2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-15-2011

Jeffrey Harley v. Secretary Treasury

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4501

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Recommended Citation

"Jeffrey Harley v. Secretary Treasury" (2011). 2011 Decisions. Paper 530.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/530
NOT PRECEDENTIAL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
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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).
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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). 
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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.