Harley v. United States Secretary of the Treasury

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4501
_____________
JEFFREY HARLEY,
Appellant
v.
UNITED STATES SECRETARY OF THE TREASURY,
AN AGENCY OF THE UNITED STATES GOVERNMENT,
JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE
_____________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-07-cv-03559)
District Judge: Honorable Jerome B. Simandle
_____________
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2011
Before: RENDELL, JORDAN and BARRY, Circuit Judges.
(Opinion Filed: September 15, 2011)
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
Jeffrey Harley appeals from the District Court’s grant of summary judgment
against him, contending that the Court erred in considering the facts relating to his
retaliation claims as separate and discrete acts rather than as a pattern of ongoing
harassment, and in concluding that Harley had not satisfied the second and third prongs
of his prima facie case. We will affirm.1
Harley is an African American male who previously sued the defendant for race
discrimination, harassment and retaliation. The case was settled, providing Harley with
money and a promotion to a GS-11 position, and, Harley contends, promotion potential to
GS-12. When the promotion did not materialize Harley filed an EEO complaint and then
another lawsuit, which was subsequently dismissed for failure to aver an adverse
employment action under Title VII. The instant complaint is based on a series of 6 EEO
complaints filed thereafter, between November 2002 and October 2006.
“Reading the complaint and EEO documents generously in Plaintiff’s favor”, the
District Court considered the myriad retaliatory acts urged by Harley – setting forth 15
distinct instances of discrimination and/or retaliation. App. 19. It then analyzed them at
length under hostile work environment, racial discrimination and retaliation rubrics in a
detailed 45 page opinion.
On appeal, Harley complains that the District Court should have considered the
defendant’s conduct as a continuous pattern of discrimination and retaliation, not as
1
Our jurisdiction over this matter is proper pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a District Court’s decision to grant summary judgment. Hugh v.
Butler Cnty. Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). We apply the same test as
the District Court: whether there is a genuine issue of material fact, and, if not, whether
the moving party is entitled to judgment as a matter of law. Armbruster v. Unisys Corp.,
32 F.3d 768, 777 (3d Cir. 1994), abrogated on other grounds by Showalter v. Univ. of
Pittsburgh Med. Ctr., 190 F.3d 231, 235-36 (3d Cir. 1999).
2
separate and discrete acts, and that the District Court erred in concluding that Harley had
not satisfied the second and third prong of his prima facie case. We disagree. Harley
focuses on the District Court’s handling of the Title VII retaliation claims which Harley
terms his “retaliatory hostile work environment” claims. He urges that the retaliatory acts
by different individuals over an 11 year period created an ongoing hostile work
environment and a pattern of harassment that established an adverse employment action.
Harley’s attempt to “morph” hostile work environment and retaliation causes of
action into one does not alter the fact that he has not satisfied the specific requirements
for either. For a hostile work environment claim to succeed, the conduct complained of
must be adverse, severe, pervasive or regular and of the kind that would have
detrimentally affected a reasonable person in like circumstances. Hudson v. Procter &
Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009). The separate discrete
instances cited by Harley – specifically, “glares” directed at him at the Cherry Hill office
between 1996 and 1998, and two e-mails sent to him in 2004 – were held by the District
Court to not rise to the level required. We agree.
With respect to his claims of retaliation, Harley had to satisfy the three prongs of
the prima facie case: (1) plaintiff engaged in an activity protected by Title VII; (2) the
employer took an adverse employment action against him; and (3) there was a causal
connection between his participation in the protected activity and the adverse
employment action. Moore v. City of Philadelphia, 461 F.3d 341-42 (3d Cir. 2006).
3
And, as the District Court noted, we must separate significant harms from trivial ones in
assessing whether the employer’s actions were materially adverse. Id. at 346.
While acknowledging that his EEO complaints, lawsuits and complaints to supervisors
constituted protected activity, the District Court concluded that Harley had failed to show
an adverse employment action and/or causation. In so deciding, the District Court
reviewed every action complained of and determined that, with the exception of two of
the claims, the actions were either not significantly adverse, or were not adequately
supported in the record. The Court then examined whether the causal connection prong
was satisfied with respect to those two claims – exclusion from Suspicious Activity
Report (SAR) team meetings, and the Treasury Inspector General for Tax Administration
(TIGTA) investigation into Harley’s worker’s compensation request. The District Court
noted that the connection can be shown by the temporal proximity of the protected
activity and the retaliatory conduct, or, lacking that, if there is evidence of intervening
antagonism or retaliatory animus, or evidence that, as a whole, gives rise to an inference
of discriminatory retaliation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81
(3d Cir. 2000) . The District Court found that none of these tests were met.
Notwithstanding Harley’s urgings to the contrary, we conclude that the District
Court’s analysis was comprehensive and its reasoning was correct. We find no error.
Accordingly, we will affirm.
4