JEFFREY KENGERSKI, Appellant v. ORLANDO HARPER; COUNTY
No. 20-1307
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Opinion filed July 29, 2021
PRECEDENTIAL. Argued on December 15, 2020.
Margaret S. Coleman (Argued)
Law Offices of Timothy P. O‘Brien
535 Smithfield Street
Suite 1025
Pittsburgh, PA 15222
Counsel for Appellant
Andrew F. Szefi
Virginia Spencer Scott (Argued)
Frances M. Liebenguth (Argued)
Allegheny County Law Department
300 Fort Pitt Commons
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Counsel for Appellee
Sharon Fast Gustafson
Jennifer S. Goldstein
Elizabeth E. Theran
James M. Tucker
Equal Employment Opportunity Commission
Office of General Counsel
131 M St. NE, Rm. 5NW10P
Washington, D.C. 20507
Eric. S. Dreiband
Alexander V. Maugeri
Katherine E. Lamm (Argued)
U.S. Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403
Bonnie I. Robin-Vergeer
U.S. Department of Justice
Appellant Section
MJB 3718
950 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Amicus Appellant United States of America
Samuel J. Cordes
Rothman Gordon, P.C.
310 Grant Street
Third Floor, Grant Building
Pittsburgh, PA 15219
Cоunsel for Amicus Appellants The Western Pennsylvania Employment Lawyers Association, National Employment Lawyers Association Eastern Pennsylvania
OPINION OF THE COURT
AMBRO, Circuit Judge
Jeffrey Kengerski, a Captain at the Allegheny County Jail, made a written complaint to the jail Warden alleging that a colleague had called his biracial grand-niece a “monkey” and then sent him a series of text messages with racially offensive comments about his coworkers. Seven months later, Kengerski was fired. He contends the County fired him in retaliation for repоrting his colleague‘s behavior and sued the County under Title VII of the Civil Rights Act of 1964,
We disagree. Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint. As relevant here, harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII by creating a hostile work environment. Because a reasonable person could believe that the Allegheny County Jail was a hostile work environment for Kengerski, we vacate the District Court‘s grant of summary judgment.
This does not mean that Kengerski will ultimately succeed on his retaliation claim, or even that it must survive summary judgment on remand. The County claims that it fired him for an unrelated reason that is unquestionably serious: mishandling a sexual harassment claim. We therefore remand to the District Court to consider whether Kengerski has sufficiently shown that he was fired because of his Title VII complaint.
I. Background
In April 2015, Kengerski submitted a written complaint to Orlando Harper, Warden of the Allegheny County Jail. This complaint was against Robyn McCall, a white female employee at the jail who had been promoted to Major in December 2014. In his complaint, Kengerski detailed an event from over a year before (early in
Kengerski‘s complaint also mentioned and attached racially offensive text messages that McCall sent to him.1 The District Court reviewed these messages and concluded that
[t]hey were sent between February and June 2014 and depict unflattering photographs of
African-Americans and Asians, often repeating offensive stereotypes. For instance, several of the photographs depict overweight African-American women, and one of the photographs depicts an Asian wоman with enlarged teeth. Some of the photographs have captions comparing them to African-American and Asian employees at the jail.
Kengerski v. Allegheny Cnty., 435 F. Supp. 3d 671, 674 (W.D. Pa. 2020). After reporting McCall‘s comment and text messages, Kengerski‘s complaint asserts that he has “been harassed” and “feel[s] [he is] in a hostile environment and will be disciplined, harassed and possibly ridiculed by Major McCall on any occasion.” J.A. at 236. Kengerski then concluded his complaint by detailing other managerial (but not explicitly racial) harassment he alleges suffering caused by McCall, including punitive assignment to the overnight shift.
The Warden subsequently referred Kengerski‘s complaint to the County law department. McCall was placed on administrative leave in May 2015 and resigned three months later. Kengerski claims that McCall was forced to resign because of his complaint. Following McCall‘s resignation, Kengerski reported several events he considered “retaliation” from other officers. J.A. at 394.
