NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1426
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HARRY WATKINS,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-20-cv-00597)
District Judge: Honorable Nora Barry Fischer
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 7, 2023
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Before: CHAGARES, Chief Judge, HARDIMAN and MONTGOMERY-REEVES,
Circuit Judges
(Opinion filed: September 12, 2023)
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OPINION *
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
CHAGARES, Chief Judge.
Harry Watkins filed a lawsuit against the Pennsylvania Department of Corrections
(“DOC”), claiming that he was subjected to a hostile work environment in retaliation for
protected activity. The District Court granted summary judgment in favor of the DOC.
For the reasons explained below, we will affirm the judgment of the District Court.
I.
We write solely for the parties and so recite only the facts necessary to our
disposition. Watkins began working for the DOC at the State Correctional Institution at
Mercer (“SCI Mercer”) as a trainee in 2008. A year later, he became a corrections
officer. He served as president of the local union from 2017 to 2019. He remains
employed as a corrections officer at the facility.
In his capacity with the union, Watkins was deposed in November 2018 on behalf
of a female employee who had filed a Title VII lawsuit against the DOC. Watkins’s wife
applied to work at SCI Mercer that same month, but it took a year and a half for her to
receive an official offer. Watkins filed his first of five complaints with the Equal
Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”) on June 7, 2019, while his wife’s hiring process was ongoing. In
his first complaint, Watkins alleged that the DOC’s treatment of his wife’s job
application was retaliation for his deposition.
Watkins filed a second complaint with the EEOC and PHRC on July 19, 2019,
alleging that a series of events in June 2019 was retaliation for filing his first complaint.
He claimed that because he filed his first complaint, he was re-assigned to an unfavorable
2
block; he received a disappointing performance evaluation; he was told that he could no
longer speak with trainees about the union while he was on duty; and he was subjected to
threats from Lieutenant James Johnson, including that he “can make his life hell.”
Appendix (“App.”) 413.
Watkins contends that he was disciplined formally for abandoning his post in late
June 2019, just before he filed his second complaint. Watkins claims that, five days after
filing that complaint, Johnson falsely accused him of again abandoning his post, an
incident which led to no discipline, although Watkins “did not recall the specifics of what
occurred.” Watkins Br. 9. Watkins filed a third complaint with the EEOC and PHRC on
August 5, 2019. He alleged that the formal discipline for abandoning his post and the
false accusation of again abandoning his post were retaliation for filing his second
complaint.
A few months later, Johnson left a voicemail for Brian Muszynski, another
corrections officer. Watkins claims that Johnson’s voicemail stated that Muszynski was
needed in the yard because only females and Watkins, who had “no testosterone,” were
out there. App. 142–43. Watkins further contends that a few weeks later, Muszynski
played the voicemail to other co-workers. The next month, Watkins received an email
from a unit manager, claiming that he did not conduct cell inspections during a prior
shift. Watkins sent the manager a copy of the logbook entries indicating that he had
completed the inspections; no further action was taken on the matter. Watkins filed his
fourth complaint with the EEOC and PHRC on February 10, 2020, alleging that
Johnson’s voicemail and the cell inspection email were retaliation for filing his third
3
complaint.
Two months later, Watkins injured his arm on the job. He was cleared to return to
work on light duty a few weeks later. Watkins claims that instead of assigning him to
one of the existing light duty posts, the DOC created a new position for him. That
position, according to Watkins, required him either to “stare[] at a wall all night” or to
perform work involving inmate contact or use of his injured arm in violation of the light
duty restrictions. App. 173. Watkins then filed his fifth complaint with the EEOC and
PHRC, alleging that his light duty assignment was retaliation for filing his fourth
complaint.
Watkins contends that the retaliation continued after he filed his fifth complaint.
From September 1, 2020 through at least February 5, 2021 — the date of his deposition
in this lawsuit — Watkins claims that he experienced an increase in payroll errors,
leading to the loss of an estimated “couple thousand dollars.” App. 183–84. Watkins
does not claim to have filed any additional complaints with the EEOC or PHRC.
In his operative complaint in this lawsuit, Watkins raises two counts of Title VII
retaliatory hostile work environment based on the events underlying and subsequent to
his five complaints to the EEOC and PHRC. 1 The District Court granted summary
judgment to the DOC, and Watkins timely appealed.
1
Watkins also raised one count of Title VII retaliation based on the DOC’s treatment of
his wife’s job application. Watkins later withdrew that claim and the District Court
entered judgment in the DOC’s favor.
4
II. 2
Title VII prohibits retaliation on the basis of protected conduct. 42 U.S.C. §
2000e-3(a). Under that provision, employees may bring claims of a retaliatory hostile
work environment. Komis v. Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 293 (3d Cir.
