Caldwell v. Johnson , 289 F. App'x 579 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1706
JANE C. CALDWELL,
Plaintiff - Appellant,
versus
STEPHEN L. JOHNSON, Administrator for the
United States Environmental Protection Agency,
Defendant - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
District Judge. (CA-03-707-1)
Argued: May 22, 2006 Decided: August 15, 2008
Before WIDENER1 and MICHAEL, Circuit Judges, and Joseph R. GOODWIN,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed in part, and reversed and remanded in part by unpublished
per curiam opinion.
ARGUED: John Heydt Philbeck, Sr., ALLEN & PINNIX, Raleigh, North
Carolina, for Appellant. Joan Brodish Binkley, Assistant United
1
Judge Widener heard oral argument in this case but did not
participate in the decision. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The appellant, Dr. Jane C. Caldwell, appeals the district
court’s Order granting summary judgment to her employer, the
Environmental Protection Agency (“EPA”), on her claims arising
under Title VII of the Civil Rights Act of 1964. On appeal, Dr.
Caldwell claims that the district judge erred in three respects:
(1) by granting summary judgment on her claim for hostile work
environment discrimination by coworkers; (2) by granting summary
judgment on her claim for hostile work environment discrimination
by supervisors; and (3) by granting summary judgment on her claim
for retaliation. Because her employer addressed promptly and
reasonably each of her allegations of discrimination, we affirm the
judgment of the district court on the hostile work environment
claims. The record contains sufficient evidence of retaliatory
conduct to raise a genuine issue of material fact, however, and we
reverse the judgment of the district court on Caldwell’s
retaliation claim and remand for further proceedings.
3
I.
A.
Dr. Caldwell earned her Ph.D. in toxicology in 1986 and began
working for the EPA in 1991.2 J.A. 212.3 She initially worked as
an environmental scientist in the Office of Air Quality Planning
and Standards. Id. In March 1999, Dr. Caldwell was detailed to
the EPA’s Office of Research Development (“ORD”) in the National
Center for Environmental Assessment Research Triangle Park Division
(“NCEA-RTP”). Id. As a subgroup of that office and division, Dr.
Caldwell worked under the direct supervision of Dr. Michael
Stevens, the Branch Chief of the Hazardous Pollutant Assessment
Group (“HPAG”).
In the summer of 1999, Dr. Caldwell alleges that she found
printed emails in her chair left by a coworker. The emails
consisted of “‘jokes’ that contained offensive and sexist
remarks.” J.A. 214. On another employee’s computer, Dr. Caldwell
noticed “materials of a sexual nature (e.g., explicit cartoons
depicting naked women).” J.A. 214-15. In April 2000, she found
another printed email in her chair left by a coworker that
contained material that was sexual in nature. J.A. 215. On other
2
We review the facts in the light most favorable to the non-
moving party, Dr. Caldwell. Lee v. York County Sch. Div., 484 F.3d
687, 693 (4th Cir. 2007).
3
Citations herein to “J.A. __” are citations to the Joint
Appendix filed by the parties.
4
occasions, a male coworker, Gary Foureman, would occasionally
approach Dr. Caldwell and “stand uncomfortably close” to her.
Later that year, while wearing “bright yellow very short shorts,”
Mr. Foureman propped his leg up on a chair next to Dr. Caldwell so
“[h]is leg and crotch area were very close to [her] face.” J.A.
219.
Dr. Caldwell became a permanent employee in HPAG in August
2000. Not long after this change in status, a female coworker
named Judy Strickland informed Dr. Caldwell that another of her
male coworkers was telling peer employees that he was having an
affair with Dr. Caldwell. J.A. 216-17. On April 3, 2001, Dr.
Caldwell attended a branch meeting for the purpose of completing
surveys aimed at measuring the employees’ work environment related
to “trust and lack of discrimination.” J.A. 235. At the meeting,
Mr. Foureman stated loudly to other employees that “[i]t ha[d] been
his experience that only bitchy people” complete surveys measuring
the work environment, and that he intended to complete his form so
as to prevent the results from being skewed by the “bitchy
people.” J.A. 235.
Dr. Caldwell’s Complaint also highlights the behavior of her
supervisors in the period from 1999 to early 2001. She states that
her supervisors, particularly Mr. Stevens, were openly hostile
toward her and other female employees. J.A. 218-20. Stevens
frequently called another female employee a “bitch,” and warned
5
others not to interact with the so-labeled employee. J.A. 218.
