claimed by GES. In that

regard, the court emphasized that “the outburst [Stewart] directed toward Gordon was so

disruptive that another employee [Robertson] ended up asking [Stewart] to be quiet and

Garcia eventually intervened to attempt to calm [Stewart] down and then told him to go

home.” See Summary Judgment Opinion 15 (internal quotation marks omitted).

As a result of this view of the facts and the inferences drawn therefrom, the district

court deemed Stewart’s “evidence that profanity was commonplace at GES” to be

irrelevant and Stewart’s “focus on [his] use of profanity” to be “a straw man.” See

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Summary Judgment Opinion 14-15. Additionally, the court faulted Stewart for having “not

identified any other GES employee who ever addressed his supervisor in such an

insubordinate and belligerent manner without suffering comparable consequences.” Id. at

15.

The district court considered — but dismissed as unhelpful to Stewart — Stewart’s

evidence “that Gordon had warned [Stewart] early on in his employment to stay away from

two black employees who had complained of discrimination.” See Summary Judgment

Opinion 15. The court explained:

At most, . . . this evidence tends to show that Gordon harbored retaliatory

animus. As noted, however, although Gordon imposed the initial, one-day

suspension on June 13, 2017, [Stewart] has not forecasted any evidence that

Gordon had any involvement in any decision regarding [Stewart] after that.

In fact, the day after the suspension, which was [Stewart’s] day off, GES had

[Stewart] come in to write a statement providing his account of the events in

question. It was then the following day — when [Stewart] had been

scheduled to return to work — that [GES] informed [Stewart] that his

suspension would be continuing indefinitely . . . .

Id. at 15-16 (citations omitted).

The district court further observed that Stewart had not made “any argument as to

why any retaliatory animus on Gordon’s part could be imputed to GES,” such as “under a

‘cat’s paw’ theory of liability.” See Summary Judgment Decision 16 n.9 (quoting Staub v.

Proctor Hosp., 562 U.S. 411, 422 (2011), for the proposition that under the cat’s paw

theory, “if a supervisor performs an act motivated by [unlawful] animus that is intended by

the supervisor to cause an adverse employment action, and if that act is a proximate cause

of the . . . employment action, then the employer is liable” (alterations in original) (footnote

omitted)). According to the court, “a reasonable jury would have no basis for imputing

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any retaliatory animus from Gordon to GES concerning [Stewart’s] termination,” in that

Stewart failed to “forecast[] evidence that Gordon intended to take any action against

[Stewart] beyond suspending him for one day, that Gordon recommended any punishment

beyond that initial suspension, or that Azkona and Baroja involved Gordon in any way in

the decision to terminate [Stewart].” Id.

Summarizing its decision on the retaliatory discharge claim, the district court then

stated:

Despite the temporal proximity between [Stewart’s race discrimination]

complaints and his [subsequent] termination, given the belligerent and

insubordinate manner in which [Stewart] presented his complaints, and given

GES’s subsequent investigation, no reasonable jury could conclude that GES

would not have terminated [Stewart] but for the fact that [Stewart’s]

objectionable conduct occurred while he was complaining of race

discrimination.

See Summary Judgment Opinion 16-17. By accompanying citations, the court analogized

this case to cases involving plaintiffs who were terminated after engaging in “intimidating”

and “threatening behavior.” Id. at 17 (citing, inter alia, Holland v. Wash. Homes, Inc., 487

F.3d 208, 218 (4th Cir. 2007)). The court thereby awarded summary judgment to GES on

the retaliatory discharge claim.

***

Plaintiff Stewart timely noted this appeal, in which he contests solely the district

court’s summary judgment award to GES on the retaliatory discharge claim. We possess

jurisdiction pursuant to 28 U.S.C. § 1291.

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II.

We review de novo a district court’s award of summary judgment. See EEOC v.

Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Like the district court, we are

obliged to view the facts and inferences drawn therefrom in the light most favorable to the

non-moving party. Id. Summary judgment is appropriate only when “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See Fed. R. Civ. P. 56(a).

A plaintiff may avert summary judgment on a 42 U.S.C. § 1981 retaliatory

discharge claim by presenting direct or circumstantial evidence that raises a genuine issue

of material fact as to whether retaliation motivated the employer’s termination decision, or

by proceeding under the familiar McDonnell Douglas burden-shifting framework. See

Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Ultimately, the

plaintiff must demonstrate “that retaliation was a but-for cause of [the termination].” Id.

at 217 (internal quotation marks omitted). “This requires proof that the [retaliatory

discharge] would not have occurred in the absence of the alleged wrongful action or actions

of the employer.” Id. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013)).

The McDonnell Douglas burden-shifting framework first requires the plaintiff to

establish a prima facie case of retaliation, i.e., that (1) he engaged in a protected activity,

(2) the employer took an adverse employment action against him by discharging him; and

(3) a causal relationship existed between the protected activity and the discharge. See

Guessous, 828 F.3d at 216-17. Regarding the third element, “[i]t is well-established that

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close temporal proximity weighs heavily in favor of finding a genuine dispute as to

causation.” See Cowgill v. First Data Techs., Inc., 41 F.4th 370, 380 (4th Cir. 2022)

(internal quotation marks omitted).

