Marie Laurent-Workman v. Christine Wormuth ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1766
MARIE LAURENT-WORKMAN,
Plaintiff - Appellant,
v.
CHRISTINE WORMUTH, Secretary, United States Department of the Army,
JOHN E. WHITLEY,
Defendant - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cv-01272-AJT-MSN)
Argued: September 13, 2022 Decided: November 29, 2022
Before GREGORY, Chief Judge, KING, and HARRIS, Circuit Judges.
Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge King and Judge Harris joined.
ARGUED: Paula M. Potoczak, LAW OFFICE OF PAULA M. POTOCZAK, Alexandria,
Virginia, for Appellant. Peter B. Baumhart, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: Ruth Ann Azeredo, LAW
OFFICE OF RUTH ANN AZEREDO, LLC, Annapolis, Maryland; Timothy W. Romberger,
LAW OFFICES OF TIMOTHY W. ROMBERGER, Washington, D.C., for Appellant.
Jessica D. Aber, United States Attorney, Richmond, Virginia, Catherine M. Yang, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.
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GREGORY, Chief Judge:
Appellant Marie Laurent-Workman appeals the district court’s dismissal of her
amended complaint filed against her former employer, the United States Department of the
Army. Laurent-Workman alleged that she experienced a hostile work environment due to
race-based harassment from a co-worker and retaliation by her supervisors through both
discrete acts and a retaliatory hostile work environment. For the reasons to follow, we
affirm the district court’s dismissal of Laurent-Workman’s discrete-act retaliation claim,
but we vacate its dismissal of her race-based hostile work environment and retaliatory
hostile work environment claims.
I.
The district court dismissed Laurent-Workman’s amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). Therefore, we review the district court’s
dismissal of Laurent-Workman’s claims from her perspective, accepting as true the factual
allegations in the amended complaint. Tobey v. Jones, 706 F.3d 379, 383 (4th Cir. 2013).
A.
Laurent-Workman is an African American woman of Haitian descent who, until
August 2020, was a career civilian employee with the Army. Laurent-Workman began
working as a Specialist for the Army Substance Abuse Program (“ASAP Specialist”) in
November 2017 and was stationed at United States Army Garrison Benelux (“USAG
Benelux”) in Belgium. Shortly after beginning her service at USAG Benelux,
Laurent-Workman allegedly experienced racially hostile conduct from a co-worker,
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Dorothea Adams. Adams is a Caucasian woman of Dutch citizenship who, despite working
in a different duty location, had overlapping responsibilities with Laurent-Workman. From
“an early point working together,” Adams made comments to Laurent-Workman that
“blacks cannot speak properly” and that she “cannot understand them.” J.A. 13. These
comments were not isolated instances. “On several occasions,” Adams “referred to
African-American/Black soldiers as ‘these people,’ and further stated she could not
understand African-Americans/Blacks.” J.A. 16.
While Adams’s insulting behavior was ongoing, she received favorable treatment
from the supervisor to whom she and Laurent-Workman directly reported, Jasser Khalifeh,
a Caucasian man of Jordanian descent. Sometime in June 2018, Laurent-Workman
informed Khalifeh of Adams’s behavior and her perception that he treated Adams more
favorably. Khalifeh refused to take any remedial steps and told Laurent-Workman that she
“failed to understand” that Adams is Dutch. J.A. 15.
The hostilities did not subside. During a July 23, 2018 incident, Adams “erupted in
anger and said this is NATO, we do things differently than ‘you people,’” and followed
Laurent-Workman as she walked back to her office, continuing her aspersions. J.A. 16.
Laurent-Workman reported this incident to Shun Thomas, an African American man who
was her second-line supervisor and the acting director of Human Resources at the time.
Thomas also failed to take remedial action. Sometime afterward this incident, Khalifeh
removed a quarter of Laurent-Workman’s work duties and delegated them to Adams.
Laurent-Workman’s subsequent attempts to seek remediation proved unsuccessful.
At the end of August 2018, Laurent-Workman met with Thomas to discuss the removal of
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her job responsibilities, her prior complaints about disparate and harassing treatment, and
the failure of management to address the problem. In response, Thomas “retorted”
something to the effect of “Do you like your job?” in a manner Laurent-Workman viewed
as an attempt to dissuade her from further complaints. J.A. 19. On September 5, 2018,
Laurent-Workman witnessed Adams spread a false rumor that another Black woman
colleague was under the influence of alcohol in the workplace and reported Adams’s
comments to Khalifeh. Rather than investigate the situation, Khalifeh ordered
Laurent-Workman not to contact Adams, insinuating that Laurent-Workman was “the
problem.” J.A. 18. Also in September 2018, Khalifeh communicated to a group of
colleagues during a work event that black male athletes “excel” in sports because “the slave
masters had bred the strongest slaves together.” J.A. 19.