When he conducted branch meetings, Stevens allowed male employees
to speak freely and engage in discussions without criticism, while
Dr. Caldwell and her fellow female employees were frequently “cut
off,” criticized, and treated in a rude and hostile manner. J.A.
221, 227. During a branch meeting in approximately June 2000, Dr.
Caldwell was, in her own words, “very vocal in asking [Foureman]”
questions about a problem he wished to discuss, and Foureman became
“frustrated and stormed out of the meeting.” J.A. 220. That
afternoon, Stevens asked to meet Dr. Caldwell. During the meeting
Stevens reprimanded Dr. Caldwell, told her that “asking too many
questions was bad for [her] career,” and told her that she “was too
vocal and assertive in branch meetings.” J.A. 220-21. After that
interaction, Stevens became more hostile toward Dr. Caldwell when
she spoke at branch meetings, although other male employees
remained vocal and interrupted others. J.A. 221-22. Dr. Caldwell
noted other discrepancies between the way her supervisors treated
her and the way they treated her male coworkers: Stevens denied
her travel reimbursements because it benefitted the D.C. office,
while male employees received travel reimbursement for similar
projects, J.A. 216, 219; he would schedule appointments with male
employees, but would demand Dr. Caldwell’s time without scheduling,
J.A. 1201; and he would frequently scrutinize the work of female
employees but not that of male employees, J.A. 1201.
6
Following her placement as a permanent employee, Dr. Caldwell
attended her first performance review with Stevens on February 8,
2001. J.A. 227. Stevens told her that she talked too much in
branch meetings and asked too many questions. J.A. 228. He
indicated that her performance was satisfactory, but that “no
matter what [her] qualifications were,” he would not recommend her
for a promotion to a higher salary grade. J.A. 232.
After these interactions with her supervisors and coworkers,
Dr. Caldwell contacted an Equal Employment Opportunity (EEO)
counselor, an internal counselor within the EPA, regarding the
“disparate treatment and harassment because of gender bias” that
she had experienced.4 When she contacted the EEO counselor, she
“described the pornography being passed around the office” and the
other conduct of her coworkers. J.A. 207. She indicated to the
EPA’s Office of Civil Rights on April 5, 2001, that she scheduled
an appointment with an EEO counselor for April 6, 2001. J.A. 236-
37. Stevens was reassigned a few weeks later to a position where he
had no supervisory power over Dr. Caldwell. J.A. 241. Other
supervisors with successively higher supervisory power over Dr.
Caldwell were likewise reassigned to different posts in the days,
4
Three other female employees, Marsha Marsh, Sharon Taylor,
and Amy Grady, filed EEO complaints around the same time as Dr.
Caldwell. They complained of sex discrimination and hostile work
environment. See, e.g., J.A. 1204.
7
weeks and months after she filed her EEO complaint, and Beverly
Comfort took over as HPAG branch manager. J.A. 299, 273, 275-76.
After initiating contact with the EEO counselor, Dr. Caldwell
claimed that she suffered various forms of retaliation at the hands
of her supervisors, including the following:
• Her supervisors, specifically NCEA-RTP Director Lester Grant,
delayed and interfered with her promotion and project
opportunities.
• Her supervisors, including Stevens, delayed the approval and
processing of her promotion package.
• She experienced a delay in approval for an alterative work
schedule.
• Management fired a coworker who was working with Dr. Caldwell
in order to make Dr. Caldwell miss a deadline.
• In June 2001, Assistant Director of NCEA-RTP Randy Brady sent
Dr. Caldwell and the other EEO complainants a formal “letter
of warning” and initiated a disciplinary action for
“inappropriate actions taken with a contractor employee” that
was issued without required notice, and which the supervisor
subsequently withdrew. J.A. 275.
• Her computer was tampered with and she believed that her
emails were monitored.
• When Dr. Caldwell and the other complainants moved to a
separate office building because they feared for their
personal safety, Dr. Caldwell did not have adequate office
furniture, and could not access voice mail, office mail and
email. J.A. 1205-06.
• Someone smashed a taillight on her “unique and recognizable”
automobile, “in a way inconsistent with it being hit by
another car.” J.A. 343.