If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the

employer to articulate a non-retaliatory reason for the discharge. See Guessous, 828 F.3d

at 216-17. Once the employer does so, the burden shifts back to the plaintiff to demonstrate

that the employer’s proffered reason is a pretext for retaliation. Id. At this juncture, “the

plaintiff’s burden to show pretext merges with the plaintiff’s ultimate burden of [proving]

that she was a victim of intentional [retaliation].” Id. at 217 (internal quotation marks

omitted). Pretext may be shown in a variety of ways, including by evidence that the

employer’s proffered reason “is false” or has “changed over time.” See Wannamaker-Amos

v. Purem Novi, Inc., 126 F.4th 244, 257-58 (4th Cir. 2025).

III.

In contesting the district court’s award of summary judgment to GES on his

retaliatory discharge claim, plaintiff Stewart maintains that the court failed to view the facts

and inferences drawn therefrom in the light most favorable to him and thereby failed to

recognize that there is a genuine dispute of material fact as to whether retaliation was a

but-for cause of his termination. We are constrained to agree.

A.

We specifically reject the district court’s ruling that, under the McDonnell Douglas

burden-shifting framework, plaintiff Stewart has failed to demonstrate that GES’s

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proffered reason for the termination is a pretext for retaliation. As heretofore explained,

the district court premised its pretext ruling on there being no dispute that (1) GES has

always claimed that Stewart was terminated because of “belligerent and insubordinate

conduct” beyond the mere use of profane language and (2) this “belligerent and

insubordinate conduct” in fact occurred. In other words, the court saw it as undisputed that

GES’s proffered reason for the termination is true and has been consistent.

Properly viewing the facts and inferences drawn therefrom in the light most

favorable to Stewart, however, there are genuine disputes of material fact as to whether

GES’s proffered reason “is false” or has “changed over time.” See Wannamaker-Amos v.

Purem Novi, Inc., 126 F.4th 244, 257-58 (4th Cir. 2025). Consequently, Stewart “may

establish pretext through evidence that [GES’s] purported [non-retaliatory] reason for [the]

termination is false.” See id. at 257. Additionally or alternatively, Stewart may establish

pretext through evidence that GES’s purported reason for the termination has not been

consistent, as “the fact that [GES] has offered different justifications at different times is,

in and of itself, probative of pretext.” See id. at 258 (citation modified).

1.

We begin by explaining why we reject the district court’s view that there is no

dispute the “belligerent and insubordinate conduct” claimed by GES in fact occurred. To

review, the court saw it as a “given” fact that plaintiff Stewart “presented his complaints”

to Gordon in a “belligerent and insubordinate manner,” i.e., in an intimidating and

threatening way. See Summary Judgment Opinion 16-17. In interpreting the record to be

conclusive that Stewart engaged in this “belligerent and insubordinate conduct,” the court

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emphasized that “the outburst [Stewart] directed toward Gordon was so disruptive that

[Robertson] ended up asking [Stewart] to be quiet and Garcia eventually intervened to

attempt to calm [Stewart] down and then told him to go home.” Id. at 15 (internal quotation

marks omitted).

Stewart’s account, however, involves no worse conduct than using profane language

and perhaps raising his voice. As Stewart has underscored, it is only in GES’s account that

the purported “belligerent and insubordinate conduct” occurred. And because GES’s

account “differs considerably from” Stewart’s, “[a] genuine issue of material fact exists

regarding Stewart’s alleged threatening behavior.” See Br. of Appellant 11; see also J.A.

467 (advancing same argument in district court).

To be sure, Stewart’s account does include the facts on which the district court

relied, i.e., that Robertson told Stewart to be quiet and that Garcia intervened to calm

Stewart down. But the appropriate inference is not that Robertson’s and Garcia’s actions

were attributable to any purported “belligerent and insubordinate conduct” on the part of

Stewart.

In so saying, we “take into consideration the full events as they transpired on June

13, 2017,” as Stewart has “urge[d]” both this Court and the district court to do. See Br. of

Appellant 12; J.A. 468. Pursuant to Stewart’s account:

● By June 13, 2017, Stewart had endured months of racial harassment

and perceived race discrimination at the GES plant, yet Stewart felt

he had to refrain from complaining, both because management

already knew of and tolerated racial harassment in the workplace and

because Gordon had expressed retaliatory animus against

complaining workers;

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● Stewart was finally driven to complain on June 13, 2017, after Gordon

himself perpetrated harassment (in what the district court recognized

to be the racially offensive “Lip Incident”) and after Stewart and

Gordon had words in the breakroom about Stewart’s lack of training

as a crane operator;

● Though Stewart only alluded in the breakroom to the racial

harassment he had encountered, he obviously angered Gordon;

● Gordon then called Stewart to Gordon’s office, where Gordon

pretended not to understand why Stewart was upset and goaded

Stewart into detailing his discrimination complaints;

● Once Stewart detailed his discrimination complaints, Gordon sought,

without success, to coerce Stewart to quit and then promptly

suspended him;

● As Stewart protested the suspension, Gordon evidenced a guilty

conscience by running outside; and

● Now also outside, Stewart overheard Gordon calling a replacement

worker and sharing that Stewart had been suspended, prompting

Stewart to rebuke Gordon for disclosing the suspension and to again

rebuke Gordon for imposing the suspension.