Then, on September 24, 2018, Khalifeh reprimanded Laurent-Workman for trying
to “step on [Adams’s] toes” after she completed a work assignment that was within her job
description. J.A. 20. In October 2018, after Laurent-Workman complained to Thomas
about Khalifeh’s behavior a second time, Khalifeh made her go out of her way to contact
the Army’s Installation Management Command to acquire a work document important to
her work responsibilities, even though he already possessed a copy. After
Laurent-Workman requested a meeting to clarify her and Adams’s duties, Thomas and
Khalifeh held a November 16, 2018 meeting with Laurent-Workman and Adams. During
that meeting, Adams again mocked Laurent-Workman, referring to her as “you people”
before she “abruptly stood-up in a violent fashion causing her chair to crash into the wall,
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screamed at Ms. Laurent-Workman and stormed out of the room.” J.A. 22. Thomas and
Khalifeh took “no meaningful action” against Adams in response. Id.Laurent-Workman suffered more of the same following these incidents. On
November 28, 2018, Khalifeh denied her request to attend a suicide intervention skills
training that would have allowed her to fulfill an Army-required training. Khalifeh offered
her a fabricated reason for the denial. He told her that the budget was not yet approved for
expenditures, which was inconsistent with his earlier “mandate” that there was an “urgent”
need to spend the budget. J.A. 24. On December 13, 2018, Adams sent Laurent-Workman
an “accusatory” email, copying Khalifeh, claiming that Laurent-Workman failed to fully
complete work on an assigned education module for soldiers. Id. The same day,
Laurent-Workman met with counsel to initiate a complaint of discrimination, activity of
which Khalifeh and Adams were given notice.
In the months following Laurent-Workman’s initial Title VII complaint, Khalifeh
engaged in more oppressive conduct. Laurent-Workman could not present data during a
monthly ASAP meeting that took place in December 2018 because Adams, the person tasked
with data collection, had not compiled the necessary data—a failure recorded in the meeting
minutes. However, on February 4, 2019, Khalifeh altered the meeting minutes “to remove
and sanitize any mention of Ms. Adams’ name and malfeasance in the minutes,” leaving
Laurent-Workman’s name “to make it appear as if it were her fault.” J.A. 26. On March 13,
2019, Khalifeh saddled Laurent-Workman with new, unexpected, and unexplained
responsibilities. When Laurent-Workman indicated that she could not to take on extra work
not in her job description, Khalifeh “mockingly responded ‘I thought you cared about taking
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care of soldiers.’” J.A. 28. On August 8, 2019, Khalifeh prevented her from presenting at an
important work meeting, which she viewed as an attempt to embarrass her in front of her
superiors. In September 2019, she was further marginalized when Khalifeh skipped over her
in a meeting where she usually had an opportunity to speak. In another instance that month,
Laurent-Workman temporarily served as acting ASAP manager while Khalifeh was away,
but he assigned another co-worker who was stationed several hours from USAG Benelux to
take his place at a meeting the ASAP manager typically attended. On September 10, 2019,
Laurent-Workman submitted a second Title VII complaint, of which Khalifeh and Adams
had notice.
Due to the stress of her work environment, which often left her in tears and
aggravated a preexisting migraine condition, Laurent-Workman began looking for other
employment opportunities. In November 2019, a vacancy for a program coordinator
position became available within the Human Resources department. A selecting official
for that position was Yvette Castro, a Caucasian, Hispanic woman who replaced Thomas
as the director of Human Resources in July 2019. While Laurent-Workman and Castro
had only a “working relationship” before Castro became director of Human Resources,
Castro was “fond” of Khalifeh. J.A. 34. When Castro became director, Khalifeh reported
directly to her. Leadership in Human Resources and the ASAP program “regularly shared
information on employee matters, including any complaints.” Id. And “[g]iven Ms. Castro’s
close working relationship with Mr. Khalifeh and in her position as Director of Human
Resources, she would have known about Ms. Laurent-Workman’s initial and ongoing EEO
activities and the details of the complaints.” J.A. 35.
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After Laurent-Workman applied for the vacant program coordinator position,
Khalifeh inadvertently copied her on an email he sent to Castro mocking her interest and
qualifications for the position and telling Castro that he would not rehire her. This email
reflected what Laurent-Workman believes were ongoing conversations about her between
Khalifeh and Castro. During her interview for the position, Castro asked her specifically
about conflicts she had with co-workers. Castro then scored her interview performance
significantly lower than the other interviewers present. Ultimately, Laurent-Workman was
not selected for the position.
Even after these events, Khalifeh continued to give Laurent-Workman trouble. He
misinformed her about the date of a February 2020 meeting for which she was tasked with
preparing a presentation, which required her to complete the task at the last minute and
made her appear incompetent during the meeting. Castro joined the harassment by
transferring Laurent-Workman to another office and forcing her to move boxes after she
had sustained physical injuries in a car accident. Laurent-Workman’s problems eventually
ended when she resigned from her position in August 2020.
