Jeffrey Kengerski v. Orlando Harper ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1307
_____________
JEFFREY KENGERSKI,
Appellant
v.
ORLANDO HARPER; COUNTY OF ALLEGHENY
On Appeal from the United States
District Court for the Western District of Pennsylvania
(D.C. Civil Action No. 2-17-cv-01048)
District Judge: Honorable J. Nicholas Ranjan
Argued on December 15, 2020
Before: AMBRO, BIBAS and ROTH, Circuit Judges
(Opinion filed July 29, 2021)
1
Margaret S. Coleman (Argued)
Law Offices of Timothy P. O’Brien
535 Smithfield Street
Suite 1025
Pittsburgh, PA 15222
Counsel for Appellant
Andrew F. Szefi
Virginia Spencer Scott (Argued)
Frances M. Liebenguth (Argued)
Allegheny County Law Department
300 Fort Pitt Commons
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Counsel for Appellee
Sharon Fast Gustafson
Jennifer S. Goldstein
Elizabeth E. Theran
James M. Tucker
Equal Employment Opportunity Commission
Office of General Counsel
131 M St. NE, Rm. 5NW10P
Washington, D.C. 20507
Eric. S. Dreiband
Alexander V. Maugeri
Katherine E. Lamm (Argued)
U.S. Department of Justice
Civil Rights Division
Appellate Section
2
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
Bonnie I. Robin-Vergeer
U.S. Department of Justice
Appellant Section
MJB 3718
950 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Amicus Appellant
United States of America
Samuel J. Cordes
Rothman Gordon, P.C.
310 Grant Street
Third Floor, Grant Building
Pittsburgh, PA 15219
Counsel for Amicus Appellants
The Western Pennsylvania Employment
Lawyers Association, National Employment
Lawyers Association Eastern Pennsylvania
OPINION OF THE COURT
AMBRO, Circuit Judge
Jeffrey Kengerski, a Captain at the Allegheny County
Jail, made a written complaint to the jail Warden alleging that
3
a colleague had called his biracial grand-niece a “monkey” and
then sent him a series of text messages with racially offensive
comments about his coworkers. Seven months later,
Kengerski was fired. He contends the County fired him in
retaliation for reporting his colleague’s behavior and sued the
County under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a). The District Court granted the County’s
motion for summary judgment, holding that Kengerski, who is
white, could not maintain a claim for Title VII retaliation.
We disagree. Title VII protects all employees from
retaliation when they reasonably believe that behavior at their
work violates the statute and they make a good-faith complaint.
As relevant here, harassment against an employee because he
associates with a person of another race, such as a family
member, may violate Title VII by creating a hostile work
environment. Because a reasonable person could believe that
the Allegheny County Jail was a hostile work environment for
Kengerski, we vacate the District Court’s grant of summary
judgment.
This does not mean that Kengerski will ultimately
succeed on his retaliation claim, or even that it must survive
summary judgment on remand. The County claims that it fired
him for an unrelated reason that is unquestionably serious:
mishandling a sexual harassment claim. We therefore remand
to the District Court to consider whether Kengerski has
sufficiently shown that he was fired because of his Title VII
complaint.
4
I. Background
In April 2015, Kengerski submitted a written complaint
to Orlando Harper, Warden of the Allegheny County Jail. This
complaint was against Robyn McCall, a white female
employee at the jail who had been promoted to Major in
December 2014. In his complaint, Kengerski detailed an event
from over a year before (early in 2014) where he was
discussing his grand-niece Jaylynn in the presence of then-
Captain McCall and other officers. Kengerski told them he
was preparing for the possibility he and his wife would take
Jaylynn under their care because her mother was unable to
maintain her parental responsibilities. McCall then
purportedly interjected: “[W]hat kind of name is Jaylynn? Is
she black?” J.A. at 236. After learning that Jaylynn was
biracial, McCall allegedly responded that Kengerski “will be
that guy in the store with a little monkey on his hip like Sam
Pastor [another jail employee with a biracial child].” Id.
Kengerski “asked her not to speak like that about [his]
situation” and then left the room. Id.