It was at this point in Stewart’s account that Robertson told Stewart to be quiet. Thereafter,

Stewart was approached and calmed by Garcia. As Stewart described himself, he was

“very very upset.” See J.A. 158.

Contrary to the district court’s view, the appropriate inference to be drawn from the

fact that Robertson told Stewart to be quiet is that Robertson simply objected to the volume

or substance of what she heard Stewart say to Gordon. Indeed, a directive to be quiet is

hardly an expected response to the type of “belligerent and insubordinate conduct” claimed

by GES. Moreover, although it can be inferred that Stewart spoke loudly enough to be

heard by Robertson, nowhere in the record is there clear evidence as to how loud that was.

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Nor is there clear evidence that Stewart spoke so loudly as to be intimidating or threatening.

As for the fact that Garcia thereafter calmed Stewart, the appropriate inference is that

Stewart needed calming because he was admittedly “very very upset.” Of course, one can

be “very very upset” without being intimidating or threatening.

At bottom, neither the facts cited by the district court nor any other aspect of

Stewart’s account compels a conclusion that Stewart engaged in the “belligerent and

insubordinate conduct” claimed by GES. Rather, Stewart’s behavior can be viewed as a

non-intimidating, non-threatening, and wholly understandable response to the series of

events leading up to and occurring on June 13, 2017. 5

2.

That brings us to our explanation of why we reject the district court’s view that there

is no dispute GES has always blamed plaintiff Stewart’s termination on “belligerent and

insubordinate conduct” beyond the mere use of profane language. On this matter, the court

discerned no conflicting evidence concerning GES’s purported reason for the termination,

as the court equated Stewart’s evidence that he was told the termination was because of

5

Although not necessary to our decision, we observe that Stewart makes an

additional cogent point on appeal that he seemingly did not articulate in the district court:

that GES’s allegation of “belligerent and insubordinate conduct” is belied by the evidence

that Stewart “was calmly escorted to his car by management” on June 13, 2017, and that

GES had Stewart return to the plant the next day “to give a written statement” and then

once again “to deliver the news of his termination.” See Br. of Appellant 14. As Stewart

puts it, “[a] rational jury could reject GES’s characterization of Stewart’s behavior since

[GES] did not appear to be concerned about Stewart coming back to the workplace,” such

that there is “a genuine issue of material fact regarding [GES’s] characterization of plaintiff

as being threatening.” Id.

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“the way you talked to [Gordon],” with Garcia’s declaration that the termination was

because of Stewart’s “belligerent and insubordinate conduct.” See Summary Judgment

Opinion 14 (citations omitted).

The appropriate inference to be drawn from Stewart’s evidence, however, is that

when Garcia told Stewart the termination was because of “the way you talked to [Gordon],”

see J.A. 151, Garcia was referring to Stewart’s use of profanity, and not to some other

“belligerent and insubordinate conduct.” This is an entirely reasonable and natural

interpretation of Garcia’s words, and it is clearly the way Stewart understood them.

Significantly, Stewart’s arguments in these proceedings — in both this Court and

the district court — plainly reflect an understanding that Garcia told Stewart he was being

terminated for profanity alone. For example, Stewart has contended that “[t]here is a

genuine issue of material fact whether [his] use of profanity was the basis for the

termination or whether [his] complaints about the race discrimination was the real reason.”

See Br. of Appellant 8; see also J.A. 270.

Furthermore, Stewart has addressed whether profanity alone could be a plausible

reason for the termination. In that regard, Stewart has maintained that his evidence “that

profanity was widely used [at the GES plant]” — including former coworker Denning’s

declaration — “must be considered in evaluating GES’s allegations that Stewart’s language

was so egregious that it warranted a termination.” See Br. of Appellant 10; see also J.A.

467. Stewart has also highlighted evidence that he “had used the word motherfucker at

least three times before Gordon told him he was suspended,” asserting that “[i]f the use of

the profanity was such an egregious event, one would think that Gordon would have

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suspended Stewart immediately, especially when the first two times occurred in the

[breakroom] in the presence of another employee.” See Br. of Appellant 12; see also J.A.

468-69.

The district court itself acknowledged that Stewart presented “evidence that

profanity was commonplace at GES” and “focus[ed] on [his] use of profanity.” See

Summary Judgment Opinion 14-15. But because the court thought it undisputed that GES

has always blamed the termination on “belligerent and insubordinate conduct” beyond the

mere use of profane language, the court deemed Stewart’s profanity evidence to be

irrelevant and his focus on profanity to be “a straw man.” Id. at 15.

Instead, the district court should have recognized that Stewart proffered the

profanity evidence and focused on his use of profanity because of an important factual

dispute regarding the consistency of GES’s purported reason for the termination. That

dispute involves whether GES has always blamed the termination on “belligerent and

insubordinate conduct” beyond the mere use of profanity, or whether GES first relied on

the profanity and only later changed its excuse to some other “belligerent and insubordinate

conduct.”

***

Simply put, when viewed in the light most favorable to plaintiff Stewart, the record

reflects that GES told Stewart one thing (that the termination was based solely on his

admitted use of profanity) and is now claiming another (that the termination was because

of other “belligerent and insubordinate conduct” that Stewart says never occurred).

