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).

UNPUBLISHED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Affirmed in part, and reversed and remanded in part by unpublished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
2

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Unpublished opinions are not binding precedent in this circuit.
3

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.
2We review the facts in the light most favorable to the nonmoving 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

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
5

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
6

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.
4Three 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

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,
8

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
9

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,
5Dr. 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.

6The 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

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
11

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,”
12

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
13

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).
14

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
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

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.
16

“[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
17

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
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

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
19

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
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

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-
10We 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

discrimination provision) and § 2000e-3(a) (the private antiretaliation 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
11That 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

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 antiretaliation provision, however, contains no such limitation.11
12Indeed, 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

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
24

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
25

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 § 2000e16(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
26

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 antiretaliation 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
27

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)).
13Our 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

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,
29

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.
30

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.