B.
On October 28, 2020, Laurent-Workman sued the Secretary of the Army for
substantive discrimination and retaliation under Title VII. In her amended complaint, she
alleged race/color discrimination, national origin discrimination, gender discrimination,
discrete-act retaliation, protected-status hostile work environment, and a hostile work
environment premised on retaliation. The Army moved for Rule 12(b)(6) dismissal.
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In its order dismissing all six counts, the district court construed Laurent-Workman’s
non-selection for the vacant program coordinator position as the sole basis for her disparate
treatment and discrete-act retaliation claims. It concluded that Laurent-Workman could not
state a plausible claim for race/color, national origin, and gender discrimination because none
of the facts supported an inference of discrimination. Turning to her retaliation claim, the
district court concluded that, assuming Castro knew of Laurent-Workman’s protected
activity, the “more than two and as much as over three months between her last protected
activity on December 2, 2019 and her non-selection” did not give rise to a reasonable
inference of a causal relationship between the two. J.A. 92.
The district court next analyzed Laurent-Workman’s retaliatory and race-based
hostile work environment claims together. It determined that the allegations in the
Amended Complaint did not plausibly plead conduct that was objectively so severe or
pervasive that it altered the terms, conditions, or privileges of Laurent-Workman’s
employment. Given its analysis, the district court granted the Army’s motion to dismiss.
Laurent-Workman appealed the district court’s dismissal of her substantive
discrimination claim based on a hostile work environment and her retaliation claims
sounding in discrete acts and a retaliatory hostile work environment.
II.
We review de novo a district court’s grant of dismissal under Federal Rule of Civil
Procedure 12(b)(6). See Wilcox v. Lyons, 970 F.3d 452, 456 (4th Cir. 2020). So long as a
complaint contains factual allegations that “raise a right to relief above the speculative
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level, thereby nudging [the] claims across the line from conceivable to plausible,” dismissal
is improper. Hately v. Watts, 917 F.3d 770, 782 (4th Cir. 2019) (quoting Aziz v. Alcolac,
Inc., 658 F.3d 388, 391 (4th Cir. 2011)). Bearing this standard in mind, we address each
of Laurent-Workman’s claims on appeal.
III.
Laurent-Workman first asks us to decide whether the district court properly
dismissed her discrimination claim. Title VII forbids employment discrimination based on
“race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). That prohibition
extends to federal employees like Laurent-Workman through Title VII’s federal-sector
provision: “All personnel actions affecting employees or applicants for employment . . .
in executive agencies . . . shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” § 2000e–16(a). Laurent-Workman argues that the district
court did not consider her allegations in their totality when it determined that she did not
plead a plausible race-based hostile work environment claim. We agree.
A.
The substantive discrimination provision of Title VII makes unlawful an employer’s
decision to “discharge any individual, or otherwise . . . discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race.” § 2000e–2(a). An employer violates the substantive discrimination
provision when it subjects an employee to a hostile work environment. Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 276–77 (4th Cir. 2015) (en banc). Working conditions
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form a hostile work environment when they are “permeated with discriminatory intimidation,
ridicule, and insult” that “alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).
At this stage, “an employment discrimination plaintiff need not plead a prima facie
case of discrimination.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020) (internal
citation omitted). To survive dismissal of her claim of a hostile work environment based on
her protected characteristics, Laurent-Workman must offer facts that plausibly support
inferences that “she was subjected to (1) unwelcome conduct, (2) based on her race [or
national origin] or sex, that was (3) severe or pervasive enough to make her work
environment hostile or abusive and (4) imputable to [] her employer.” Bazemore v. Best Buy,
957 F.3d 195, 200 (4th Cir. 2020) (internal citation omitted). She must also allege that her
protected characteristic under Title VII was the “but for” cause of the alleged harassment.
We consider several factors to evaluate whether the alleged working conditions are
severe or pervasive enough to support a Title VII claim. These factors include the
“frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.” Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir.
2011). However, “[a]ctivities like simple teasing, offhand comments, and off-color jokes,
while often regrettable, do not cross the line into actionable misconduct.” E.E.O.C. v.
Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010).
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B.
The district court concluded that Laurent-Workman’s complaint set forth
insufficient factual allegations to support a hostile work environment claim. It found
Laurent-Workman’s allegations too “sporadic” and explained that “the types of personnel
actions, reviews, workplace conflicts and work assignments” she alleged were neither
severe enough nor related enough to her protected characteristics. J.A. 94–97. The Army
urges us to affirm that conclusion because her allegations did not include racial slurs or
physical threats, mostly describe conduct by Adams who occupied a different duty
location, and did not occur daily.