Contrary to the district court, this engenders genuine disputes of material fact under the

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McDonnell Douglas burden-shifting framework as to whether GES’s claim of “belligerent

and insubordinate conduct” is a pretext for retaliation and, thus, whether retaliation was a

but-for cause of Stewart’s termination. Specifically, there are genuine disputes of material

fact as to whether GES’s claim of “belligerent and insubordinate conduct” is false or has

changed over time. We therefore vacate the court’s summary judgment award to GES on

Stewart’s retaliatory discharge claim and remand for further proceedings. 6

B.

We take a moment to respond to our good colleague’s dissenting opinion herein,

which criticizes us for equating the “belligerent and insubordinate conduct” claimed by

GES with intimidating and threatening behavior. As the dissent would have it, GES asserts

only that plaintiff Stewart engaged in “belligerent” and “insubordinate” conduct that, by

dictionary definition of those terms, did not rise to the level of being intimidating and

threatening. The dissent thus asserts that “[q]uestioning whether Stewart was, in fact,

intimidating or threatening misses the mark in answering whether GES honestly believed

6

Having recognized that there are genuine disputes of material fact as to whether

GES’s claim of “belligerent and insubordinate conduct” is false or has changed over time,

we reject the alternative ground for summary judgment that has been advanced by GES:

that Stewart has failed to demonstrate a prima facie case of retaliation under the McDonnell

Douglas burden-shifting framework, in that “Stewart’s abusive tirade clearly constitutes

an intervening event such that causation cannot be established, even assuming sufficient

temporal proximity.” See Br. of Appellee 15. Moreover, because our decision does not

turn on there being a dispute as to whether profanity alone could have been a plausible

excuse for Stewart’s termination, we refrain from unnecessarily addressing GES’s

challenge to the adequacy and admissibility of Denning’s declaration that profanity was

widely used at the GES plant. See id. at 18-19 (contesting Denning’s statement as “nothing

more than a conclusory allegation” and “pure hearsay”).

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he was belligerent and insubordinate.” See post 42. “And based on Stewart’s admitted

conduct,” the dissent “see[s] no genuine dispute of material fact on that front.” Id.

What the dissent overlooks, however, is that GES itself has equated Stewart’s

purported “belligerent and insubordinate conduct” with intimidating and threatening

behavior. GES does so in this Court, see Br. of Appellee 17, and it did so in the district

court, see J.A. 33-34, 64. Indeed, the district court not only appreciated, but endorsed,

GES’s analogy. See Summary Judgment Opinion 17. Stewart, too, has understood that in

blaming his termination on “belligerent and insubordinate conduct,” GES means

intimidating and threatening behavior. See Br. of Appellant 10-11, 13-14; J.A. 467. We

therefore have properly proceeded with the same understanding, and it is our dissenting

friend who misinterprets GES’s “belligerent and insubordinate conduct” claim.

Based on that misinterpretation, the dissent goes on to wrongly insist there is “no

substantial difference” between Garcia advising Stewart he was being terminated because

of “the way you talked to [Gordon]” and Garcia’s later declaration that the termination was

because of Stewart’s “belligerent and insubordinate conduct.” See post 43-44 (quoting J.A.

151, 217). That is, the dissent proclaims that “the ‘way’ Stewart spoke to Gordon was, in

fact, ‘belligerent and insubordinate.’” Id. at 44. The dissent thereby ignores the substantial

difference between blaming the termination on “the way you talked to [Gordon]” and

blaming the termination on conduct so egregious that it rose to the level of being

intimidating and threatening.

Concomitantly, like the district court, the dissent fails to view the facts and

inferences drawn therefrom in the light most favorable to Stewart. Although the dissent

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allows that the GES plant “sounds like an awful place to work” because of “prevalent

racism, profanity and vulgarity,” the dissent deems the record to show “[w]ithout a doubt”

that GES terminated Stewart not for his discrimination complaints, but for “hurling

obscenities so loud that other employees had to get involved.” See post 44-45. We, on the

other hand, abide by our obligation to view the facts in Stewart’s favor and thus discern a

genuine dispute as to whether retaliation was a but-for cause of his termination.

C.

Finally, because these proceedings will be ongoing due to our remand, we think it

prudent to acknowledge that, to date, neither our Court nor the district court has been well

served by the parties’ respective lawyers. Following are several examples of what has

especially troubled us.

1.

Understandably, plaintiff Stewart has sought to rely on direct and circumstantial

evidence of Gordon’s retaliatory animus, including Stewart’s own account of being warned

by Gordon not to associate with complaining African American coworkers, as well as

Denning’s account of Gordon threatening to fire Denning if he continued speaking up about

racism in the workplace. Nevertheless, Stewart inexplicably failed in the district court to

identify a basis for imputing Gordon’s alleged animus to GES. See Summary Judgment

Opinion 16 n.9 (observing that Stewart had not made “any argument as to why any

retaliatory animus on Gordon’s part could be imputed to GES,” such as “under a ‘cat’s

paw’ theory of liability”).