In November 2015, seven months after his complaint and three months after McCall‘s resignation, the County terminated Kengerski. It claims this was after he mishandled a sexual harassment complaint, including allegations that he told two subordinate officers to lie on their reports during the investigation. In this connection, the County asserts that Warden Harper stated Kengerski‘s conduct was “more egregious than anything [the Warden had] seen . . . [i]n [his] 27 years of being a correctional professional.” J.A. at 959. Kengerski challenges this reason as “pretextual,” as the true motivation was retribution for reporting McCall and causing her resignation. J.A. at 1210.
In June 2017, the Equal Opportunity Employment Commission (EEOC) closed an investigation into Kengerski‘s termination and issued a right-to-sue letter. Kengerski filed suit two months later against Warden Harper and the jail. The initial complaint included claims for violation
II. Discussion2
Title VII makes it unlawful for an employer to retaliate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter . . . .”
Here, Kengerski contends that he meets all three elements for a prima facie case because (1) his complaint about McCall was protected conduct, and (2) he was fired (3) because of his complaint. Our review on appeal is plenary, which means we review each element anew. Id. at 340. We conclude that the District Court erred in granting summary judgment against Kengerski solely on the first element of the prima facie case. We need not address the second element, as the County concedes it is satisfied by Kengerski‘s termination. And because the District Court has yet to decide the third element, on remand it may consider causation in the first instance.
A. Kengerski Survives Summary Judgment on the First Element оf His Prima Facie Case Because a Reasonable Person Could Believe McCall‘s Behavior Violated Title VII.
To satisfy the first element of his prima facie case, Kengerski must show that he held “an objectively reasonable belief, in good faith, that the activity [he opposed] is unlawful under Title VII.” Moore, 461 F.3d at 341. Kengerski opposed McCall‘s behavior by sending a written letter to the jail‘s warden that said he “would like to make a complaint about Major McCall with regards to harassment and inappropriate racial text messages.” App. at 236.4 The question we ask is therefore
Workplace behavior may violate Title VII in a variety of ways. As relevant here, the Title may be violated when an employee‘s racist behavior creates a hostile work environment for his colleagues.6 Still, we must be careful to distinguish between a hostile-work-environment claim (which Kengerski is not bringing) and his retaliation claim. To succeed on the former, a plaintiff needs to show that the environment was actually hostile, i.e., that the offensive conduct at work was either “severe” or “pervasive.” See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017). But for a retaliation claim a plaintiff need not show that his working environment in hindsight was actually hostile, only that he held an objectively reasonable belief that it was. The difference between these two standards reflects a part of Title VII‘s purpose to “encourage employees to report harassing conduct before it becomes severe or pervasive.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (explaining that the standard for an adverse emрloyment action differs between retaliation claims and other discrimination claims because “differences in the purpose of the two provisions . . . justify this difference of interpretation“).
Still, a retaliation claim must be tied to Title VII. An employee must have complained about the type of conduct that is generally protected by that Title, such as discrimination on the basis of race. This includes discrimination because of an employee‘s association with a person of another race (such as a family member). But a complaint about workplace behavior that is so minor and isolated that it could not “remotely be considered ‘extremely serious‘“—that is not within some striking distance of an actual hostile work environment—is not protected because “[n]o reasonable person could have believed that [it] . . . violated Title VII‘s standard.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam). Here, viewing McCall‘s comment and her text messages together, we conclude that a reasonable person could have believed the jail was a hostile work environment for Kengerski, and thus violated Title VII.
1. Employees Are Protected from Retaliation When They Reasonably Believe Their Work Environment Is Hostile Because of Their Association with Others.