Dr. Caldwell also contends that her coworkers continued to
harass her after she filed her EEO claim with the EPA in April
8
2001. One coworker, Jim Raub, called her into his office and
discussed a scientific paper that he found on the Internet
concerning average penis lengths, and the varying methods of
measurement. J.A. 238, 1206. Raub told Dr. Caldwell that the
conversation was “‘okay’ because it was ‘medical’ in nature.” Id.On another day in April 2001, Raub called Dr. Caldwell and another
EEO complainant into his office and confessed that “he had a
fixation with staring at women’s breasts,” and asked whether the
women noticed him staring at their chests. J.A. 244-45. In early
May 2001, Raub forwarded an email to Dr. Caldwell, her fellow
complainants, and a few other male employees entitled “Fussy
Females Play Away.” The email quoted another scientific article
that stated “[f]emales interact sneakily with males.” J.A. 1208-
09. The email offended Dr. Caldwell, who sent it to EPA
headquarters in Washington. Raub apologized by email the same day.
Id.In May 2001, Dr. Caldwell found an envelope in her chair that
contained a document that purported to be a review of a Chinese Tea
called “SO WHY MEE (Camellia assassina).” J.A. 267, 1207-08. The
review described the tea in unflattering terms, which Dr. Caldwell
believed indicated the author’s opinion of her and her fellow EEO
complainants: that they were bitter, extremely irritating,
overfermented, contained thorns, and should be “iced.” J.A. 267,
9
1207-08. The envelope also contained a passage from Shakespeare’s
King Lear: “Oh, that madness lies; let me shun that.” J.A. 267.5
The record contains other various allegations of
discrimination and retaliation, many of which are detailed in Dr.
Caldwell’s 220 page affidavit and which the Magistrate Judge
thoroughly reviewed.6
B.
Dr. Caldwell filed her Complaint in the United States District
Court for the Middle District of North Carolina on July 28, 2003,
alleging discrimination based on disparate treatment because of
gender, discrimination based on a hostile work environment, and
unlawful retaliation, all in violation of Title VII. 42 U.S.C. §
2000e to 2000e-17. J.A. 8-33. The appellee filed a motion for
summary judgment, which was referred to a Magistrate Judge for
5
Dr. Caldwell believes that the reference to King Lear was
significant because the play involves three daughters who betray
their father. She believes the quote symbolized the three EEO
complainants and their grievances with the EPA. J.A. 269.
6
The appellee filed a Motion to Strike portions of Dr.
Caldwell’s affidavit and portions of other witnesses’ affidavits
because they were not based on personal knowledge and contained
inadmissable hearsay. See J.A. 1195-97. The Magistrate Judge
granted the defendant’s motion after it examined the identified
portions of the affidavits. Id. Because the parties did not
include the Motion to Strike or related memoranda in the Joint
Appendix, we are unable to determine which portions of the
affidavits the Magistrate Judge excluded. As a result, our review
of the facts necessarily resembles the facts reviewed by the
Magistrate Judge.
10
Proposed Findings and Recommendation. The Magistrate Judge entered
his Recommendation and Order on March 10, 2005, in which he
recommended that the district judge grant the appellee’s motion for
summary judgment. J.A. 1194-1250.
In reaching this recommendation, the Magistrate Judge found
that Dr. Caldwell had offered evidence sufficient to support a
prima facie showing that she had suffered hostile work environment
gender discrimination under Matvia v. Bald Head Island Management,
Inc., 259 F.3d 261, 266 (4th Cir. 2001). J.A. 1231-40.
Notwithstanding the prima facie showing, the Magistrate Judge
recommended granting summary judgment to the EPA on the hostile
work environment claims because the EPA was entitled to the
affirmative defense that it had exercised reasonable care to
prevent and correct any harassing behavior, and because Dr.
Caldwell had unreasonably failed to take advantage of any
preventive or corrective opportunities offered by her employer.
J.A. 1240-45.
The Magistrate Judge also recommended granting summary
judgment on Dr. Caldwell’s retaliation claim, finding that she
failed to offer evidence that the EPA “took adverse employment
action” against her. J.A. 1245. The Magistrate Judge found that
she did not offer evidence that the EPA took action that “adversely
affected the terms, conditions, or benefits of her employment,”
11
J.A. 1246-48 (citing Von Gunten v. Maryland, 243 F.3d 858,866 (4th
Cir. 2001)).
Dr. Caldwell timely filed objections to the Recommendation and
Order. J.A. 1251-67. The District Judge adopted the Recommendation
and Order of the Magistrate Judge and entered its judgment order on
April 19, 2005. J.A. 1268-69. Dr. Caldwell filed a Notice of
Appeal on June 17, 2005. After full briefing and oral argument,
this court remanded the case to the district court to determine the
effect, if any, of Burlington Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53 (2006), on Dr. Caldwell’s retaliation claim.