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Only now, on appeal, has Stewart done so, contending that under the cat’s paw

theory, Gordon’s retaliatory animus can be imputed to GES in that “[i]t was Gordon who

characterized Stewart as threat[en]ing” and “Gordon’s evidence formed the basis of GES’s

decision to terminate Stewart.” See Br. of Appellant 19 (citing, inter alia, Staub v. Proctor

Hosp., 562 U.S. 411, 422 (2011), which explains that “if a supervisor performs an act

motivated by [unlawful] animus that is intended by the supervisor to cause an adverse

employment action, and if that act is a proximate cause of the . . . employment action, then

the employer is liable” (footnote omitted)). We have not considered this argument,

however, because Stewart failed to advance it in the district court. See Karpel v. Inova

Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (advising “that issues raised for

the first time on appeal generally will not be considered”). 7

2.

For its part, GES has insisted that it terminated plaintiff Stewart for “belligerent and

insubordinate conduct” beyond the mere use of profane language, without ever providing

a clear and consistent explanation of what this purported conduct entailed. On this issue,

GES has presented no declarations of its designated decisionmakers Azkona and Baroja,

and GES instead relies on declarations of Garcia and Gordon. Although GES asserts that

the termination followed an investigation, the only other evidence concerning the

Fortunately for Stewart, we have concluded that he can otherwise avert summary

7

judgment by proceeding under the McDonnell Douglas burden-shifting framework.

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investigation is Gordon’s unsworn and undated written account of the events of June 13,

2017.

According to Gordon’s written account, Stewart physically intimidated Gordon

during their interactions first in Gordon’s office and then outside, particularly by

“back[ing] [Gordon] into [an outside] barrier wall and against a fence where I felt trapped.”

See J.A. 206. After Gordon “remove[d] myself from the situation” and “move[d] away

from [Stewart],” Garcia and other administrators “came out of their offices due to the

commotion” and “tried to speak calmly with [Stewart].” Id. Stewart responded by “yelling

and cursing at those employees” and “calling them names.” Id.

In striking contrast to Gordon’s written account, however, Garcia’s declaration is

devoid of any assertion that Stewart yelled and cursed at Garcia and called Garcia names,

or that Stewart yelled and cursed at other employees and called them names in Garcia’s

presence. Moreover, the first of Gordon’s own two declarations recounts just that Stewart

“called [a single] employee, Tiffany Robertson, a ‘bitch’ after she came out to calm Stewart

down.” See J.A. 213.

Meanwhile, Gordon’s first declaration makes no mention of Stewart backing

Gordon into a barrier wall and trapping him against a fence. Rather, Gordon’s first

declaration only generally asserts that Gordon “felt threatened . . . because Stewart was

physically close to me and he was simultaneously acting in a belligerent manner.” See J.A.

213.

Both Garcia’s declaration and Gordon’s second declaration specify that Stewart was

terminated because of his conduct toward Gordon alone, and not Robertson, Garcia, or

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anyone else. Garcia’s declaration contains no details of that conduct, merely explaining

that there “was an altercation between Stewart and Gordon,” that Garcia himself “did not

witness the altercation,” that “Stewart was suspended while GES conducted an

investigation of the incident,” and that Stewart was then terminated because GES “simply

could not tolerate such belligerent and insubordinate conduct from an employee.” See J.A.

217.

Rather than providing clarity as to what Stewart’s alleged “belligerent and

insubordinate conduct” entailed, GES’s briefing in the district court and this Court has

further muddied the waters. Inconsistent with its already-inconsistent evidence, GES has

provided a factual statement in which, while outside on June 13, 2017, Stewart first called

Robertson a “bitch,” then “continued [to] swear and yell at other employees,” and only

thereafter “trapped Gordon in front of a barrier wall,” apparently with the other employees

watching. See J.A. 51 (internal quotation marks omitted); see also id. at 434; Br. of

Appellee 4-5.

GES has also maintained — patently falsely — that Stewart “freely admits to . . .

misconduct” including “physically trapping [Gordon] in front of a barrier.” See J.A. 64;

see also Br. of Appellee 15 (again falsely asserting that “[i]t is not disputed that Stewart

. . . physically trapp[ed] [Gordon] in front of a barrier,” as “Stewart admits to this

misconduct”).

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Turning to the non-retaliatory reason for Stewart’s termination articulated by GES

in these proceedings, GES has variously blamed the termination on the following:

(1) A purely verbal but intimidating and threatening attack on Gordon, in

which Stewart loudly and belligerently yelled at Gordon and called

him a “motherfucker” and a “fat motherfucker” several times;

(2) The verbal attack on Gordon plus a physical one, in which Stewart

trapped Gordon in front of a barrier wall; and

(3) The verbal and physical attacks on Gordon, along with a verbal attack

on Robertson that included calling her a “bitch.”

In the district court, GES’s summary judgment memorandum articulated reason (2). See

J.A. 64. GES’s subsequent objections to the magistrate judge’s Report first articulated

reason (1) and then four pages later claimed reason (3). See id. at 433, 437. Now on appeal,

GES’s response brief similarly first articulates reason (1) and then three pages later claims

reason (3). See Br. of Appellee 12, 15.

