CHRYSOULA J. KOMIS, Appellant
SECRETARY OF THE UNITED STATES DEPARTMENT OF LABOR
Argued: October 28, 2015
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
S. Scheffer [ARGUED] Law Offices of Mark S. Scheffer Counsel
Richard Mentzinger, Jr. [ARGUED] Mark J. Sherer Office of the
United States Attorney for the Eastern District of
Pennsylvania Counsel for Appellee
Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges.
OPINION OF THE COURT
SCIRICA, CIRCUIT JUDGE
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.
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.
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,
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.
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.
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
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.
"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 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).
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. 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 ...