Third Circuit: Federal Employees May Bring Suits for Retaliation Under Title VII
The U.S. Court of Appeals for the Third Circuit recently held that a federal employee may bring suit against the Secretary of Labor for retaliation under Title VII, but declined to decide on the limits of such a claim.
Chrysoula Komis is a former federal employee who worked for the Department of Labor’s Occupational Safety and Health Administration (OSHA). Between June 2003 and September 2008, Komis filed over 60 Equal Employment Opportunity (EEO) complaints. Komis contended that the agency created a hostile work environment in retaliation for those EEO complaints and other EEO complaints filed a decade earlier.
Komis alleged that her supervisors denied her the ability to work regularly from home, assigned her more clerical work, reassigned her to a different position, and failed to promote her. Komis also alleged that when Maureen Russo became her supervisor, Russo disciplined Komis in retaliation for making additional discrimination claims. In particular, Russo issued Komis a written reprimand, suspension, denial of access to training, and removal from a particular assignment.
In August 2008, Komis was issued a notice of proposed removal. In September 2008, Komis left OSHA and filed the last of her EEO complaints, alleging constructive discharge.
In October 2008, Komis sued the Secretary of Labor, alleging Title VII retaliation based on her non-selection for promotion, and a retaliatory hostile work environment. The matter was tried before a magistrate judge. 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 challenged the jury charge on appeal to the U.S. Court of Appeals for the Third Circuit.
The court began by clarifying that federal employees can bring claims for retaliation under Title VII even though the federal-sector provision of Title VII, 42 U.S.C. § 2000e-16(a), does not explicitly reference retaliation. The federal-sector provision reads: “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.” The court observed that the private-sector provision of Title VII, 42 U.S.C. § 2000e-3(a), bars retaliation, and many courts have consistently interpreted the federal-sector provision to give federal employees the same rights as private employees.
The court noted that to the extent there is any doubt that federal employees can bring retaliation claims under Title VII, the Supreme Court’s decision in Gomez-Perez v. Potter, 553 U.S. 474 (2008), supports its conclusion that Title VII bars retaliation in the federal sector. 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. There, the government argued that the federal-sector provision does not encompass retaliation claims because unlike the ADEA’s private-sector provisions, the federal-sector provision does not reference retaliation. The Supreme Court rejected the government’s reading, and concluded the federal-sector provision confers to employees the right to bring retaliation claims.
Here, the government accepted that federal employees may bring Title VII retaliation claims, but urged the court to interpret “personnel actions” in the federal-sector Title VII provision to mean “changes in the terms and conditions of employment,” the requirement for discrimination claims. The court found that all the hostile acts Komis alleged as part of the hostile environment are personnel actions potentially altering the terms and conditions of her employment. The court therefore decided that Komis’s retaliatory hostile work environment claim did not require it to resolve the parameters of the phrase “personnel action” in 42 U.S.C. § 2000e-16(a), and did not raise the question whether discrete retaliation claims that do not involve “personnel actions” are cognizable in the federal sector.
The court next addressed Komis’s contention that the jury instructions at trial were erroneous. In particular, Komis argued that the jury instruction that “the coworkers[’], 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” was in error. The court stated that Komis’s claim turns on the difference between the “severe or pervasive” standard and the “materially adverse” standard established in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), for discrete retaliation claims in the private-sector. The court determined that it did not need to resolve what standard applies here because Komis could not prevail under any potentially applicable standard, making any error in the jury instructions harmless.
The court found that Komis failed to explain why the jury would have determined the harms alleged by her 60+ EEO claims taken together were not severe or pervasive enough to effect the terms and conditions of her work, but were materially adverse enough to dissuade a reasonable person from making a charge of discrimination.
The court also noted that Komis failed to offer facts establishing a retaliatory hostile work environment because many of her claims lacked a causal connection to protected conduct. For example, Komis alleged that one of the incidents creating a retaliatory hostile work environment was Russo’s 2003 decision to deny her request to work regularly at home, but Komis had last filed an EEO claim in 1993 and offered no reason why Komis’s decision on this request was retaliatory. In another example, Komis alleged Russo unfairly disciplined her, but several of the named incidents occurred before Russo knew Komis filed EEO complaints.
Moreover, Komis failed 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).
As such, the court of appeals affirmed the judgment of the trial court.
Read the full case: Komis v. Secretary of Labor
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