The matter was once again referred to the Magistrate Judge, who
determined that White had no impact on Dr. Caldwell’s claim because
her claim for retaliation arose under 42 U.S.C. § 2000e-16 (which
applies to employees of federal agencies) rather than § 2000e-3
(which applies to employees who work for private employers). On
June 18, 2007, the District Judge adopted the Recommendation of the
Magistrate Judge that White had no impact on Dr. Caldwell’s claim.
We possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
“We review the district court’s grant of summary judgment de
novo.” Hill v. Lockheed Martin Logistics Management, Inc., 354
F.3d 277, 283 (4th Cir. 2004)(citing Higgins v. E.I. DuPont de
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988)). Summary
12
judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). We construe the evidence in
the light most favorable to Dr. Caldwell and draw all reasonable
inferences in her favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
III.
A.
In order to prevail on a supervisor-created hostile work
environment claim, an employee must show “(1) unwelcome conduct,
(2) based on [the employee’s] gender, (3) sufficiently pervasive or
severe to alter the conditions of employment and to create a
hostile work environment, and (4) some basis for imputing liability
to [the employer].” Matvia, 259 F.3d at 266. If an employer takes
a “tangible employment action,” the employer is strictly liable.
Id. at 266. The Supreme Court has defined “tangible employment
action” as, among other things, “discharge, demotion, or
undesirable reassignment.” Faragher v. City of Boca Raton, 524
U.S. 775, 808 (1998).
13
When the employee does not experience a “tangible employment
action,” the employer may prevail based on an affirmative defense.
“The defense comprises two necessary elements: (a) that the
employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise.” Id. at 807. Here, the district court determined that
Dr. Caldwell had presented issues of material fact as to each
element of her prima facie hostile work environment claim, J.A.
1231-37, but held that Dr. Caldwell did not experience any
“tangible employment action” as a result of her supervisors’
behavior.
Dr. Caldwell argues that she suffered tangible employment
action as part of the hostile work environment in two respects.
First, she alleges that the delay in promotion was a tangible
employment action. Second, she alleges that the substandard
working conditions she faced after changing buildings qualified as
a tangible employment action. We disagree with both contentions.
The record does not support Dr. Caldwell’s contention that the
delay in her promotion was a tangible employment action. In her
deposition, she offered “conjecture” and stated that “I can’t tell
you an exact constellation of reasons of why it was delayed.” J.A.
1076. Additionally, we agree with the district court that a six
14
month delay in promotion –– especially when the promotion is
reviewed by an independent panel comprised of EPA and independent
scientists –– does not constitute a tangible employment action
under these circumstances.7 Likewise, the change in Dr. Caldwell’s
working conditions when she changed buildings does not rise to the
level of “discharge, demotion, or undesirable reassignment.”
Faragher, 524 U.S. at 808. “A tangible employment action in most
cases inflicts direct economic harm.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761-62 (1998). Dr. Caldwell has not pointed
to any action that rises to the level of “tangible employment
action” which would trigger strict liability.
Next, Dr. Caldwell argues that the appellee failed to satisfy
the affirmative defense outlined in Ellerth and Faragher. She
maintains that the EPA could not have exercised reasonable care to
prevent and correct promptly any harassing behavior because its
anti-harassment policy was defective and dysfunctional. She
further argues that the EPA failed to remedy quickly her work
environment once it became aware of the condition. Neither
contention is persuasive.
7
We are not unmindful of the statement in Burlington
Industries, Inc. v. Ellerth, that “failing to promote” can be a
tangible employment action. 524 U.S. 742, 761 (1998). Dr.
Caldwell suffered, if anything, a delay in promotion. She has not
offered sufficient evidence, however, to link the purported delay
to discrimination by her supervisors.
15
“[D]issemination of an effective anti-harassment policy
provides compelling proof that an employer has exercised reasonable
care to prevent and correct sexual harassment. Evidence showing
that the employer implemented the policy in bad faith or was
deficient in enforcing the policy will rebut this proof.” Matvia,
259 F.3d at 268 (citations and quotations omitted). Although Dr.
Caldwell concedes that the EPA distributed an anti-harassment
policy, she argues that the policy was defective and dysfunctional.
The record supports the contrary. Dr. Caldwell herself effectively
took advantage of the policy when she approached the EEO
counselors, as this contact led the EPA to separate Stevens from
Dr. Caldwell. Furthermore, the policy provided employees with
clear directions for how to make complaints without involving their
supervisors.