Amici (the United States and two Pennsylvania-based affiliates of the
On the merits, we agree with our sister circuits that associational discrimination is well grounded in the text of Title VII. In a practical sense, the name is a misnomer because, when you disсriminate against an employee because of his association with someone of a different race, you are in effect discriminating against him “because of [his own] race” in violation of Title VII.
This theory of discrimination is not limited to close or substantial relationships. While “one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association,” the “degree of association is irrelevant” to whether a plaintiff “is eligible for the protections of Title VII in the first place.” Barrett v. Whirlpool Corp., 556 F.3d 502, 513 (6th Cir. 2009); accord Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 884 (7th Cir. 1998). Employees thus may not be discriminated against because of their interracial relationships with distant relatives such as a grand-niece.
2. A Reasonable Person Could Believe That the Jail Was a Hostile Work Environment for Kengerski.
Here, McCall‘s behavior was clear and consistent: she expressed racial animosity toward jail employees who either were black or associated with black persons, such as Sam Pastor (who raised a biracial child) and Kengerski (who was considering taking in his biracial grand-niece). Therefore, we simply ask whether the totality of McCall‘s conduct is serious enough that a reasonable person could conclude that Kengerski‘s work environment was hostile.
We first pause to make an important clarification about McCall‘s standing in the jail at the time of the relevant conduct. The parties—including Kengerski—state that at the time of McCall‘s comments she had not yet been promoted to Major, seemingly implying that at the time of this conduct she was Kengerski‘s coworker. But reading the record in the light most favorable to Kengerski compels a conclusion that McCall was Kengerski‘s superior at the jail at the time of her offensive conduct, because McCall was a Captain and Kengerski was a Sergeant. See J.A. at 83 (a County personnel file showing an effective date of Kengerski‘s promotion from Sergeant to Captain in September 2014); id. at 289 (the County‘s statement of facts acknowledging that “Kengerski was promoted from the position of sergeant to the position of captain on September 24, 2014“); id. at 236 (Kengerski‘s complaint alleging the comment made by “Captain McCall” occurred “over a year” before April 2015 and in any case prior to the text messages); Kengerski, 435 F. Supp. 3d at 674 (finding that the relevant text messages were sent between Februаry and June 2014). The County itself acknowledges this distinction in rank is significant: “[S]ergeants and corrections officers [a]re subordinate to [captains],” who are “part of management.” County‘s Br. at 4; see also J.A. at 290 (the County‘s statement of facts acknowledging that “sergeants are . . . not a part of management,” but “Captains and above are part of the Jail‘s management team“). This dispels framing this case as involving harassment by a mere coworker.7
While the County incredibly attempts to argue that the comment about Kengerski‘s grand-niece (and another jail employee‘s child) being monkeys was merely a harmless “zoomorphism,” it is clear that this term was used in a racist manner. County‘s Br. at 17; see Kengerski, 435 F. Supp. 3d at 679 (finding that this comment was an “offhand, yet offensive, remark“). As the Fourth Circuit has recognized, “describing
extreme.” Boyer-Liberto, 786 F.3d at 280 (citation omitted). Indeed, that Court reasoned that the term “porch monkey” was “about as odious” as the use of the “n-word.” Id. Consequently, it concluded that even two uses of that term, viewed as а single incident of harassment, could be found by a reasonable jury to be “severe enough to engender a hostile work environment.” Id. When faced with a single use of a racial epithet by a supervisor, we rejected the District Court‘s conclusion that “it was unreasonable for Plaintiffs to believe that a single incident of a discriminatory remark . . . could amount to unlawful activity.” Castleberry, 863 F.3d at 267; accord Rite Way, 819 F.3d at 243 (“[Retaliation] claims grounded in isolated comments are not always doomed to summary judgment.“).