Consequently, when we refer throughout today’s decision to Stewart’s purported

“belligerent and insubordinate conduct,” we have been left by GES to do so with no clear

understanding of what this conduct allegedly entailed. 8

8

We note that because Stewart has not made an issue of GES’s failure to clearly

and consistently explain what the purported “belligerent and insubordinate conduct”

entailed, it is not one of the bases for our vacatur of the district court’s summary judgment

award to GES on Stewart’s retaliatory discharge claim. We instead rely on a different

inconsistency, that being the inconsistency between what Stewart says GES told him (that

he was being terminated solely because he used profane language) and what GES now

claims (that the termination was based on “belligerent and insubordinate conduct” beyond

the mere use of profanity).

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3.

In addition to misstating the record as to plaintiff Stewart’s purported “belligerent

and insubordinate conduct,” GES has misstated the record as to other matters, including its

internal investigation of Yarbrough the day after Stewart’s termination on June 21, 2017.

Seeking credit for conducting the investigation and issuing Yarbrough a written reprimand,

GES has asserted that it “investigated [Stewart’s] allegations of racially insensitive

comments by Yarbrough,” and that “Yarbrough denied using the word ‘n[*****]’ with

[Stewart]” but “admitted that he had used ‘slave driver’ on one occasion in April 2017.”

See J.A. 52 (footnote omitted); see also Br. of Appellee 5.

What the record actually shows is that although Stewart’s written statement to GES

of June 14, 2017, included express complaints about Yarbrough’s “n***** slave driver”

comment and racist “chicken” cartoon (as well as the unpunished “stupid n*****s”

comment that Yarbrough had reported to Stewart), GES investigated only Yarbrough’s

alleged “n***** slave driver” comment. And in doing so, GES informed Yarbrough that

he had been accused of using the term “slave driver,” not “n***** slave driver.”

Yarbrough then confessed to the only accusation that GES presented to him, admitting he

used the term “slave driver.” Contrary to GES, the record in no way reflects either that

GES investigated all of the “racially insensitive comments” alleged by Stewart or that

Yarbrough denied using the word “n*****” with Stewart.

To be fair, however, GES is not alone in misstating the record. Most glaringly,

Stewart has repeatedly and falsely asserted that the record shows Gordon, like Stewart,

used profane language in their interactions on June 13, 2017. For example, in his

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opposition to GES’s summary judgment motion, Stewart insisted that the record reflects

“[t]here was a heated discussion between Gordon and [Stewart]” in which “[b]oth used

profanity.” See J.A. 263; see also id. at 270 (reiterating contention that “both of them used

profanity towards each other”). On appeal, Stewart persists in asserting, without

evidentiary support, that Gordon joined Stewart in using profanity. See Br. of Appellant

4, 9, 13-14.

***

In these regrettable circumstances, the courts’ work to adjudicate this case has been

needlessly complicated. We thus admonish the lawyers to proceed more honestly and

carefully from here on out.

IV.

Pursuant to the foregoing, we vacate the district court’s award of summary judgment

to GES on plaintiff Stewart’s retaliatory discharge claim, and we remand for such other

and further proceedings as may be appropriate.

VACATED AND REMANDED

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QUATTLEBAUM, Circuit Judge, dissenting:

One thing is clear—GES Recycling South Carolina, LLC’s facility in Union

County, South Carolina was, by Eddie Stewart’s account, a terrible place to work. The

record demonstrates his fellow employees made many offensive and racist comments. In

fact, Stewart’s supervisor, Adam Gordon, made a derogatory gesture to Stewart just

moments before Stewart’s June 13, 2017 outburst. Against this backdrop, Stewart brought

three claims against GES—hostile work environment, race discrimination and retaliation.

The district court granted summary judgment to GES on all of them.

Stewart appeals only his retaliation claim. As to it, despite evidence of racially

offensive and unquestionably inappropriate remarks, I cannot join the majority’s reversal

of summary judgment. That’s because regardless of how toxic the workplace was, Stewart

has failed to raise a genuine dispute of material fact on whether his protected activity of

reporting workplace discrimination to Gordon was the but-for cause of his termination.

Section 1981 of Title 42 of the United States Code prohibits racial discrimination in

making and enforcing contracts. And the Supreme Court has said § 1981 includes

employment retaliation claims. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 445 (2008).

So here, to survive summary judgment on his retaliation claim, Stewart must raise a

genuine dispute of material fact on whether (1) he engaged in protected activity by

opposing discrimination in the workplace, (2) he was subject to an adverse action by his

employer and (3) there was a causal link between the two. See Boyer-Liberto v.

Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc).

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To start, the majority rightly decides that Stewart has waived any cat’s paw theory

of retaliation relying on evidence of Gordon’s animus to impose liability on GES. 1 So, the

majority proceeds to look at Stewart’s circumstantial evidence under the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2

I’ve made my views on McDonnell Douglas known. See Hollis v. Morgan State

Univ., 153 F.4th 369, 387–95 (4th Cir. 2025) (Quattlebaum, J. concurring). First, I take

issue with its origin—it is judicially-manufactured and applies “an evidentiary framework

for trials in a bygone era when judges, not juries, decided Title VII cases.” Id. at 389.

Second, I take issue with its application—it can be underinclusive, heighten the summary

judgment standard and unnecessarily complicate judicial review. See id. at 391–95. And

third, it’s unnecessary. Without McDonnell Douglas, a plaintiff bringing a retaliation claim

would still need to show protected activity, an adverse employment action and causation

between the two, which are the same elements McDonnell Douglas analyzes without all

the complicating back and forth.