Dr. Caldwell’s claims that other supervisors failed to take
prompt remedial actions in response to her complaints about
Stevens’ behavior also fails. While the record contains some
evidence that she complained about Stevens’ behavior before she
filed her EEO complaint, nothing in the record supports her
conclusion that her prior complaints related to gender
discrimination or a hostile work environment. J.A. 1243. The EPA
was not made aware of a hostile work environment, and therefore
could not have taken “prompt remedial actions.” For those reasons,
we agree with the district court that the EPA was entitled to
16
summary judgment on Dr. Caldwell’s supervisor-related hostile work
environment claim.
B.
Dr. Caldwell’s claim against the EPA for the discriminatory
conduct of her coworkers also fails. Dr. Caldwell may prevail
against the EPA on her claim for hostile work environment arising
from the actions of her coworkers only if the EPA “was negligent
‘in failing, after actual or constructive knowledge, to take prompt
and adequate action to stop it.’” Howard v. Winter, 446 F.3d 559,
567 (4th Cir. 2006) (citing Mikels v. City of Durham, 183 F.3d 323,
332 (4th Cir. 1999)). Constructive knowledge may be imputed to a
defendant when “a ‘reasonable [person], intent on complying with
Title VII,’ would have known about the harassment.” Ocheltree v.
Scollon Prods., 335 F.3d 325, 334 (4th Cir. 2003)(citing Spicer v.
Virginia, 66 F.3d 705, 710 (4th Cir. 1995)).
Dr. Caldwell argues that the EPA had both actual and
constructive notice of coworker harassment. She argues that the
district court erred in finding that the EPA did not have notice of
the harassment, given that the court also found the harassment to
be “pervasive” for the purpose of analyzing Dr. Caldwell’s prima
facie case. See Swentek v. USAir, Inc., 830 F.2d 552, 558 (4th
Cir. 1987)(stating that harassment by coworkers can be “so
17
pervasive that employer awareness may be inferred”).8 We need not
address this contention, however, because the district court’s
conclusion ultimately rested on its finding that the EPA’s response
was prompt and adequate. J.A. 1239. The record supports this
finding as it shows that the EPA responded by “holding branch
meetings to discuss inappropriate behavior in the workplace and by
sending out emails discussing inappropriate behavior.” J.A. 1239.
We therefore agree with the district court that summary judgment
was appropriate on Dr. Caldwell’s claim for a coworker-related
hostile work environment.
C.
We now turn to Dr. Caldwell’s third contention –– that the
district court erred in granting summary judgment in favor of the
EPA on her retaliation claim. She argues that the standard from
White applies to federal employees, and that the district court
erred in finding that White had no application to her claim. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68. She
8
Although the plaintiff’s contention has some superficial
appeal, it would be illogical for us to assume that whenever a
district court determined that a plaintiff had shown that
harassment was severe or pervasive for prima facie purposes, the
plaintiff had also ipso facto proved that the defendant had
constructive knowledge of harassing behavior. To do so would
render the notice requirement a sheer formality. Likewise, it
would render meaningless the statement in Swentek that harassment
must be “so pervasive” that knowledge may be assumed, which
indicates that the degree of pervasiveness must exceed the level
required by the prima facie standard. Swentek, 830 F.2d at 558.
18
further argues that the record contains issues of material fact on
her retaliation claim. The EPA contends that the White “materially
adverse” standard applies only to private employees. It argues
that the Court reached the result in White after carefully
comparing the difference in § 2000e-2(a)(1) and § 2000e-3(a), both
of which apply to private employees, not federal employees. The
EPA further argues that it is entitled to summary judgment on the
retaliation claim, even under the White standard, because Dr.
Caldwell’s allegations do not rise to the level of conduct
contemplated in White.
The Title VII provision that protects employees of the federal
government from workplace discrimination provides the following:
“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.” 42 U.S.C. § 2000e-16(a). We have long held that
this language prohibits discrimination in the federal workplace
just as § 2000e-2 prohibits discrimination in the private
workplace. Wright v. Nat’l Archives and Records Svc., 609 F.2d
702, 705-06 (4th Cir. 1979). Instead of determining whether a
“personnel action[]” has taken place, our federal employee
discrimination cases have instead adopted the private employment
standard of whether a plaintiff has suffered an “adverse employment
action.” We have noted that “[a]lthough phrased differently, [42
19
U.S.C. § 2000e-29 and 42 U.S.C. § 2000e-16(a)] have generally been
treated as comparable, with the standards governing private-sector
illegal claims applied to such claims brought by federal
employees.” Baqir v. Principi, 434 F.3d 733, 742 (4th Cir. 2006)
(citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en
banc)).
