Komis v. Sec'y of the U.S. Dep't of Labor

• Decision Date: 12 March 2019
• Docket Number: No. 14-3813,14-3813
• Citation: 918 F.3d 289
• Parties: Chrysoula J. KOMIS, Appellant v. SECRETARY OF the UNITED STATES DEPARTMENT OF LABOR
• Court: U.S. Court of Appeals — Third Circuit

918 F.3d 289

Chrysoula J. KOMIS, Appellant

v.SECRETARY OF the UNITED STATES DEPARTMENT OF LABOR

No. 14-3813

United States Court of Appeals, Third Circuit.

Argued: October 28, 2015

Opinion Filed: March 12, 2019

Mark S. Scheffer [ARGUED], Law Offices of Mark S. Scheffer, P.O. Box 111, Birchrunville, PA 19421, Counsel for Appellant

Richard Mentzinger, Jr. [ARGUED], Mark J. Sherer, Office of the United States Attorney for the Eastern District of Pennsylvania, 615 Chestnut Street, Philadelphia, PA 19106, Counsel for Appellee

Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge

Plaintiff Chrysoula J. Komis, a former federal employee, brought Title VII retaliation and retaliatory hostile work environment claims against the Secretary of Labor. The trial court granted judgment as a matter of law for the Secretary on the discrete retaliation claim, and Komis did not appeal. The retaliatory hostile work environment claim went before a jury, which returned a verdict for the Secretary. Komis appeals that verdict, challenging the jury instructions.

This appeal requires us to decide whether federal employees may bring retaliation claims under Title VII. We conclude they may. We are then asked to consider whether the same standard governs federal- and private- sector retaliation claims, and what standard in particular applies to a federal retaliatory hostile work environment claim in light of the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). We need not resolve these questions, however, because Komis cannot prevail under any potentially applicable standard. Accordingly, any error in the jury instructions was harmless. We will affirm.

I.

Between June 2003 and September 2008, Komis filed more than sixty Equal Employment Opportunity (EEO) complaints while employed by the Department of Labor’s Occupational Safety and Health Administration (OSHA). Allegedly in retaliation for those and other EEO complaints filed a decade earlier,¹ Komis contends her employer created a hostile work environment. Specifically, she alleges (inter alia ) her supervisors: (1) denied her the ability to work regularly from home; (2) shifted her job duties to include more clerical work; (3) reassigned her to a different position; and (4) failed to promote her to Assistant Regional Administrator, instead selecting attorney Maureen Russo. Komis further alleges (5) once Russo became her immediate supervisor, Russo improperly disciplined her in retaliation for making additional discrimination claims. The disciplinary actions at issue include a written reprimand, suspension, denial of access to training opportunities, and removal from a particular assignment. We observe that all the hostile acts Komis alleges appear to be discrete personnel actions altering the terms and conditions of her employment.

In August 2008, Komis was issued a notice of proposed removal, informing her of OSHA’s decision to terminate her employment and providing her an opportunity to respond. Komis left OSHA in September 2008 and filed the last of her EEO complaints, alleging constructive discharge.

In October 2008, Komis sued the Secretary of Labor, alleging OSHA violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a). She brought two claims: (1) a retaliation claim based on her nonselection for promotion; and (2) a retaliatory hostile work environment claim. By consent, the matter was tried before a Magistrate Judge. As noted, at the close of Komis’s case, the trial judge granted the Secretary judgment as a matter of law on Komis’s discrete retaliation claim. Komis did not appeal that judgment. The retaliatory hostile work environment claim proceeded to the jury, which returned a verdict in the Secretary’s favor. Komis now challenges the jury charge on appeal.²

II.

The parties dispute whether the Supreme Court’s decision in Burlington Northern v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), renders the trial court’s federal-sector retaliatory hostile work environment charge erroneous, and we must ultimately decide whether the alleged error was harmless. Before addressing those questions, we first review Title VII’s framework for discrimination and retaliation claims in the private and federal sectors.

The "core antidiscrimination provision" of Title VII of the Civil Rights Act of 1964, id. at 61, 126 S.Ct. 2405, provides that in the private sector, "[i]t shall be an unlawful employment practice for an employer":

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment , because of such individual’s race, color, religion, sex, or national origin;

42 U.S.C. § 2000e-2(a)(1) (emphasis added). To state a claim for relief under Title VII’s antidiscrimination provision, plaintiffs must show "an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment." Jones v. Se. Pa. Transp. Auth. , 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Servs. , 390 F.3d 760, 764 (3d Cir. 2004) ). "That definition stems from the language of Title VII itself." Storey , 390 F.3d at 764. "[A]lthough the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition ‘ "is not limited to ‘economic’ or ‘tangible’ discrimination," ’ ... and ... it covers more than ‘ "terms" and "conditions" in the narrow contractual sense.’ " Faragher v. City of Boca Raton , 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ); see also Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 115–16, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

Title VII’s private sector provisions also bar retaliation. While a discrimination claim under Title VII alleges discrimination on the basis of one’s race, color, religion, sex, or national origin, a retaliation claim alleges discrimination on the basis of protected conduct:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). Unlike the antidiscrimination provision, the antiretaliation provision is not limited to employer action that affects the terms and conditions of a claimant’s employment. As the Supreme Court explained in Burlington Northern , "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." 548 U.S. at 63, 126 S.Ct. 2405. To make out a claim of retaliation, a private-sector plaintiff must show "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68, 126 S.Ct. 2405 (internal quotation marks and citations omitted).

Under both the private-sector discrimination and retaliation provisions, §§ 2000e-2(a) and 2000e-3(a), employees may bring claims of a hostile work environment. Discussing a discriminatory hostile work environment, the Supreme Court has explained "[w]orkplace conduct is not measured in isolation," so when a workplace "is permeated with discriminatory intimidation, ridicule, and insult[ ] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated." Morgan , 536 U.S. at 116, 122 S.Ct. 2061 (quoting Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), and Harris , 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks omitted)). We held in Jensen v. Potter , 435 F.3d 444 (3d Cir. 2006), decided before Burlington Northern , "our usual [discriminatory] hostile work environment framework applies equally" to claims of retaliatory hostile work environments. Id. at 449. That framework requires a plaintiff prove:

(1) [S]he suffered intentional discrimination because of her protected activity; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present.

Id. (internal citations omitted). The inquiry into whether the discriminatory or retaliatory environment was "severe or pervasive" recognizes that less severe isolated incidents which would not themselves rise to the level of retaliation may, when taken together as part of "the overall scenario," evidence retaliatory animus, and one severe incident may be enough to create a hostile work environment. Id. at 450 (quoting Andrews v. City of Philadelphia , 895 F.2d 1469, 1484 (3d Cir. 1990) ); see Castleberry v. STI Grp. , 863 F.3d 259, 264 (3d Cir. 2017).

In 1972, Congress extended Title VII’s protections to federal employees in § 2000e-16(a), which provides:

All personnel actions affecting [federal] employees or applicants for [federal] employment ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, sec. 11, § 717(a), 86 Stat. 103, 111 (codified as amended at 42 U.S.C. § 2000e-16(a) ). "In general, it may be said that the substantive anti-discrimination...