Kengerski’s complaint also mentioned and attached
racially offensive text messages that McCall sent to him.1 The
District Court reviewed these messages and concluded that
[t]hey were sent between February and June
2014 and depict unflattering photographs of
1
The parties at times suggest that these text messages may
have been sent in a group chat that involved Kengerski,
McCall, and others, though they do so only by reference to
each others’ briefs and without record citation. The District
Court did not make a finding of fact on this issue. Whether
5
African-Americans and Asians, often repeating
offensive stereotypes. For instance, several of
the photographs depict overweight African-
American women, and one of the photographs
depicts an Asian woman with enlarged teeth.
Some of the photographs have captions
comparing them to African-American and Asian
employees at the jail.
Kengerski v. Allegheny Cnty., 435 F. Supp. 3d 671, 674 (W.D.
Pa. 2020). After reporting McCall’s comment and text
messages, Kengerski’s complaint asserts that he has “been
harassed” and “feel[s] [he is] in a hostile environment and will
be disciplined, harassed and possibly ridiculed by Major
McCall on any occasion.” J.A. at 236. Kengerski then
concluded his complaint by detailing other managerial (but not
explicitly racial) harassment he alleges suffering caused by
McCall, including punitive assignment to the overnight shift.
The Warden subsequently referred Kengerski’s
complaint to the County law department. McCall was placed
on administrative leave in May 2015 and resigned three months
later. Kengerski claims that McCall was forced to resign
because of his complaint. Following McCall’s resignation,
Kengerski reported several events he considered “retaliation”
from other officers. J.A. at 394.
In November 2015, seven months after his complaint
and three months after McCall’s resignation, the County
terminated Kengerski. It claims this was after he mishandled
these texts were sent in a group chat or directly to Kengerski
alone would not alter our conclusion in this case.
6
a sexual harassment complaint, including allegations that he
told two subordinate officers to lie on their reports during the
investigation. In this connection, the County asserts that
Warden Harper stated Kengerski’s conduct was “more
egregious than anything [the Warden had] seen . . . [i]n [his]
27 years of being a correctional professional.” J.A. at 959.
Kengerski challenges this reason as “pretextual,” as the true
motivation was retribution for reporting McCall and causing
her resignation. J.A. at 1210.
In June 2017, the Equal Opportunity Employment
Commission (EEOC) closed an investigation into Kengerski’s
termination and issued a right-to-sue letter. Kengerski filed
suit two months later against Warden Harper and the jail. The
initial complaint included claims for violation of due process,
race and sex discrimination, and retaliation. An amended
complaint filed in February 2018 continued to focus on race
discrimination and associated retaliation under state, federal,
and constitutional law, and also alleged retaliation for Family
and Medical Leave Act complaints. After amendments to the
pleadings and rulings on subsequent motions, the only
remaining claim was Title VII retaliation against the County.
Kengerski, 435 F. Supp. 3d at 675. The District Court granted
the County’s motion for summary judgment, holding that
7
Kengerski’s retaliation claim failed as a matter of law. Id. at
674. He appeals to us.
II. Discussion2
Title VII makes it unlawful for an employer to retaliate
against an employee “because he has opposed any practice
made an unlawful employment practice by this subchapter . . .
.” 42 U.S.C. § 2000e-3(a). To survive summary judgment on
a retaliation claim, a plaintiff must first make out a prima facie
case. Moore v. City of Philadelphia, 461 F.3d 331, 340 (3d
Cir. 2006).3 This means that he must: “tender evidence that:
‘(1) []he engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against [him];
and (3) there was a causal connection between [his]
participation in the protected activity and the adverse
employment action.’” Id. at 340-41 (quoting Nelson v. Upsala
Coll., 51 F.3d 383, 386 (3d Cir. 1995)).
2
The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. The District
Court had separate grounds for jurisdiction over a variety of
other claims in the initial complaint. Kengerski only appeals
the dismissal of his Title VII retaliation claim.
3
Under the McDonnell Douglas burden-shifting framework,
after a plaintiff makes out a prima facie case, the burden of
production shifts to the employer to provide a legitimate, non-
retaliatory reason for its action against the plaintiff, and then
the plaintiff may prevail at summary judgment only if he has
evidence that the employer’s response is merely a pretext.
Moore, 461 F.3d at 342; see generally McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
8
Here, Kengerski contends that he meets all three
elements for a prima facie case because (1) his complaint about
McCall was protected conduct, and (2) he was fired (3) because
of his complaint. Our review on appeal is plenary, which
means we review each element anew. Id. at 340. We conclude
that the District Court erred in granting summary judgment
against Kengerski solely on the first element of the prima facie
case. We need not address the second element, as the County
concedes it is satisfied by Kengerski’s termination. And
because the District Court has yet to decide the third element,
on remand it may consider causation in the first instance.