In 2006, the Supreme Court decided in White that, in order to
prevail on a retaliation claim, a privately-employed plaintiff need
not show an “adverse employment action defined as a materially
adverse change in the terms and conditions of employment.” White,
540 U.S. at 60 (quotations and citations omitted). Instead, “a
plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means
it might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 67-68 (quotations
and citations omitted). The Supreme Court reached this conclusion
after studying the language of § 2000e-2(a)(1) (the private anti-
9
42 U.S.C. § 2000e-2(a)(1) states:
It shall be an unlawful employment practice for an
employer—
(1) 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[.]
20
discrimination provision) and § 2000e-3(a) (the private anti-
retaliation provision).
That 42 U.S.C. § 2000e-16(a) prohibits substantive
discrimination in an identical fashion (if not in identical terms)
as 42 U.S.C. § 2000e-2(a)(1) is not in dispute. Rather, in this
case we are called upon to determine whether the standard for
retaliation claims announced in White, 548 U.S. at 67-68, applies
to actions brought by federal employees.10 Our review of the
statutory language and recent Supreme Court case law indicates that
the White standard applies to federal employees and private
employees alike.
1.
We begin with the observation that we face this question from
a peculiar standpoint. Before White, we read the retaliation
component of the federal employee statute in harmony with the
private retaliation standard without scrutinizing the differing
language of the statutes. Baqir, 434 F.3d at 747-48. White held
that the language of the private anti-retaliation statute provides
10
We note, as we have in previous cases, that we have never
squarely held that § 2000e-16(a) prohibits retaliation in the
federal workplace. See Baqir, 434 F.3d at 742 n.16. The EPA
concedes that § 2000e-16(d) incorporates a retaliation claim
through its adoption of the remedies available for a retaliation
claim in § 2000e-5(g), but instead argues for a narrow
interpretation of the claim. We therefore need not reach the
question here.
21
substantially broader protection than this court had previously
applied in cases such as Von Gunten, 243 F.3d at 866. In doing so,
the Court noted meaningful differences in the anti-discrimination
and anti-retaliation statutes that provided recovery for a far
broader range of retaliatory conduct unrelated to employment.
White, 548 U.S. at 60-63. White instructs that the language of the
private anti-retaliation provision does not require “actions that
affect employment or alter conditions of the workplace.” White,
548 U.S. at 62. The question we now face is whether the reference
to “personnel actions” in the federal employee provision does
impose such a requirement. In other words, we must determine
whether an extinct standard that originated from a different
statute remains alive and well in the federal employee context.
As an initial matter, we note that in § 2000e-16(a), Congress
chose to regulate “[a]ll personnel actions.” Section 2000e-16(a)
thus on its face covers a broader range of activity than does the
private anti-discrimination statute, which must involve activity
related to “compensation, terms, conditions, or privileges of
employment[.]” 42 U.S.C. § 2000e-2(a)(1). The private anti-
retaliation provision, however, contains no such limitation.11
11
That provision provides that “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of
his employees or applicants for employment . . . because he 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).
22
White, 548 U.S. at 62-63. The requirement in the federal employee
statute that the activity involve a “personnel action[]” therefore
adds an element that the private anti-retaliation provision does
not contain.
Unfortunately, Congress did not define the term “personnel
actions” in Title VII. In previous cases involving § 2000e-16(a),
we looked to whether the action involved “ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
and compensating.” Page v. Bolger, 645 F.2d 227, 233 (4th Cir.
1981). As we cautioned in Page and elsewhere, “[t]his is the
general level of decision we think contemplated by the term
‘personnel actions.’” Id. at 233. We also stated that “Page did
not hold . . . that ‘hiring, granting leave, discharging,
promoting, and compensating’ was an exhaustive list of what
constituted an ‘ultimate employment decision.’” Von Gunten, 243
F.3d 866 n.3. Thus, all “personnel actions” need not fall within
the examples from Page.12
This definition comports with the ordinary meaning of the
phrase “personnel action[].” While, hiring and firing may
12
Indeed, courts have applied Von Gunten’s test of whether an
employment action “adversely affected the terms, conditions or
benefits” of employment to federal employees whose claims arise
under § 2000e-16(a), just as the district court did in this case.
