Chrysoula Komis v. Secretary United States Depart ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-3813
_______________
CHRYSOULA J. KOMIS,
Appellant
v.
SECRETARY OF THE UNITED STATES DEPARTMENT
OF LABOR
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:11-cv-06393)
Honorable Timothy R. Rice, U.S. Magistrate Judge
_______________
Argued: October 28, 2015
Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit
Judges.
(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
_______________
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.
2
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 (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
1
In the 1990s, Komis filed EEO complaints for sex
discrimination and for unfair denial of the opportunity to work
remotely, all of which were resolved in Equal Employment
Opportunity Commission (EEOC) settlements.
3
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
2
The District Court had jurisdiction under 28 U.S.C. § 1331and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction under 28
U.S.C. § 1291. “[O]ur review is plenary when the issue is
whether the instructions misstated the law.” Armstrong v.
Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245 (3d Cir.
2006).
4
II.
The parties dispute whether the Supreme Court’s
decision in Burlington Northern v. White, 548 U.S. 53 (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, 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
5
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
(1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993), and Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 78 (1998)); see also Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115–16 (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
6
workplace.” 548 U.S. at 63. 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 (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(quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270
(2001), and Harris, 510 U.S. at 21 (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.
7
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 law embraced in Title VII was
carried over and applied to the Federal Government.” Morton
v. Mancari, 417 U.S. 535, 547 (1974) (citing H.R. Rep. No.
92-238, at 22 (1971), as reprinted in 1972 U.S.C.C.A.N. 2137,
2157). “Congress intended to provide federal employees with
the full rights available in the courts as are granted to
individuals in the private sector under Title VII.” Loeffler v.
Frank, 486 U.S. 549, 559 (1988) (internal quotation marks and
citations omitted).
8
III.
Below, we first clarify that federal employees may bring
claims for retaliation under Title VII even though the federal-
sector provision does not explicitly reference retaliation. While
the government then asserts federal-sector retaliation claims
are, unlike their private-sector counterparts, limited to
challenging “personnel actions,” we conclude this case does
not give occasion to address that contention.
A.
The government does not contest and in fact accepts our
longstanding view—shared by every circuit to consider the
question—that federal employees may bring claims of
retaliation under Title VII. See, e.g., Andreoli v. Gates, 482
F.3d 641, 649–50 (3d Cir. 2007); Jensen, 435 F.3d at 449,
abrogated on other grounds by Burlington N., 548 U.S. at 53. 3
Although the language of § 2000e-16(a) differs from the
language of the private-sector antidiscrimination and
antiretaliation provisions, many courts have consistently
interpreted § 2000e-16(a) “to give federal employees the same
rights as private employees.” Porter v. Adams, 639 F.2d 273,
277–78 (5th Cir. 1981); see also White v. Gen. Servs. Admin.,
652 F.2d 913, 917 (9th Cir. 1981); Hackley v. Roudebush, 520
3
Accord Blomker v. Jewell, 831 F.3d 1051, 1054 (8th Cir.
2016); Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011);
DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008); Rochon v.
Gonzales, 438 F.3d 1211, 1215 (D.C. Cir. 2006); Ray v.
Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000); Hale v.
Marsh, 808 F.2d 616, 619 (7th Cir. 1986).
9
F.2d 108, 142 n.138 (D.C. Cir. 1975); Parks v. Dunlop, 517
F.2d 785, 787 (5th Cir. 1975) (per curiam).
Were there any doubt that federal employees may bring
retaliation claims under Title VII, the Supreme Court’s
decision in Gomez-Perez v. Potter, 553 U.S. 474 (2008),
dispels it. In Gomez-Perez, the Supreme Court addressed
whether the federal-sector provision added in 1974 to the Age
Discrimination in Employment Act of 1967 (ADEA) prohibits
retaliation by the federal government. See 553 U.S. at 487.
Significantly, the ADEA was “patterned directly after Title
VII’s federal-sector discrimination ban,” id. (internal quotation
marks and citation omitted), and the text of the ADEA and Title
VII federal-sector provisions is nearly identical. Compare
ADEA, 29 U.S.C. § 633a(a) (“All personnel actions affecting
employees or applicants for employment who are at least 40
years of age . . . shall be made free from any discrimination
based on age.” (emphasis added)), with Title VII, 42 U.S.C.