A. Kengerski Survives Summary Judgment on the
First Element of His Prima Facie Case Because a
Reasonable Person Could Believe McCall’s
Behavior Violated Title VII.
To satisfy the first element of his prima facie case,
Kengerski must show that he held “an objectively reasonable
belief, in good faith, that the activity [he opposed] is unlawful
under Title VII.” Moore, 461 F.3d at 341. Kengerski opposed
McCall’s behavior by sending a written letter to the jail’s
warden that said he “would like to make a complaint about
Major McCall with regards to harassment and inappropriate
racial text messages.” App. at 236.4 The question we ask is
4
We are not persuaded by the County’s argument that
Kengerski did not sufficiently “oppose” McCall’s racial
comments because his letter was ambiguous or contained
references to McCall’s managerial failings unrelated to racial
discrimination. We have resoundingly rejected arguments that
additional non-discrimination claims in a complaint can
“obscure” our analysis of Title VII issues. Moore, 461 F.3d at
343 n.4.
9
therefore a simple one: Could a reasonable person, standing in
Kengerski’s shoes, have believed McCall’s behavior violated
Title VII?5
Workplace behavior may violate Title VII in a variety
of ways. As relevant here, the Title may be violated when an
employee’s racist behavior creates a hostile work environment
for his colleagues.6 Still, we must be careful to distinguish
between a hostile-work-environment claim (which Kengerski
is not bringing) and his retaliation claim. To succeed on the
former, a plaintiff needs to show that the environment was
actually hostile, i.e., that the offensive conduct at work was
either “severe” or “pervasive.” See Castleberry v. STI Grp.,
863 F.3d 259, 264 (3d Cir. 2017). But for a retaliation claim a
plaintiff need not show that his working environment in
hindsight was actually hostile, only that he held an objectively
reasonable belief that it was. The difference between these two
5
We leave out good faith here, as the District Court did not
discuss that aspect of the first element, and the County does not
meaningfully contest it on appeal. We take no position on this
issue.
6
Kengerski argues that he was opposing, in addition to
McCall’s behavior toward him, McCall’s behavior directed at
his coworkers of other races. In general, white plaintiffs are
protected from retaliation when they blow the whistle on
conduct “they reasonably perceived . . . as violative of Title
VII” because it was hostile for their black coworkers. Moore,
461 F.3d at 342. But because Kengerski’s reasonable belief
that his own work environment was hostile satisfies the first
element of his prima facie case, we need not consider whether
his letter also sufficiently opposed a hostile work environment
for his coworkers.
10
standards reflects a part of Title VII’s purpose to “encourage
employees to report harassing conduct before it becomes
severe or pervasive.” Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 764 (1998); see also Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006) (explaining that the
standard for an adverse employment action differs between
retaliation claims and other discrimination claims because
“differences in the purpose of the two provisions . . . justify
this difference of interpretation”).
Still, a retaliation claim must be tied to Title VII. An
employee must have complained about the type of conduct that
is generally protected by that Title, such as discrimination on
the basis of race. This includes discrimination because of an
employee’s association with a person of another race (such as
a family member). But a complaint about workplace behavior
that is so minor and isolated that it could not “remotely be
considered ‘extremely serious’”—that is not within some
striking distance of an actual hostile work environment—is not
protected because “[n]o reasonable person could have believed
that [it] . . . violated Title VII’s standard.” Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam). Here,
viewing McCall’s comment and her text messages together, we
conclude that a reasonable person could have believed the jail
was a hostile work environment for Kengerski, and thus
violated Title VII.
1. Employees Are Protected from Retaliation When
They Reasonably Believe Their Work Environment
Is Hostile Because of Their Association with Others.
Amici (the United States and two Pennsylvania-based
affiliates of the National Employment Lawyers Association)
ask us to hold that an employee may be protected from
11
retaliation when he reports a work environment that he
reasonably believes is hostile to him because of his association
with persons of another race. We ordinarily would not
consider this argument, which was not raised explicitly by
Kengerski in his opening brief, because an “amicus may not
frame the issues for appeal.” DiBiase v. SmithKline Beecham
Corp., 48 F.3d 719, 731 (3d Cir. 1995) (quoting Swan v.
Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993)). Nonetheless, we
are convinced that “substantial public interests” justify
departing from this general rule because this issue could affect
the behavior of countless employers and employees in
situations ranging from interracial marriage to intra-office
friendships. Id. Nor do we believe that the County will be
“unduly prejudiced” by our consideration of this argument,
which permeates the record in this case. County’s Br. at 16
n.8, 39. The District Court considered and discussed the theory
at length in its opinion, Kengerski’s opening brief raised the
general substance, if not the form, of the issue by emphasizing
the comments McCall made to him based on his association
with his biracial grand-niece, and his reply brief “raise[d] the
issue by reference to the amicus brief.” Tyler v. City of
Manhattan, 118 F.3d 1400, 1404 (10th Cir. 1997); see
Kengerski Reply Br. at 18. The County could—and indeed
did—argue in its response brief against the associational
discrimination arguments made by Amici. Thus it was not
prejudiced procedurally. See United States v. Boggi, 74 F.3d
470, 478 (3d Cir. 1996) (deviating from the general rule that
an argument may not be raised for the first time in a reply brief
where the other party “has had an opportunity to respond to the
arguments raised in [the] reply brief . . . [, and the] argument
raises a question which we feel requires clarification in this
circuit”).
12
On the merits, we agree with our sister circuits that
associational discrimination is well grounded in the text of
Title VII. In a practical sense, the name is a misnomer because,
when you discriminate against an employee because of his
association with someone of a different race, you are in effect
discriminating against him “because of [his own] race” in
violation of Title VII. 42 U.S.C. § 2000e-2(a)(1). See, e.g.,
Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008)
(concluding that “where an employee is subjected to adverse
action because an employer disapproves of interracial
association, the employee suffers discrimination because of the
employee’s own race”); Tetro v. Elliott Popham Pontiac,
Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994
(6th Cir. 1999) (“A white employee who is discharged because
his child is biracial is discriminated against on the basis of his
race, even though the root animus for the discrimination is a
prejudice against the biracial child.”); Deffenbaugh-Williams
v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998)
(concluding that “a reasonable juror could find that
Deffenbaugh was discriminated against because of her race
(white), if that discrimination was premised on the fact that
she, a white person, had a relationship with a black person”),
vacated in part on other grounds, 182 F.3d 333 (5th Cir. 1999);
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892
(11th Cir. 1986) (concluding that “[w]here a plaintiff claims
discrimination based upon an interracial marriage or
association, he alleges, by definition, that he has been
discriminated against because of his race,” and noting
favorably that “the EEOC, which Congress charged with
interpreting, administering, and enforcing Title VII, has
consistently held that an employer who takes adverse action
against an employee or a potential employee because of an
interracial association violates Title VII”) (emphasis omitted).
13
This theory of discrimination is not limited to close or
substantial relationships. While “one might expect the degree
of an association to correlate with the likelihood of severe or
pervasive discrimination on the basis of that association,” the
“degree of association is irrelevant” to whether a plaintiff “is
eligible for the protections of Title VII in the first place.”
Barrett v. Whirlpool Corp., 556 F.3d 502, 513 (6th Cir. 2009);
accord Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 884
(7th Cir. 1998). Employees thus may not be discriminated
against because of their interracial relationships with distant
relatives such as a grand-niece.
2. A Reasonable Person Could Believe That the Jail
Was a Hostile Work Environment for Kengerski.
Here, McCall’s behavior was clear and consistent: she
expressed racial animosity toward jail employees who either
were black or associated with black persons, such as Sam
Pastor (who raised a biracial child) and Kengerski (who was
considering taking in his biracial grand-niece). Therefore, we
simply ask whether the totality of McCall’s conduct is serious
enough that a reasonable person could conclude that
Kengerski’s work environment was hostile.
We first pause to make an important clarification about
McCall’s standing in the jail at the time of the relevant conduct.
The parties—including Kengerski—state that at the time of
McCall’s comments she had not yet been promoted to Major,
seemingly implying that at the time of this conduct she was
Kengerski’s coworker. But reading the record in the light most
favorable to Kengerski compels a conclusion that McCall was
Kengerski’s superior at the jail at the time of her offensive
conduct, because McCall was a Captain and Kengerski was a
14
Sergeant. See J.A. at 83 (a County personnel file showing an
effective date of Kengerski’s promotion from Sergeant to
Captain in September 2014); id. at 289 (the County’s statement
of facts acknowledging that “Kengerski was promoted from
the position of sergeant to the position of captain on September
24, 2014”); id. at 236 (Kengerski’s complaint alleging the
comment made by “Captain McCall” occurred “over a year”
before April 2015 and in any case prior to the text messages);
Kengerski, 435 F. Supp. 3d at 674 (finding that the relevant
text messages were sent between February and June 2014).