Even though they do not depict daily misconduct, Laurent-Workman’s allegations
demonstrate a series of hateful workplace encounters that consistently targeted her racial
identity. She alleges that “[a]t an early point working together, Ms. Adams made a racially
insensitive comment to Ms. Laurent-Workman and others that ‘blacks cannot speak
properly.’” J.A. 13. At one point, Adams “erupted in anger and said this is NATO, we do
things differently than ‘you people,’” and hurled accusations at Laurent-Workman as she
attempted to retreat to her office. J.A. 16. According to Laurent-Workman, on several prior
occasions “Adams had referred to African-American/Black soldiers as ‘these people,’ and
further stated she could not understand African-Americans/Blacks.” Id. And during a meeting
held ostensibly to clarify Laurent-Workman and Adams’s duties, Laurent-Workman claims
that Adams again mocked her, referred to her as “you people,” and “abruptly stood-up in a
violent fashion causing her chair to crash into the wall, screamed at Ms. Laurent-Workman
and stormed out of the room.” J.A. 22. She also alleges that her direct supervisor Khalifeh
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announced his belief that Black male athletes “excel” in sports “because the slave masters
had bred the strongest slaves together.” J.A. 19. The repeat behavior of her coworker and
supervisor was neither isolated nor a symptom of trite differences. See Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims . . . [by their] very
nature involve[] repeated conduct.”).
We disagree with the district court’s contrary reasoning and the Army’s endorsement
of that position on appeal. Of course, “continuous daily” exposure to racial slurs is both
severe and pervasive. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001).
But daily hostility is not the essence of a Title VII harassment claim. Our focus remains on
the discriminatory character, severity, and consistency of the harassment. See, e.g., Perkins
v. Int’l Paper Co., 936 F.3d 196, 210 (4th Cir. 2019) (finding that statements the plaintiff
learned about second-hand, while racially offensive, ultimately were too remote in time
relative to each other to be pervasive); see also Ziskie v. Mineta, 547 F.3d 220, 226 (4th Cir.
2008) (recognizing that hostility must be tied to a plaintiff’s race or gender).
Laurent-Workman’s allegations describe just the sort of workplace behaviors that
Title VII serves to root out—repeated invectives of an overtly racial tenor. Adams’s
statements to Laurent-Workman that Adams could not understand African Americans
because they cannot speak properly communicated racial enmity by summoning an odious
trope about African American speech patterns. Even more demeaning, Khalifeh’s
comment connecting the abuses of chattel slavery to athletes of African descent callously
evoked the very “history of racial violence, brutality, and subordination” on which the most
execrable epithets prey. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1118 (9th Cir.
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2004). Laurent-Workman endured a breadth of publicly humiliating comments from
Adams on several occasions, some of which accompanied an element of physical
intimidation. Khalifeh not only knew of Adams’s racial hostility, but further entrenched it
with his own vile remark. In view of those circumstances, we are satisfied that
Laurent-Workman has pled a plausible claim for a race-based hostile work environment
over and “above the speculative level.” Hately, 917 F.3d at 782.
IV.
Next, Laurent-Workman claims that her Army supervisors retaliated against her
after she voiced complaints of discrimination. The anti-retaliation provision found in Title
VII makes it unlawful for an employer to “discriminate” against employees or applicants
because they have opposed discrimination or “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” under the Act. 42
U.S.C. § 2000e–3(a). Its purpose is to protect employees who complain about real or
perceived discrimination in the workplace from retaliation, which threatens to chill the
willingness of employees to speak up. See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182,
1189 (10th Cir. 2002) (“The purpose of § 2000e–3(a) is to let employees feel free to express
condemnation of discrimination that violates Title VII.”). As with the substantive
discrimination provision, the anti-retaliation provision’s protections are incorporated by
the federal-sector provision. See §§ 2000e–16(d), 2000e–5(g)(2)(A).
Three elements comprise a case for retaliation. A plaintiff must show (1) that she
engaged in a protected activity, (2) that her employer took an adverse action against her,
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and (3) that there was a causal link between the two events. Guessous v. Fairview Prop.
Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016). Laurent-Workman objects to the district
court’s determinations on elements two and three. 1
A.
It is necessary at the outset to clarify the proper showing of adversity applicable to
retaliation claims. Laurent-Workman argues that the Supreme Court’s decision in
Burlington Northern & Santa Fe Railway Company controls and that the appropriate
standard to assess all retaliation claims under Title VII requires us to determine whether an
action is “materially adverse” such that it would “dissuade a reasonable worker from
making or supporting a charge of discrimination.” 548 U.S. 53, 64 (2006). The Army
counters that Burlington Northern has no application here because it reaches only
private-sector claims of discrete-act retaliation.
Historically, courts treated retaliation claims similarly to substantive discrimination
claims. Although the substantive discrimination provision expressly forbids conduct that
affects an employee’s “compensation, terms, conditions, or privileges of employment” and
the anti-retaliation provision more broadly proscribes discrimination against employees who
1
Laurent-Workman also argues that the district court should not have narrowed her
discrete retaliation claim to just one act of retaliation—her non-selection for the vacant
program coordinator position. But whatever other discrete acts of retaliation
Laurent-Workman argues that her amended complaint alleges, they were not well-pled.
See Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (instructing
that only well-pleaded facts are assumed). The district court’s reading of the amended
complaint is also justified by Laurent-Workman’s trial counsel’s representation that
“[t]here’s two aspects of the retaliation claim . . . a hostile working environment retaliation
claim, and . . . a retaliation claim for the nonselection.” J.A. 61 (emphasis added).
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oppose a practice that Title VII forbids, Fourth Circuit precedent imported the substantive
discrimination standard into retaliation claims. See Von Gunten v. Maryland, 243 F.3d 858,
865 (4th Cir. 2001). Thus, we have held that the challenged acts of retaliation must “result[]
in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Id. at 865.
The Supreme Court charted a new course in Burlington Northern. That case decided
what standard the anti-retaliation provision imposed on a railroad company maintenance
worker suing her supervisors for acts of retaliation. Burlington N., 548 U.S. at 57. The
Supreme Court held that the phrase “discriminate against” in the anti-retaliation provision
does not confine actionable retaliation to adverse actions that alter the terms and conditions
of employment. Id. Comparing the linguistic differences between the anti-retaliation
provision and the substantive discrimination provision, the Court concluded that the terms
of the anti-retaliation provision include a wider variety of conduct within its scope. Id. at
62–63. Beyond the text, the Court described a practical concern driving its understanding
of the anti-retaliation provision’s purpose. Observing that an “employer can effectively
retaliate against an employee by taking actions not directly related to his employment or
by causing him harm outside the workplace,” the Court recognized that the anti-retaliation
provision’s goal of “prevent[ing] harm to individuals based on what they do” would not be
secured “by focusing only upon employer actions and harm that concern employment and
the workplace.” Id. at 63.
Burlington Northern thus rejected the standards that treated the anti-retaliation
provision “as forbidding the same conduct prohibited by the [substantive] provision,” such
as the one we articulated in Von Gunten. Id. at 67. Instead, “a plaintiff must show that a
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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 (citing Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006)). The standard sets out general terms to accommodate the
“constellation of surrounding circumstances, expectations, and relationships” that color an
employee’s experience, but it also features two guardrails. Id. at 69. By requiring an
employee claiming retaliation to show that her employer’s actions are “materially adverse,”
the standard separates minor harms from those that threaten to chill employees from
opposing unlawful discrimination. Id. at 68. We must also assess a retaliation claim
against the perspective of a reasonable employee to avoid “the uncertainties and unfair
discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective
feelings.” Id. at 68–69.
Since Burlington Northern, we have not fully studied the question of its total effect
on Title VII retaliation claims. After the decision, we held that it applied to a retaliation
suit premised on discrete acts of retaliation against a private-sector employer. Darveau v.
Detecon, Inc., 515 F.3d 334, 341–42 (4th Cir. 2008). But Laurent-Workman is suing the
United States Army, a federal agency, on both discrete-act and retaliatory hostile work
environment theories. Our task is to decide whether Burlington Northern also
contemplated federal-sector employers and retaliatory hostile work environment claims. 2
2
The parties do not dispute that Laurent-Workman’s retaliation claim for non-
selection alleged an adverse employment action. Therefore, that discrete-act retaliation
claim presumably would satisfy either standard.
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1.
We start by considering whether the adversity standard in Burlington Northern
applies to retaliation claims against federal employers. Although we have never addressed
this question in a published opinion, the issue is a familiar one. In Caldwell v. Johnson, a
scientist claimed that she faced retaliation for opposing gender-based discrimination while
working for the Environmental Protection Agency. 289 F. App’x 579, 583 (4th Cir. 2008)
(unpublished). She argued that the Burlington Northern standard applied to her as a federal
employee claiming retaliation. Id. at 587. In response, the agency made a similar argument
to the one the Army makes here; it argued that Burlington Northern adopted the “materially
adverse” standard after carefully comparing the difference in § 2000e–2(a)(1) and
§ 2000e–3(a), both of which apply to private employees, not federal ones. Id. To settle
the dispute, we focused on two overarching considerations.
First, we observed that the federal-sector provision regulates “[a]ll personnel actions.”
Id. at 589 (citing § 2000e–16(a)) (emphasis and alteration in original). This means the federal-
sector provision outlaws a broader range of employer conduct than the substantive
discrimination provision, which covers activity related to “compensation, terms, conditions, or
privileges of employment.” § 2000e–2(a)(1). At the same time, we recognized the anti-
retaliation provision broadly covers “discrimination” against those who oppose Title VII
violations and, unlike the federal-sector provision, does not limit itself to “personnel actions.”