§ 2000e-16(a) (“All personnel actions affecting employees or
applicants for employment . . . shall be made free from any
discrimination based on race, color, religion, sex, or national
origin.” (emphasis added)).
In Gomez-Perez, the government argued § 633a(a) did
not encompass retaliation claims because, unlike the ADEA’s
private-sector provisions, the federal-sector provision does not
specifically reference retaliation. See 553 U.S. at 486. That
omission, the government contended, demonstrated Congress
intended to prohibit only discrimination claims—not
retaliation claims—in the federal sector. See id. The Supreme
Court rejected the government’s narrow reading, instead
concluding the federal-sector provision confers on federal
10
employees the right to bring retaliation claims. See id. at 491. 4
Because the text of the ADEA and Title VII federal-sector
provisions is nearly identical, Gomez-Perez supports our
conclusion that Title VII also bars retaliation in the federal
sector.
Based on our previous recognition of such claims and
the Supreme Court’s holding in Gomez-Perez, we reaffirm that
federal employees may bring retaliation claims under Title VII.
Parity between private-sector and federal-sector retaliation
claims ensures “[a]ll personnel actions affecting [federal]
employees . . . shall be made free from any discrimination,” 42
U.S.C. § 2000e-16(a). In continuing to recognize federal-
sector retaliation claims following Gomez-Perez, we join many
of our sister circuits. See Coleman v. Duke, 867 F.3d 204, 215
(D.C. Cir. 2017); Cabral v. Brennan, 853 F.3d 763, 767 (5th
Cir. 2017); Green v. Donahoe, 760 F.3d 1135, 1146 (10th Cir.
2014), vacated on other grounds sub nom. Green v. Brennan,
4
In construing the ADEA’s federal-sector provision, the Court
rejected arguments that the provision, as a waiver of sovereign
immunity, must be strictly construed in favor of the
government and that federal employees do not need the same
protection as private employees against retaliation because
they benefit from the protections under the Civil Service
Reform Act (CSRA). Gomez-Perez, 553 U.S. at 489–91; cf.
id. at 503 (Roberts, C.J., dissenting) (“[T]he view that
Congress intended to treat retaliation for age discrimination
complaints as a problem to be dealt with primarily through
administrative procedures, rather than through the judicial
process in the first instance, is confirmed by Congress’s
passage of the Civil Service Reform Act of 1978 (CSRA), 92
Stat. 1111.”).
11
136 S. Ct. 1769 (2016); AuBuchon v. Geithner, 743 F.3d 638,
641–42 (8th Cir. 2014); Gowski v. Peake, 682 F.3d 1299, 1312
(11th Cir. 2012) (per curiam); Morales-Vallellanes v. Potter,
605 F.3d 27, 35–36 (1st Cir. 2010); Hunter v. Sec’y of U.S.
Army, 565 F.3d 986, 996 (6th Cir. 2009).
B.
The government accepts that federal employees may
bring retaliation claims, see Appellee’s Br. 16, but contends the
Burlington Northern standard used for private-sector
retaliation claims should not apply to retaliation claims in the
federal sector. In Burlington Northern, the Court observed the
text of the private-sector retaliation provision did not, unlike
the private-sector discrimination provision, limit retaliation
claims “to actions that affect employment or alter the
conditions of the workplace.” 548 U.S. at 62. It accordingly
determined the antiretaliation provision protects plaintiffs from
conduct a “reasonable employee would have found . . .
materially adverse,” employment-related or otherwise. Id. at
68. According to the government, that material adversity
standard is inapplicable to Komis because Title VII’s federal-
sector provision protects only against discrimination or
retaliation as to “[a]ll personnel actions affecting employees,”
42 U.S.C. § 2000e-16(a). Although offering more than one
definition of “personnel actions,” the government principally
urges that we interpret “personnel actions” to mean “changes
in the terms and conditions of employment,” i.e., the
requirement for discrimination claims. 5 Doing so would
5
In its brief, the government refers to multiple possible
definitions of “personnel action,” some of which are materially
different. See Appellee’s Br. at 21 (suggesting a personnel
12
negate for federal employees Burlington Northern’s holding
“that the antiretaliation provision, unlike the substantive
action is an action “relating to the terms, conditions, or
privileges of employment”); id. (citing Page v. Bolger, 645
F.2d 227, 233 (4th Cir. 1981) (en banc) (holding “personnel
actions” contemplate “ultimate employment decisions such as
hiring, granting leave, discharging, promoting, and
compensating”)); id. (citing 5 U.S.C. § 2302(a)(2)(A)(xii)
(defining “personnel action” in the civil service context to
include any “significant change in duties, responsibilities, or
working conditions”)).