The County itself acknowledges this distinction in rank is
significant: “[S]ergeants and corrections officers [a]re
subordinate to [captains],” who are “part of management.”
County’s Br. at 4; see also J.A. at 290 (the County’s statement
of facts acknowledging that “sergeants are . . . not a part of
management,” but “Captains and above are part of the Jail’s
management team”). This dispels framing this case as
involving harassment by a mere coworker.7
While the County incredibly attempts to argue that the
comment about Kengerski’s grand-niece (and another jail
employee’s child) being monkeys was merely a harmless
“zoomorphism,” it is clear that this term was used in a racist
manner. County’s Br. at 17; see Kengerski, 435 F. Supp. 3d at
679 (finding that this comment was an “offhand, yet offensive,
remark”). As the Fourth Circuit has recognized, “describing
an African-American as a ‘monkey’ . . . goes far beyond the
merely unflattering; it is degrading and humiliating in the
7
We express no opinion on whether or the extent to which we
would analyze the reasonableness of Kengerski’s complaint
differently if the comment came from a coworker of equal
rank.
15
extreme.” Boyer-Liberto, 786 F.3d at 280 (citation omitted).
Indeed, that Court reasoned that the term “porch monkey” was
“about as odious” as the use of the “n-word.” Id.
Consequently, it concluded that even two uses of that term,
viewed as a single incident of harassment, could be found by a
reasonable jury to be “severe enough to engender a hostile
work environment.” Id. When faced with a single use of a
racial epithet by a supervisor, we rejected the District Court’s
conclusion that “it was unreasonable for Plaintiffs to believe
that a single incident of a discriminatory remark . . . could
amount to unlawful activity.” Castleberry, 863 F.3d at 267;
accord Rite Way, 819 F.3d at 243 (“[Retaliation] claims
grounded in isolated comments are not always doomed to
summary judgment.”).
Still, we need not decide whether this isolated comment,
standing alone, is enough to support a reasonable belief of a
Title VII violation because McCall subsequently made
numerous additional racist comments in text messages over a
period of several months. Though these comments did not
directly refer to Kengerski or his grand-niece, the texts started
coming “[n]ot long after” Kengerski stood up to McCall for
making a racist comment about his grand-niece. Kengerski
thus could reasonably believe that McCall’s texts—
particularly those with racist innuendos about black persons—
were at least in part directed at him. J.A. at 236; see generally
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir.
2000) (“In addressing a motion for summary judgment, the
facts must be viewed in the light most favorable to [the non-
moving party], and []he is entitled to every reasonable
inference that can be drawn from the record.”). At a minimum,
the comments made about other jail employees, at least some
of whom Kengerski alleges were also McCall’s subordinates,
16
could have bolstered Kengerski’s reasonable belief that
McCall’s conduct toward him was grounded in racial
animosity and created a hostile work environment. See Caver
v. City of Trenton, 420 F.3d 243, 263–64 (3d Cir. 2005)
(although a hostile-work-environment claim may not be
maintained “solely by pointing to comments that were directed
at other individuals,” “evidence of those comments may be
considered in determining whether facially neutral conduct . . .
was actually based on [the plaintiff’s] race”); Moore, 461 F.3d
at 345 n.6 (explaining that “racial epithets of which the targets
were not aware may well form the basis for a reasonable belief
that discrimination has occurred or was occurring”).
We express no view whether McCall’s conduct would
support a hostile-work-environment claim if Kengerski were to
bring one. But employees “are not required to collect enough
evidence of discrimination to put the discrimination case
before a jury before they blow the whistle.” Moore, 461 F.3d
at 345. And we will not saddle the reasonable employee with
all of the doctrinal twists and turns that a civil rights lawyer
would need to navigate. See E.E.O.C. v. Rite Way Serv., Inc.,
819 F.3d 235, 242 (5th Cir. 2016) (asking whether “an
employee . . . not instructed on Title VII law[,] as a jury would
be, [could] reasonably believe that she was providing
information about a Title VII violation”); Boyer–Liberto v.