See J.A. 1246-48. In Von Gunten, we described the “terms,
conditions and benefits” test as less restrictive that the
“ultimate employment decision” test in Page. Von Gunten, 243 F.3d
at 864-66.
23
represent the prototypical personnel action, many decisions
involving human resources constitute personnel actions despite
falling short of being “ultimate employment decisions.” The EPA
contends that when Congress used the term “personnel actions,” it
had in mind only those actions that had a direct monetary impact on
an employee. The statutory language, however, contradicts that
contention. If Congress had intended to cover only “personnel
actions” that had a direct monetary impact on an employee, it would
have used terms identical to those used for private employees in §
2000e-2. It likewise would not have used the modifier “[a]ll” in
front of “personnel actions” unless it intended the statute to
sweep broader than personnel actions that have a direct monetary
impact on the employee.
Congress has defined the term broadly elsewhere in the federal
employment context. For example, in the Merit Systems Principles
in Title 5 governing federal employees, it defined “personnel
action” as “(i) an appointment; (ii) a promotion; (iii) an action
under chapter 75 of this title or other disciplinary or corrective
action; (iv) a detail, transfer, or reassignment; (v) a
reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a
performance evaluation under chapter 43 of this title; (ix) a
decision concerning pay, benefits, or awards, or concerning
education or training if the education or training may reasonably
be expected to lead to an appointment, promotion, performance
24
evaluation, or other action described in this subparagraph; (x) a
decision to order psychiatric testing or examination; and (xi) any
other significant change in duties, responsibilities, or working
conditions[.]” 5 U.S.C. § 2302(a)(2). This definition covers not
only “ultimate employment decisions,” but also “any other
significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2).
The EPA additionally contends that Congress must have intended
to include an employment-related action in a retaliation claim
because otherwise Congress would have adopted the identical
language from the private employment context. Because Congress
chose to do so in different terms, the EPA infers that Congress
must have intended two different standards. As the Supreme Court
recently reiterated, “‘negative implications raised by disparate
provisions are strongest’ in those instances in which the relevant
statutory provisions were ‘considered simultaneously when the
language raising the implication was inserted.’” Gomez-Perez v.
Potter, 128 S.Ct. 1931, 1940 (2008) (quoting Lindh v. Murphy, 521
U.S. 320, 330 (1997)). Here, as in Gomez-Perez, “the two relevant
provisions were not considered or enacted together.” Id. Congress
enacted § 2000e-3 in 1964, 78 Stat. 257, while it enacted § 2000e-
16(a) in 1972, 86 Stat. 111.
The parties cite to different portions of the legislative
history to conjure an intent of Congress that supports their
25
respective views. Dr. Caldwell directs the court to the statement
in the statute’s legislative history that: “[T]here can exist no
justification for anything but a vigorous effort to accord Federal
employees the same rights and impartial treatment which the law
seeks to afford employees in the private sector.” House Rep. No.
92-238, 1972 U.S.C.C.A.N. 2137, 2158 (1971) (emphasis added). The
EPA, on the other hand, points to a statement in the same House
Report that indicates that the statute “would extend some
protection to Federal employees.” Id. at 2137. Plucking these two
sentences from the legislative history adds little to the
interpretation of the statute. A review of case law from the
Supreme Court and from other circuits sheds some light on which
standard we should apply.
2.
Our cases have supported the proposition that the anti-
retaliation standard that applies to private employees also applies
to federal employees. This Court and others adopted (implicitly,
if not explicitly) for federal employees the “adverse employment
action” standard that was applicable to private employees prior to
White. See Baqir, 434 F.3d at 747-48 (applying private standard);
see also Price v. Thompson, 380 F.3d 209, 212-13 (4th Cir. 2004)
(same). On some occasions, this Court reviewed the private
employee anti-retaliation statute (§ 2000e-3(a)) in evaluating the
26
retaliation claims of a federal employee. Price, 380 F.3d at 212-
13 (reviewing federal employee’s invocation of § 2000e-3(a)).
On the one hand, applying the same standard to federal
employees and private employees without regard to the statutory
language of each provision runs afoul of the Supreme Court’s
acknowledgment in White that language that differs in important
respects may result in differing standards. On the other hand, 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. This is
especially so when, in the words of White,
The anti-retaliation provision seeks to secure that
primary objective [of anti-discrimination] by preventing
an employer from interfering (through retaliation) with
an employee's efforts to secure or advance enforcement of
the [anti-discrimination provision]'s basic guarantees.
The substantive provision seeks to prevent injury to
individuals based on who they are, i.e., their status.