But in Page, the Fourth Circuit drew its definition of a
“personnel action” for a discrimination claim from the actions
covered by § 2000e-2(a). 645 F.2d at 233 (“Disparate
treatment theory as it has emerged in application of this and
comparable provisions of Title VII, most notably § 703(a)(1),
42 U.S.C. § 2000e-2(a)(1), has consistently focused on the
question whether there has been discrimination in what could
be characterized as ultimate employment decisions such as
hiring, granting leave, discharging, promoting, and
compensating. This is the general level of decision we think
contemplated by the term ‘personnel actions’ in
[§ 2000e-16].”). Because Page involved discrimination—not
retaliation—claims, it is inapposite here.
As to the government’s contention that we should adopt the
definition of “personnel action” contained in 5 U.S.C.
§ 2302(a)(2)(A), the text of § 2302(a)(2)(A) explicitly limits
that definition to the section, and so we do not believe its reach
extends to Title VII’s federal-sector provision at 42 U.S.C.
§ 2000e-16(a).
13
provision, is not limited to discriminatory actions that affect
the terms and conditions of employment,” 548 U.S. at 64.
Komis’s retaliatory hostile work environment claim
does not require us to resolve all the parameters of the phrase
“personnel action” in § 2000e-16(a), nor does it raise the
question whether discrete retaliation claims that do not involve
“personnel actions” are cognizable in the federal sector. 6 As
made clear by its plain terms, a retaliatory hostile work
environment affects the conditions of the workplace. See
Vance v. Ball State Univ., 570 U.S. 421, 427 (2013). And as
noted, all the hostile acts Komis alleges as part of that hostile
environment are personnel actions potentially altering the
terms and conditions of her employment. To that extent, then,
we can recognize that the acts alleged here are personnel
actions without deciding in this case whether the “personnel
action” language in § 2000e-16(a) might differentiate federal-
sector from private-sector retaliation claims. 7
6
We note the government has unsuccessfully advanced this
argument before. See, e.g., Rochon, 438 F.3d at 1216–19
(“[W]e must consider whether . . . the general ban on retaliation
in § 2000e-3(a) is limited by the requirement in § 2000e-16(a)
that ‘[a]ll [government] personnel actions’ be made free from
discrimination. We do not believe the prohibition is so
qualified.”); see also Hale, 808 F.2d at 619 (analyzing a federal
employee’s Title VII retaliation claim without conducting a
separate “personnel action” inquiry); Ayon v. Sampson, 547
F.2d 446, 449 (9th Cir. 1976) (similar).
7
The government also raises this argument for the first time on
appeal, and our general practice is not to consider arguments
14
IV.
Given the legal background discussed above, Komis’s
appeal comes down to whether the following jury instructions
were erroneous:
OSHA is liable if Ms. Komis proves all of
the following elements by a preponderance of the
evidence.
First, Ms. Komis was subjected to
retaliation or harassment by her co-workers,
supervisors, and/or managers.
...
Third, the co-workers[’], supervisors[’]
and/or managers[’] conduct was motivated by
the fact that Ms. Komis had complained of
discrimination or retaliation.
Fourth, the co-workers[’], supervisors[’]
and managers[’] conduct was so severe or
pervasive that a reasonable person in Ms.
Komis’[s] position would find her work
environment hostile or abusive.
...
Sixth, Ms. Komis suffered a materially
adverse action as a result of the hostile work
environment, meaning a reasonable worker
would have been dissuaded from making or
the parties failed to raise before the trial court. See Harris v.
City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).
15
supporting a charge of discrimination or
retaliation.
