Chrysoula Komis v. Secretary United States Depart

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. § 1331

and 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.

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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.

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