1

The term “cat’s paw” derives from one of Aesop’s fables in which “a monkey

induces a cat by flattery to extract roasting chestnuts from the fire.” Staub v. Proctor Hosp.,

562 U.S. 411, 415 n.1 (2011). In the end, the cat is left with burnt paws and the monkey

gets the chestnuts. See id. And while the fable may have tenuous relevance to the

employment law theory bearing its name, it represents the common-sense notion that if you

trust a smooth talker, you may be left holding the bag. Here, on Stewart’s cat’s paw theory

of retaliation, even if it weren’t waived, Stewart has failed to show Gordon intended to

cause his termination. See id. at 422 (“[I]f a supervisor performs an act motivated by

[discriminatory] animus that is intended by the supervisor to cause an adverse employment

action, and if that act is a proximate cause of the ultimate employment action, then the

employer is liable . . . .” (emphasis in original) (footnote omitted)).

2

And to be fair, the district court did too.

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But aside from my disagreement with McDonnell Douglas generally, I disagree with

the majority’s assessment of it here. I’ll assume, for the sake of consistency with the

majority’s analysis under McDonnell Douglas, that Stewart has made out his prima facie

case of retaliation by relying on the close temporal proximity between his protected activity

and termination. 3 See King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003) (finding an

inference of causation where protected activity and termination were “so close” in time);

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

proximity “far from conclusively establishes the requisite causal connection, [but] it

certainly satisfies the less onerous burden of making a prima facie case of causality”).

Still, the McDonnell Douglas framework provides that mere inference isn’t enough

to satisfy but-for causation because an employer may articulate a legitimate, nonretaliatory

reason for an adverse action. 411 U.S. at 802. Here, the one GES offered is that Stewart

exhibited “belligerent and insubordinate conduct” toward Gordon on June 13, 2017. J.A.

217.

3

But this requires a generous assumption. Because temporal proximity is not the

end all be all. Even with temporal proximity there are other reasons there may be no

inference of causation. See Feldman v. L. Enf’t Assocs. Corp., 752 F.3d 339, 348 (4th Cir.

2014) (“The causal connection may be severed . . . by some legitimate intervening event.”)

(quoting Halloum v. Intel Corp., ALJ No. 2003-SOX-7, 2004 WL 5032613, at *16 (Dep’t

of Lab. Mar. 4, 2004)); see also Sigley v. ND Fairmont, LLC, 129 F.4th 256, 260 n.1 (4th

Cir. 2025) (finding no reasonable inference that a plaintiff “was fired because of his

disability rather than his dishonesty” where he admitted that he lied on a medical

questionnaire about physical abilities). But because I find Stewart has failed to raise a

genuine dispute of material fact on pretext, I need not address these points. See Vannoy v

Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016) (assuming without

deciding a plaintiff could establish a prima facie case under McDonnell Douglas in FMLA

retaliation case).

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So, to survive summary judgment, a plaintiff must put forth evidence that, in spite

of the employer’s stated legitimate reason for termination, would still “allow a jury to infer

that the [real] reason” was retaliation. Hollis, 153 F.4th at 381. McDonnell Douglas calls

this “pretext.” 411 U.S. at 804. Here, that means Stewart must show that while GES says

he was fired for one thing—belligerent and insubordinate conduct—that was really pretext

and he was actually fired for another—engaging in protected activity.

The majority finds Stewart has raised a genuine dispute of material fact because

GES’s stated reason was untrue in two ways. First, the majority says a dispute exists over

whether Stewart was in fact belligerent and insubordinate. See Maj. Op. at 23. But that asks

the wrong question. The question is whether GES’s decisionmaker honestly believed

Stewart was belligerent and insubordinate. See Lashley v. Spartanburg Methodist Coll., 66

F.4th 168, 177 (4th Cir. 2023) (holding “a plaintiff must rebut the fact that the

decisionmaker honestly believed” a plaintiff’s conduct was threatening, “regardless of

whether the plaintiff did in fact issue the threats” (citation modified)). But the majority’s

answer is wrong framed under either question.

According to the majority, the entirety of the altercation, which includes Stewart’s

admissions of calling his boss a “m**********r” 4 repeatedly, J.A. 133, 134, 194, raising

his voice, telling a coworker to “go the f**k on back” to her office, J.A. 137, and

management’s intervention to deescalate the situation and send Stewart home for the day

4

I agree with the majority’s choice to sanitize some of the abhorrent language

alleged. But I’ve done so more broadly. I think my mother, who reads my opinions, will

approve.

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does not indicate Stewart was belligerent and insubordinate. That’s because nothing

Stewart did was, according to the majority, “intimidating and threatening.” Maj. Op. at 23.

Respectfully, I disagree. GES said “belligerent and insubordinate.” J.A. 217. Not

“intimidating and threatening.” Maj. Op. at 23. Belligerent means “inclined to or exhibiting

assertiveness, hostility, or combativeness.” Belligerent, Merriam-Webster’s Collegiate

Dictionary (11th ed. 2003). 5 And insubordinate means “disobedient to authority.”