...
A hostile work environment exists under
the law only if there is extreme conduct
amounting to a material change in the terms and
conditions of employment . . . . [I]solated
incidents unless extremely serious will not
amount to a hostile work environment under law.
App’x 21–24 (emphasis added). The court also listed for the
jury several “factors” to “consider when determining and
deciding whether the hostile work environment existed,”
including the “total physical environment” of Komis’s
workplace, the “frequency of the offensive conduct,” the
“severity of the conduct,” and the “effect of the working
environment on Ms. Komis’[s] mental and emotional well-
being.” App’x 23.
Komis specifically contends the trial court’s instruction
that a retaliatory hostile work environment claim requires
proof of “conduct . . . so severe or pervasive that a reasonable
person in Ms. Komis’[s] position would find her work
environment hostile or abusive,” App’x 22, was erroneous
because Burlington Northern did away with the “severe or
pervasive” requirement for retaliation claims—including for a
retaliatory hostile work environment. Instead, she maintains,
the jury should have been instructed only on the material
adversity standard articulated in the sixth element of the court’s
instructions.
“When a jury instruction is erroneous, a new trial is
warranted unless such error is harmless.” Harvey v. Plains Tp.
16
Police Dep’t, 635 F.3d 606, 612 (3d Cir. 2011). In a civil case,
an error is harmless if “it is highly probable that the error did
not contribute to the judgment.” Id. (internal quotation marks
and citations omitted). Based on the full record, we are
confident that in this case “the jury would have reached the
same result had it been instructed according to” Komis’s
desired instruction. Murray v. United of Omaha Life Ins. Co.,
145 F.3d 143, 156–57 (3d Cir. 1998).
Komis’s claim turns on the difference between the
“severe or pervasive” standard and the “materially adverse”
standard. 8 As noted, we first applied the “severe or pervasive”
standard to retaliatory hostile work environment claims in the
private sector under Title VII in Jensen, where we explained
the relevant inquiry was: “[D]id the plaintiff suffer retaliatory
harassment severe or pervasive enough to ‘alter the conditions
of [her] employment and create an abusive working
8
Komis in fact focuses on the difference between the
“materially adverse” standard and a “severe and pervasive”
standard. Rather than “severe and pervasive,” however, the
correct standard would be “severe or pervasive”: “‘[S]everity’
and ‘pervasiveness’ are alternative possibilities: some
harassment may be severe enough to contaminate an
environment even if not pervasive; other, less objectionable,
conduct will contaminate the workplace only if it is pervasive,”
Castleberry, 863 F.3d at 264 (internal quotation and citation
omitted); see also Jensen, 435 F.3d at 449 n.3. The trial court
therefore appropriately instructed the jury to consider whether
Komis faced “severe or pervasive” retaliation in the form of a
hostile work environment. See App’x 22, Supplemental App’x
868 (emphasis added).
17
environment?’” 453 F.3d at 451 (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).
The Supreme Court then introduced the “materially
adverse” standard in Burlington Northern, a case involving a
private-sector claim of retaliation (but not raising any claim of
a retaliatory hostile work environment). That decision laid out
the difference in “scope” of discrimination and retaliation
claims. 548 U.S. at 67. The Court reasoned that “[t]he
[antidiscrimination] provision seeks to prevent injury to
individuals based on who they are, i.e., their status. The
antiretaliation provision seeks to prevent harm to individuals
based on what they do, i.e., their conduct.” Id. at 63. Because
“one cannot secure the second objective by focusing only upon
employer actions and harm that concern employment and the
workplace,” the “antiretaliation provision, unlike the
substantive [antidiscrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of
employment.” Id. at 63–64. The Court accordingly held a
plaintiff who asserts a discrete retaliation claim need show only
“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 (internal
quotation marks and citations omitted). We have applied
Burlington Northern’s standard to discrete retaliation claims in
the private sector, see Moore v. City of Philadelphia, 461 F.3d
331, 341 (3d. Cir. 2006), and some of our fellow circuits have
done so in federal-sector discrete retaliation cases, see, e.g.,
Lapka v. Chertoff, 517 F.3d 974, 985–86 (7th Cir. 2008);
Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C. Cir. 2007).