Caldwell, 289 F. App’x at 589. While Congress did not define “personnel actions” in Title
VII, we determined that “ultimate employment decisions such as hiring, granting leave,
discharging, promoting, and compensating” constitute only “the general level of decision we
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think contemplated by the term personnel actions” but the term may also include a broader
range of activity. Id. (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)); Von Gunten,
243 F.3d at 866 n.3 (internal quotations omitted). Satisfied that “[t]his definition comports
with the ordinary meaning of the phrase,” we opined that “many decisions involving human
resources constitute personnel actions despite falling short of being ultimate employment
decisions.” Caldwell, 289 F. App’x at 589 (internal quotations omitted).
Second, we noted that we previously have applied the pre-Burlington Northern
private-sector standard to a federal employee’s retaliation claim. Id. at 590 (citing Baqir
v. Principi, 434 F.3d 733, 747–48 (4th Cir. 2006); Price v. Thompson, 380 F.3d 209, 212–
13 (4th Cir. 2004)). That traditional application is particularly important because “it would
be illogical for Congress to impose an additional element of proof on federal employees
when it has provided identical remedies for federal and private employees who allege
retaliation.” Id. at 591. Nothing in Burlington Northern’s reasoning undermines that
custom. Also “worthy of mention” is that Burlington Northern adopted the “materially
adverse” standard after citing a District of Columbia Circuit decision, which applied the
“materially adverse” standard to an employee of the FBI, a federal agency. Id. (citing
Rochon, 438 F.3d at 1219). Thus, we held in Caldwell that Burlington Northern “applies
to federal employees and private employees alike.” Id. at 588.
The Army urges us to brush Caldwell aside, arguing that “[l]ike the private-sector
substantive discrimination provision, the federal-sector provision of Title VII uses markedly
narrower text than the private-sector anti-retaliation provision at issue in Burlington
Northern.” Resp. Br. at 20. This is so, the Army argues, because the federal-sector provision
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is expressly limited to “personnel actions.” § 2000e–16(a). By casting the federal-sector
provision in the same lot with the substantive discrimination provision as deliberately
narrow, the Army seeks to distance the federal-sector provision from the broad language of
the anti-retaliation provision. We read the interplay between these provisions differently.
We are unpersuaded by the Army’s view that the inclusion of “all personnel actions”
in the federal-sector provision grants it a narrower scope than the anti-retaliation provision
which omits that language. Instead, as Caldwell recognized, the reference to “personnel
actions” in the federal-sector provision broadens, rather than limits, the provision beyond
the terms of the substantive discrimination provision. 289 F. App’x at 589. Importing a
narrow reading of the federal-sector provision into a federal retaliation claim ignores the
salient remark in Burlington Northern that an “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 (emphasis omitted).
The Army’s view of the federal-sector provision’s scope also conflicts with Title
VII’s statutory scheme. Section 2000e–16(d) specifies that the “provisions of section
2000e–5(f) through (k) . . . shall govern” federal-sector claims. Situated among that range
of governing law lies § 2000e–5(g)(2)(A), a section of the statute that authorizes relief for
a violation of the anti-retaliation provision. See Gomez-Perez v. Potter, 553 U.S. 474, 488
n.4 (2008). In other words, the federal-sector provision incorporates by reference the anti-
retaliation provision. Naturally, the federal-sector provision adopts the standards applicable
to the anti-retaliation provision as well. See Baqir, 434 F.3d at 742 (applying pre-Burlington
Northern private-sector anti-retaliation standard to federal employees); see also Rochon,
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438 F.3d at 1219 (“Nothing in § 2000e–16(d) or § 2000e–5(g) suggests § 2000e–3(a) is to
be read differently when applied to the Government”).
In any event, the Army’s comparison between the substantive discrimination
provision and the federal-sector provision misidentifies their common trait. What the two
provisions share is not the breadth of employer conduct each regulates, but what they
protect. By outlawing discrimination against individuals based on a set of protected
characteristics, each serves to “prevent injury to individuals based on who they are, i.e.,
their status.” See id. at 63 (describing the substantive discrimination provision).
Our examination of Title VII’s text, Burlington Northern, and Caldwell compels us
to hold that the Burlington Northern “materially adverse” standard applies to private
employees and federal employees alike. That conclusion is in line with the majority view
of the other circuits to address the question. See, e.g., Tonkyro v. Sec’y, Dep’t of Veterans
Affairs, 995 F.3d 828, 836–37 (11th Cir. 2021); Taylor v. Geithner, 703 F.3d 328, 336 (6th
Cir. 2013); Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 954–55 (8th Cir.
2011); Lapka v. Chertoff, 517 F.3d 974, 985–86 (7th Cir. 2008); Patterson v. Johnson, 505
F.3d 1296, 1299 (D.C. Cir. 2007).
2.