Fontainebleau Corp., 786 F.3d 264, 290 (4th Cir. 2015) (en
banc) (Wilkinson, J., concurring in part and dissenting in part)
(“An employee is not an expert in hostile work environment
law.”); Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1019
(D.C. Cir. 1981) (holding that “a layperson should not be
burdened with the ‘sometimes impossible task’ of correctly
anticipating how a given court will interpret a particular
statute”). McCall’s conduct was serious enough that a
17
reasonable employee in Kengerski’s shoes could have believed
his work environment was hostile.8 We thus vacate the District
Court’s grant of summary judgment relying solely on the first
element needed for a prima facie case.
B. The District Court Should Address Causation in
the First Instance.
The County asks us to affirm the grant of summary
judgment on the alternate ground that Kengerski has not shown
a prima facie case of causation, the third element of a
retaliation claim. The District Court discussed causation only
in a footnote, noting that
[b]ecause the Court finds that Mr. Kengerski
cannot demonstrate protected activity, it need not
address the issue of causation. That said, there
was a seven-month gap between the complaint
and termination. Usually, courts will dismiss
retaliation claims as a matter of law where there
8
In light of this conclusion, we need not consider whether
Kengerski’s claim may stand solely on the ground that the
Warden perceived him as having engaged in protected activity.
See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 571 (3d Cir.
2002). Nor need we decide whether a plaintiff may maintain a
claim simply because he “reasonably believes that a hostile
work environment is in progress.” Boyer-Liberto, 786 F.3d at
284; see also EEOC Enforcement Guidance on Retaliation and
Related Issues at II(A)(2)(c) (instructing that “it is protected
opposition if the employee complains about offensive conduct
that, if repeated often enough, would result in an actionable
hostile work environment”).
18
is such a long gap. See LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d
Cir. 2007) (“Although there is no bright line rule
as to what constitutes unduly suggestive
temporal proximity, a gap of three months
between the protected activity and the adverse
action, without more, cannot create an inference
of causation and defeat summary judgment.”);
Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.
2007) (holding five-month time period between
complaint and first adverse action insufficient by
itself to support inference of causation).
Kengerski, 435 F. Supp. 3d at 676 n.1. Because the District
Court did not expressly rule on the causation issue, we “decline
to consider [it,] . . . choosing instead to allow that court to
consider [it] in the first instance.” Forestal Guarani S.A. v.
Daros Int’l, Inc., 613 F.3d 395, 401 (3d Cir. 2010).9 Of course,
9
We express no view on whether Kengerski can present a
prima facie case of causation on remand, though we note that
the District Court’s singular focus on temporal proximity does
not necessarily answer whether he has provided “sufficient
[evidence] to raise the inference that [his] protected activity
was the likely reason for the adverse [employment] action.”
Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 259
(3d Cir. 2017) (emphasis in original) (quotation and citation
omitted). While a very long delay may “suggest[], by itself, no
causality at all,” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 274 (2001) (per curiam) (internal citations omitted), “[i]n
the absence of . . . temporal proximity, we consider the
circumstances as a whole, including any intervening
antagonism by the employer, inconsistencies in the reasons the
19
even if Kengerski establishes a prima facie case of retaliation,
his claim does not necessarily survive summary judgment, as
the Court may then determine whether the County’s reason for
Kengerski’s firing (mishandling a sexual harassment claim) is
legitimate or pretextual. See Moore, 461 F.3d at 342; Martinez
v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021).10
* * * * *
The crux of a retaliation claim is reasonableness:
employees are protected from retaliation whenever they make
good-faith complaints about conduct in their workplace they
reasonably believe violates Title VII. Here, a reasonable
employee could believe that McCall created a hostile work
environment, in violation of Title VII, by calling Kengerski’s
biracial relative a “monkey” and then sending Kengerski a
series of text messages with offensive racial stereotypes. We
therefore remand to the District Court to consider whether the
County fired him because of his complaint.
employer gives for its adverse action, and any other evidence
suggesting that the employer had a retaliatory animus when
taking the adverse action,” Daniels v. Sch. Dist. of Phila., 776
F.3d 181, 196 (3d Cir. 2015).
10
We deny the County’s motion to strike these portions of
Kengerski’s reply brief as well as its request to strike
discussion of associational discrimination.
20