Still, we need not decide whether this isolated comment, standing alone, is enough to support a reasonable belief of a Title VII violation because McCall subsequently made numerous additional racist comments in text messages over a period of several months. Though these comments did not directly refer to Kengerski or his grand-niece, the texts started coming “[n]ot long after” Kengerski stood up to McCall for making a racist comment about his grand-niece. Kengerski thus could reasonably believe that McCall‘s texts—particularly those with racist innuendos about black persons—were at least in part directed at him. J.A. at 236; see generally Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (“In addressing a motion for summary judgment, the facts must be viewed in the light most favorable to [the non-moving party], and []he is entitled to every reasonable inference that can be drawn from the record.“). At a minimum, the comments made about other jail employees, at least some of whom Kengerski alleges were also McCall‘s subordinates,
could have bolstered Kengerski‘s reasonable belief that McCall‘s conduct toward him was grounded in racial animosity and сreated a hostile work environment. See Caver v. City of Trenton, 420 F.3d 243, 263-64 (3d Cir. 2005) (although a hostile-work-environment claim may not be maintained “solely by pointing to comments that were directed at other individuals,” “evidence of those comments may be considered in determining whether facially neutral conduct . . . was actually based on [the plaintiff‘s] race“); Moore, 461 F.3d at 345 n.6 (explaining that “racial epithets of which the targets were not aware may well form the basis for a reasonable belief that discrimination has occurred or was occurring“).
We express no view whether McCall‘s conduct would support a hostile-work-environment claim if Kengerski were to bring one. But employees “are not required to collect enough evidence of discrimination to put the discrimination case before a jury before they blow the whistle.” Moore, 461 F.3d at 345. And we will not saddle the reasonable employee with all of the doctrinal twists and turns that a civil rights lawyer would need to navigate. See EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 242 (5th Cir. 2016) (asking whether “an employee . . . not instructed on Title VII law[,] as a jury would be, [could] reasonably believe that she was providing information about a Title VII violation“); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 290 (4th Cir. 2015) (en banc) (Wilkinson, J., concurring in part and dissenting in part) (“An employee is not an expert in hostile work environment law.“); Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981) (holding that “a layperson should not be burdened with the ‘sometimes impossible
reasonable employee in Kengerski‘s shoes could have believed his work environment was hostile.8 We thus vacate the District Court‘s grant of summary judgment relying solely on the first element needed for a prima facie case.
B. The District Court Should Address Causation in the First Instance.
The County asks us to affirm the grant of summary judgment on the alternate ground that Kengerski has not shown a prima facie case of causation, the third element of a retaliation claim. The District Court discussed causation only in a footnote, noting that
[b]ecause the Court finds that Mr. Kengerski cannot demonstrate protected activity, it need not address the issue of causation. That said, there was a seven-month gap between the complaint and termination. Usually, courts will dismiss retaliation claims as a matter of law where there
is such a long gap. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass‘n, 503 F.3d 217, 232 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.“); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (holding five-month time period between complaint and first adverse action insufficient by itself to support inference of causation).
Kengerski, 435 F. Supp. 3d at 676 n.1. Because the District Court did not expressly rule on the causation issue, we “decline to consider [it,] choosing instead to allow that court to consider [it] in the first instance.” Forestal Guarani S.A. v. Daros Int‘l, Inc., 613 F.3d 395, 401 (3d Cir. 2010).9 Of course,
even if Kengerski establishes a prima facie case of retaliation, his claim does not necessarily survive summary judgment, as the Court may then determine whether the County‘s reason for Kengerski‘s firing (mishandling a sexual harassment claim) is legitimate or pretextual. See Moore, 461 F.3d at 342; Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021).10
* * * * *
The crux of a retaliation claim is reasonableness: employees are protected from retaliation whenever they make good-faith comрlaints about conduct in their workplace they reasonably believe violates Title VII. Here, a reasonable employee could believe that McCall created a hostile work environment, in violation of Title VII, by calling Kengerski‘s biracial relative a “monkey” and then sending Kengerski a series of text messages with offensive racial stereotypes. We therefore remand to the District Court to consider whether the County fired him because of his complaint.
employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action,” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015).