We now consider whether the Burlington Northern holding applies to retaliatory
hostile work environment claims. A hostile work environment claim is available to Title
VII plaintiffs who have not experienced a tangible employment action, i.e., suffered
economic consequences. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). Plaintiffs
may claim mistreatment based on their protected characteristics in violation of the
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substantive discrimination provision under a hostile work environment theory, but only if
that mistreatment is so “severe or pervasive” that it affects the “terms, conditions, or
privileges” of her employment. Id.; Harris, 510 U.S. at 21–22. The defining characteristic
of the Meritor/Harris standard is its incorporation of the substantive discrimination
provision’s prohibition of discrimination “against any individual with respect to his
compensation, terms, conditions, or privileges of employment.” § 2000e–2(a) (emphasis
added). It measures the harshness of a workplace to determine whether those conditions
are tantamount to an adverse employment outcome prohibited by the statute. See Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“The prohibition of harassment
on the basis of sex . . . forbids only behavior so objectively offensive as to alter the
‘conditions’ of the victim’s employment.” (emphasis added)); see also Hoyle v.
Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011) (“Because the workplace environment
is one of the ‘terms, conditions, or privileges of employment,’ Title VII creates a cause of
action for employees forced to work in a hostile workplace.”) (internal citation omitted).
Before Burlington Northern, we held that “[r]etaliatory harassment can constitute
adverse employment action” if it affected the terms, conditions, or benefits of employment.
Von Gunten, 243 F.3d at 866–69. But the Supreme Court now imposes a less demanding
heuristic for retaliation claims to accomplish the purpose of that provision. Plaintiffs need
to show material adversity precisely because acts of retaliation that do not alter the terms
of employment still can frustrate Title VII’s aims. Burlington Northern, 548 U.S. at 63.
Unlike the substantive discrimination provision, the anti-retaliation provision seeks to deter
not status-based discrimination, but employer retribution that chills employee opposition
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to discrimination. Id. So it follows that any action that “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination” satisfies the
“materially adverse” standard under the anti-retaliation provision. Id. at 68.
Inserting the Meritor/Harris standard from the substantive discrimination provision
back into the anti-retaliation provision repeats the error Burlington Northern sought to
correct. The Supreme Court emphasized that the disparate goals of the substantive
discrimination and anti-retaliation provisions motivated its adoption of a broader standard
for retaliation claims. Id. at 63 (“The substantive 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.”). That reasoning
is fortified by the long-held understanding that Congress created federal anti-retaliation
laws to “[m]aintain[] unfettered access to statutory remedial mechanisms.” Robinson v.
Shell Oil Co., 519 U.S. 337, 346 (1997); see also Mitchell v. Robert DeMario Jewelry, Inc.,
361 U.S. 288, 292 (1960) (“Plainly, effective enforcement could thus only be expected if
employees felt free to approach officials with their grievances.”); Darveau, 515 F.3d at 343(reciting the purpose of anti-retaliation provisions under Title VII and Fair Labor Standards
Act as “preventing an employer from interfering (through retaliation) with an employee’s
efforts to secure or advance enforcement of the Act’s basic guarantees”). It does not give
way simply because retaliation takes the form of a hostile work environment.
To be sure, Burlington Northern did not jettison the Meritor/Harris formula
completely. While retaliation claims are not limited to actions that alter the terms and
conditions of employment, “severity” and “pervasiveness” are useful units of measurement
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to determine whether claimed harassment is actionable. After all, the standards for judging
hostility must be “sufficiently demanding to ensure that Title VII does not become a ‘general
civility code.’” Faragher v. Cty. of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation
omitted). “Properly applied, they will filter out complaints attacking ‘the ordinary
tribulations of the workplace,’” id., “that all employees experience,” Burlington N., 548 U.S.
at 68. The severity and frequency of hostility are important factors to consider when
determining whether the circumstances would dissuade a reasonable employee from
opposing discrimination, just as they are for assessing substantive hostile work
environments. See E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)
(listing factors considered in hostile work environment analysis); cf. Burlington N., 548 U.S.
at 77 (Alito, J., concurring in judgment) (acknowledging that under the materially adverse
standard “employer conduct that causes harm to an employee is permitted so long as the
employer conduct is not so severe as to dissuade a reasonable employee from making or
supporting a charge of discrimination” (emphasis added)).
Accordingly, a retaliatory hostile work environment must be so severe or pervasive
that it would dissuade a reasonable worker from making or supporting a charge of
discrimination. This standard retains the “middle path” set out in Harris between accepting
“any conduct that is merely offensive” and requiring plaintiffs to show a “tangible” injury,
510 U.S. at 21–22. But it also harmonizes that compromise with the goal of the anti-retaliation
provision “to provide broad protection from retaliation.” DeMasters v. Carilion Clinic, 796 F.3d
409, 418 (4th Cir. 2015) (quoting Burlington N., 786 F.3d at 67) (internal quotation omitted).
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B.
The district court understandably applied the Meritor/Harris standard to determine
the level of adversity Laurent-Workman’s retaliatory hostile work environment claim must
show. However, given the Supreme Court and our precedents, a hostile work environment
claim based on retaliation must instead allege that the retaliatory conduct (1) was
unwelcome, (2) was sufficiently severe or pervasive that it would dissuade a reasonable
worker from making or supporting a charge of discrimination, and (3) can be attributed to
the employer. Burlington N., 548 U.S. at 68.; Okoli, 648 F.3d at 220.