The anti-retaliation provision seeks to prevent harm to
individuals based on what they do, i.e., their conduct.
* * * A provision limited to employment-related actions
would not deter the many forms that effective retaliation
can take. Hence, such a limited construction would fail
to fully achieve the anti-retaliation provision's
“primary purpose,” namely, “[m]aintaining unfettered
access to statutory remedial mechanisms.”
White, 548 U.S. 53, 63-64 (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997)).
27
Our sister circuits that have addressed the question in
reported opinions after White have all applied the White standard.13
See Lapka v. Chertoff, 517 F.3d 974, 985-86 (7th Cir.
2008)(applying White standard to Department of Homeland Security
employee); Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C. Cir.
2007) (applying White to EPA employee, the same defendant as this
case); Nair v. Nicholson, 464 F.3d 766, 768-69 (7th Cir. 2006)
(stating that “it is now settled that retaliation to be actionable
need not take the form of an adverse employment action” in case
involving federal employee). This comes as no surprise because in
White the Supreme Court explicitly adopted the test applied by the
Seventh and District of Columbia Circuits which applied the
“materially adverse” standard in the private employment sphere.
White, 548 U.S. 67-68 (“We agree with the formulation set forth by
the Seventh and the District of Columbia Circuits.”).
It is worthy of mention that, in adopting the D.C. Circuit’s
test, the Supreme Court cited a D.C. Circuit case that applied the
“materially adverse” standard to a federal employee. See Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (applying
“materially adverse” standard to an employee of the FBI). That is,
13
Our review of cases from this circuit and others has revealed
scores of unreported cases that apply the White standard to federal
employees whose claims arise under § 2000e-16(a). See, e.g., Moore
v. Leavitt, 258 Fed. Appx. 585, 586, 2007 WL 4426625 * 1 (4th Cir.
2007); Parsons v. Wynne, 221 Fed. Appx. 197, 198, 2007 WL 731398,
1 (4th Cir. 2007); Brockman v. Snow, 217 Fed.Appx. 201, 206, 2007
WL 493926 * 3 (4th Cir. 2007).
28
the Supreme Court chose a federal employment case, rather than a
private employment case, from which to adopt the “materially
adverse” standard. Moreover, the D.C. Circuit in Rochon
specifically rejected the argument that the EPA makes in this case:
[W]e must consider whether, when referenced in §
2000e-16(d) via § 2000e-5(g)(1)-(2)(A), 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. Nothing
in § 2000e-16(d) or § 2000e-5(g) suggests § 2000e-3(a) is
to be read differently when applied to the Government. .
. . [W]e now hold that an alleged act of retaliation by
the Government need not be related to the plaintiff's
employment in order to state a claim of discrimination
under Title VII.
Rochon, 438 F.3d at 1219 (citations and quotations omitted).
Based on the language of the statute, the Supreme Court’s
rationale in White, and a review of other courts who have addressed
the matter, we conclude that the White standard applies to both
private employees and federal employees whose retaliation claims
arise under § 2000e-16(a). See White, 548 U.S. at 67-68. Thus, to
establish a prima facie case of retaliation, a plaintiff must show
(1) that she engaged in protected activity, (2) that her employer
took materially adverse action against her, such that it could
dissuade a reasonable worker from making or supporting a charge of
discrimination, see White, 548 U.S. 67-68, and (3) that a causal
relationship existed between the protected activity and the
materially adverse activity. See also Price, 380 F.3d at 212.
29
3.
The district court initially applied the “adverse employment
action” test from Price, 380 F.3d at 212, to Dr. Caldwell’s
retaliation claim, and determined that summary judgment was
appropriate because Dr. Caldwell had not proved a “genuine issue of
material fact that [the EPA’s] actions adversely affected the
terms, conditions, or benefits of her employment.” J.A. 1246. On
remand, the district court further held that White did not apply to
Dr. Caldwell’s claims, and did not address either the final element
in Dr. Caldwell’s prima facie retaliation claim, or the EPA’s
argument that it can offer a legitimate, non-retaliatory
explanation for the action. Because we now find that the White
“materially adverse” standard applies to Dr. Caldwell’s retaliation
claim, we reverse and remand for consideration of the record in
light of the new standard.
IV.
We affirm the district court’s grant of summary judgment in
favor of the EPA on Dr. Caldwell’s hostile work environment claims.
We reverse and remand the district court’s judgment as to Dr.
Caldwell’s retaliation claim.
Accordingly, the judgment of the district court is
AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.
30