18
Komis seeks to apply that standard to her federal-sector
claim of a retaliatory hostile work environment. All of the
conduct that Komis alleges created a hostile work
environment—for example, changes in her job duties and
assignment to a different position—flows from “employment
and the workplace,” Burlington Northern, 548 U.S. 63. Komis
accordingly does not claim the instruction failed to account for
Burlington Northern’s recognition of conduct outside the
workplace. Instead, she contends the court set too high the level
of harm she had to prove in instructing the jury that a hostile
work environment required conduct severe or pervasive
enough to change the terms and conditions of her employment
rather than simply conduct that was materially adverse.
Whatever the room in magnitude of harm between
conduct severe or pervasive such that it affects the terms and
conditions of employment and materially adverse conduct that
would dissuade a reasonable worker from invoking her
antidiscrimination rights, Komis has not shown how it might
change the outcome in her case. 9 The “material adversity”
standard “separate[s] significant from trivial harms,”
9
We observe several Courts of Appeals continue to ask
whether the claimant’s workplace is permeated with conduct
severe or pervasive enough to change the conditions of the
claimant’s employment in reviewing Title VII retaliatory
hostile work environment cases after Burlington Northern. See
Flanagan v. Office of Chief Judge, 893 F.3d 372, 375 (7th Cir.
2018); Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir.
2018); Baird v. Gotbaum, 792 F.3d 166, 168–69, 171–72 (D.C.
Cir. 2015); Maldonado-Cátala v. Municipality of Naranjito,
876 F.3d 1, 10 (1st Cir. 2017); Gowski, 682 F.3d at 1311.
19
Burlington Northern, 548 U.S. at 68, and unquestionably
leaves in place a plaintiff’s burden to show the allegedly hostile
work environment was motivated by retaliatory animus, see
Jensen, 435 F.3d at 452 (“[W]hile we must consider the totality
of the circumstances, some circumstances do not affect our
analysis because they are not retaliatory.”). Komis does not
explain why the jury would have determined the harms alleged
by her sixty-some EEO claims taken together were not severe
or pervasive enough to effect the terms and conditions of her
work, yet were materially adverse enough to dissuade a
reasonable person from making a charge of discrimination.
The government further offers the compelling argument
that Komis failed at trial to offer facts establishing a retaliatory
hostile work environment because many of her claims lacked
a causal connection to protected conduct. See Moore, 461 F.3d
at 340–42. Komis, for instance, contends one of the incidents
creating a retaliatory hostile work environment was her
supervisor Russo’s decision to deny her request to work
regularly at home—but Komis had last filed an EEO claim in
1993, and offered no reason to think Russo’s decision to deny
that request in 2003 was made in retaliation for her decade-old
EEO claim. Given that no other employee in Komis’s office
was given permission to work regularly at home, the decision
not to give Komis such unique dispensation does not appear
materially adverse or even objectionable. In another example,
Komis alleged Russo unfairly disciplined her, but several of
those allegedly retaliatory incidents took place before Russo
knew Komis had filed EEO complaints, again undermining the
notion that the discipline was issued in retaliation for protected
conduct.
20
Moreover, Komis fails to rebut the government’s
legitimate, non-retaliatory explanations for the alleged
retaliatory conduct as required under the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Komis claims that as a result of her filing
discrimination complaints with the EEOC, her job duties were
changed and she was given the work of a clerk. She also claims
she was subjected to harsher punishment. The government
offered overwhelming evidence that (1) there were fewer
industrial hygiene assignments overall, (2) Komis’s Voluntary
Protection Program (VPP) duties made it difficult to schedule
Komis for such assignments, (3) OSHA’s focus shifted under
a new presidential administration, (4) her three suspensions
were proper disciplinary actions appropriate for Komis’s
infractions of direct insubordination and forwarding of internal
OSHA emails outside the agency, and (5) clerical duties were
actually part of her job description from the time she took the
position. Komis failed to offer any evidence rebutting these
justifications. On appeal, she offers hardly any fact-based
response at all to the government’s claim of harmless error. We
thus conclude that any error in the jury instruction was
harmless.
VI.
For the reasons provided, we will affirm the judgment
of the trial court.
21