Insubordinate, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Stewart’s

admitted conduct plainly qualifies. Questioning whether Stewart was, in fact, intimidating

or threatening misses the mark in answering whether GES honestly believed he was

belligerent and insubordinate. And based on Stewart’s admitted conduct, I see no genuine

dispute of material fact on that front. 6

5

This edition was in effect at the time of the altercation, at the time of Ander

Garcia’s written declaration and at the time of the district court’s summary judgment

opinion.

6

And with respect to my colleagues in the majority, any dispute about what exactly

happened after the altercation between Stewart and Gordon spilled out of Gordon’s office

doesn’t create a genuine dispute of material fact. If, at that point, Stewart backed Gordon

up against a barrier wall and fence where he felt trapped that would only be additional

evidence that the reason GES gave for terminating Stewart was not pretextual. See J.A.

206. If that didn’t occur, Stewart still undisputably called his boss a “m**********r”

multiple times in a way that was loud enough to cause other GES employees to intervene

and send Stewart home for the day. J.A. 133, 134, 194. In my view, that is enough to

foreclose any genuine dispute of material fact on whether GES’s stated reason for

terminating Stewart—because he was belligerent and insubordinate—was pretextual. See

Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 764 (4th Cir. 2021) (finding a genuine

dispute of material fact where those facts helped “prove the existence of a dispositive

issue”).

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Second, the majority questions whether GES’s explanation for Stewart’s firing

shifted over time. See Maj. Op. at 26–27. On this point, the majority points to the fact that

Stewart stated in his deposition that Ander Garcia told him he was fired for “the way [he]

talked to [Gordon].” J.A. 151. But nearly six years later, Garcia’s written declaration stated

Stewart was terminated for “belligerent and insubordinate conduct.” J.A. 217. To the

majority, those are different because the former refers only to Stewart’s profanity as the

reason for termination. See Maj. Op. at 27. That, plus the fact profanity was commonplace

at GES, 7 supposedly means there is a genuine dispute of material fact on this front because

GES couldn’t have genuinely fired Stewart for profanity alone in a workplace where

profanity was common. See Maj. Op. at 28.

But that’s not a genuine dispute. Not just any change in reason suffices to show

pretext. Rather, a change in reason must be “substantial.” Haynes v. Waste Connections,

Inc., 922 F.3d 219, 226 (4th Cir. 2019) And “an employer is certainly permitted to expand

on its original reason for a termination.” Id. “[M]inor discrepancies that do not cast doubt

on the explanation’s validity . . . [do] not create a “genuine” dispute.” Hux v. City of

Newport News, VA, 451 F.3d 311, 315 (4th Cir. 2006).

7

Stewart goes so far as to say that the fact that he called Gordon a “m**********r

at least three times” before being suspended shows he couldn’t have been fired for

profanity—because if GES truly wanted to fire him for profanity, he should have been fired

after saying it the first time. Op. Br. at 12. But this only undercuts his pretext argument—

he wasn’t fired for profanity alone. He was fired for the “way” he spoke to his supervisor,

or the entirety of the altercation. J.A. 151.

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Here, there’s no substantial difference between GES’s oral and written statements.

One statement is general—“the way you talked to [Gordon].” J.A. 151. The other is

specific—“belligerent and insubordinate conduct.” J.A. 217. It’s like telling one of your

golfing buddies that you can’t play today because of the weather and telling another that

you can’t play because there’s rain and lightning. The two statements are not inconsistent—

the weather that kept the golfers from playing was rain and lightning. In the same way, the

“way” Stewart spoke to Gordon was, in fact, “belligerent and insubordinate.”

Nor can there be a genuine issue of material fact based on what Stewart understood

“the way you talked to [Gordon]” to mean. J.A. 151. The focus here is whether GES’s

reason changed, not how Stewart interpreted it. Hux, 451 F.3d at 315 (“[A] plaintiff cannot

seek to expose [an employer’s] rationale as pretextual . . . by raising points that are wholly

irrelevant to it.”).

Recall that Gordon called Stewart into his office for a private conversation, and

Stewart responded by calling Gordon a “m**********r” repeatedly while describing a

litany of offensive conduct, including some by Gordon himself. J.A. 133, 134, 194. And

that then culminated in multiple employees intervening in their loud altercation and Stewart

being sent home for the day. Stewart concedes all this happened. So, was the profanity part

of the problem? Sure. But was it also that Stewart was hurling obscenities so loud that other

employees had to get involved? Without a doubt. We shouldn’t be splitting hairs here.

There is no genuine dispute that GES has honestly believed throughout proceedings that

Stewart was hostile and defiant both in what he said and how he said it.

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In sum, GES’s Union County location sounds like an awful place to work. The

record reflects prevalent racism, profanity and vulgarity. I don’t condone or minimize any

of that conduct. But the only question before us is whether the district court properly

granted summary judgment on Stewart’s retaliation claim. And the only issue on that claim

is whether Stewart has raised a genuine dispute of material fact on whether GES’s stated

reason for terminating him—for belligerent and insubordinate conduct—was untrue. For

the reasons I’ve explained, he hasn’t. As a result, he has failed to withstand summary

judgment on whether his protected activity was the but-for cause of his termination. So, I

would affirm the district court’s grant of summary judgment to GES on his retaliation

claim.

I respectfully dissent.

45