Under that standard, Laurent-Workman has stated a prima facie case. An
“employee’s decision to report discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often take place at work and that all
employees experience,” Burlington N., 548 U.S. at 68, but the consistent (even if not
constant) conduct Laurent-Workman alleges plausibly qualifies as materially adverse. She
claims that after she complained to Khalifeh and Thomas about Adams’s and Khalifeh’s
conduct, Khalifeh engaged in a series of unpredictable management decisions and acts of
sabotage. These alleged reprisals ranged from erroneous reprimands to bogus denials of
professional training opportunities to the alteration of work product in a manner damaging
to Laurent-Workman’s reputation, on top of additional meddling.
Although any one of these allegations does not amount to much when considered in
isolation, “[t]hese determinations depend on the totality of the circumstances, as [a] play
cannot be understood on the basis of some of its scenes but only on its entire performance, and
similarly, a discrimination analysis must concentrate not on individual incidents, but on the
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overall scenario.” DeMasters, 796 F.3d at 417 (quoting Moore v. City of Philadelphia, 461
F.3d 331, 346 (3d Cir. 2006)). Together, the allegations tell a multi-act story of undermining,
gaslighting, and disruption. She has adequately pled that a reasonable employee may have
been dissuaded from following through with her complaints due to Khalifeh’s conduct. See
Tobey, 706 F.3d at 386 (“Allegations have facial plausibility ‘when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
misconduct alleged.’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
C.
Finally, Laurent-Workman quarrels with the district court’s conclusion that the facts
she alleged did not justify an inference that her non-selection for the program coordinator
position was caused by her prior complaints of ill-treatment. When it dismissed her
retaliation claim, the district court concluded that Laurent-Workman failed to plausibly
allege causation based on the temporal proximity between her last known Title VII
complaint on December 2, 2019, and her non-selection for the program coordinator
position sometime following her interview on February 7, 2020—“even assuming that
Castro somehow had knowledge of all of Plaintiff’s protected activity.” J.A. 92.
We agree that Laurent-Workman failed to allege a non-speculative link between her
Title VII claim and her non-selection. Causation can be shown in two ways: by “show[ing]
that the adverse act bears sufficient temporal proximity to the protected activity,” or by
showing “the existence of facts that suggest that the adverse action occurred because of the
protected activity,” or a combination of the two. Smith v. CSRA, 12 F.4th 396, 417 (4th
Cir. 2021) (cleaned up). Laurent-Workman’s allegations support neither showing.
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“[T]emporal proximity between an employer’s knowledge of protected activity and
an adverse employment action” may establish causation only if it is “very close.” Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Yet there was at least a two-month
temporal gap between Laurent-Workman’s last known Title VII complaint and her non-
selection for the program coordinator position. Although there is no “bright-line rule” for
when temporal proximity helps or hurts a cause of action for retaliation, Roberts v. Glenn
Indus. Grp., Inc., 998 F.3d 111, 126–27 (4th Cir. 2021), a two-month temporal gap
“between [] notice of the complaint and the adverse employment action is sufficiently long
so as to weaken significantly the inference of causation between the two events,” King v.
Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003) (dealing with a schoolteacher who was
terminated at the end of the academic year, just over two months after his supervisor
learned of his protected activity).
Laurent-Workman may overcome the delay by showing that her non-selection came
at a “natural decision point . . . making likely” that any adverse action would happen at that
time. Id. But the amended complaint alleges that Castro assumed a supervisory role as early
as July 2019, about seven months before Laurent-Workman’s February 2020 non-selection,
and that she knew about her Title VII complaints during that time. Unlike the plaintiff in
King, who was a teacher fired at the end of the academic year, Laurent-Workman’s amended
complaint does not lend itself to an inference that Castro did not have an opportunity to
retaliate against her during the prior seven-month period as her supervisor.
Other gaps in Laurent-Workman’s amended complaint underscore its deficient showing
of causation. For example, it does not allege whether Laurent-Workman was qualified for the
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program coordinator position. See Glenn v. Wells Fargo Bank, N.A., 710 F. App’x 574, 577 (4th
Cir. 2017) (unpublished) (affirming dismissal of retaliation because the appellant lacked factual
allegations that he qualified for the benefits he sought). Nor does it allege whether the position
was filled by a non-qualified applicant or anyone at all. Thus, we find no error in the district
court’s assessment of Laurent-Workman’s discrete-act retaliation claim.
V.
For the foregoing reasons, we affirm the dismissal of Laurent-Workman’s discrete-
act retaliation claim but we vacate the dismissal of her retaliatory and race-based
harassment claims and remand those claims to the district court for further proceedings
consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART
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