2019). To survive summary judgment, an employee alleging a retaliatory hostile work
environment must prove that: “(1) [H]e suffered intentional discrimination because of
[his] protected activity; (2) the discrimination was severe or pervasive; (3) the
discrimination detrimentally affected h[im]; (4) it would have detrimentally affected a
reasonable person in like circumstances; and (5) a basis for employer liability is present.”
Id. (citation omitted). The District Court held that Watkins failed to prove the first
element as to most of the alleged acts of retaliation and the second element as to all acts. 3
We agree.
A.
Most of Watkins’s claims fail because he did not establish that he suffered
intentional discrimination because of his protected activity. The parties do not dispute
that Watkins’s five complaints to the EEOC and PHRC constitute protected activity. But
to prove a causal connection between the alleged retaliation and the protected activity,
2
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have appellate
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary
judgment de novo. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000). Summary
judgment is appropriate if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
3
Because Watkins’s claims fail under first two elements, we decline to consider the
District Court’s holding on the fifth element.
5
Watkins needs “some evidence that the individuals responsible for the [retaliation] knew
of the plaintiff’s protected conduct at the time they acted.” Daniels v. Sch. Dist. of Phila.,
776 F.3d 181, 196 (3d Cir. 2015); see also Ambrose v. Twp. of Robinson, 303 F.3d 488,
493 (3d Cir. 2002). Watkins failed to make that basic showing as to most of the alleged
acts of retaliation.
Watkins’s main argument is that those responsible knew because “[e]verybody
knows” and “there’s no secrets in jail.” App 122. But on summary judgment, “the
nonmoving party must affirmatively show where in the record there exists a genuine
dispute over a material fact” and “speculation and conjecture may not defeat a motion for
summary judgment.” Wharton v. Danberg, 854 F.3d 234, 244 (3d Cir. 2017) (cleaned
up). Watkins’s assertions do not overcome that burden. 4
Several of Watkins’s more specific allegations of knowledge fare no better. The
District Court reviewed the record in detail and rightly concluded that Watkins had not
presented any evidence that those responsible for the alleged retaliation following his first
and fifth EEOC complaints knew about the protected activity. On appeal, Watkins does
not address those detailed conclusions and we see no reason to disturb them.
With respect to the unit manager’s email about cell inspections, Watkins fails to
identify any evidence about what made the manager write the e-mail in the first place and
4
Watkins also argues that courts should not “expect those accused of retaliatory conduct
to admit to knowledge of protected activity when denying it shields them from liability.”
Watkins Br. 21. Although we recognize that individuals are unlikely either to “admit
discriminatory animus or leave a paper trail demonstrating it,” Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (citation omitted), that fact alone does
not excuse a plaintiff from meeting his burden at summary judgment.
6
whether she violated protocol when she did not check the logbook entries before sending
it. That lack of evidence — combined with the fact that no action was taken once
Watkins informed the manager that he had inspected the cells — belies Watkins’s
contention that the email was sent because he had filed his third complaint. And as to the
creation of the light duty post, Watkins argues that “it is more than reasonable to assume
that the only entities with the authority to create a position out of thin air would be the
HR office and the Superintendent.” Watkins Br. 29. While human resources (“HR”) and
the superintendent knew about his complaints, Watkins does not identify any evidence —
or cite to the record at all — to support his inference that HR or the superintendent were
involved in the creation of the assignment. Without any evidence about who was
responsible for the purported retaliation, Watkins cannot show that those responsible
knew about the protected activity.
Watkins has met the knowledge requirement with respect to some of the purported
retaliation involving Johnson and the payroll errors. We can infer that an individual
knows about a complaint to the EEOC or PHRC when “it contain[s] specific allegations
against them.” Daniels, 776 F.3d at 197. Watkins’s second complaint names Johnson,
among other DOC employees. Johnson’s alleged false accusation that Watkins
abandoned his post and his voicemail claiming Watkins lacked testosterone occurred
after this complaint was filed. 5 The same holds true for Watkins’s claims regarding the
5
Watkins also alleges that Johnson told another officer that he “can make [Watkins’s]
life hell,” App. 413, but that incident occurred before Watkins filed his second complaint
naming Johnson. It thus does not support an inference that Johnson knew about Watkins
protected activity at the time of the alleged threat.
7
purported payroll errors, since each of his five complaints were faxed to HR and the
payroll errors allegedly started increasing in frequency about a month after he filed the
fifth complaint. Because we can infer that both Johnson and personnel in HR were aware
of the complaints prior to their alleged retaliatory actions, Watkins has done enough to
show knowledge with respect to those actions.
In sum, Watkins cannot prove most of the acts of retaliation occurred because of
his protected conduct — the first element of a retaliatory hostile work environment claim.
He did, however, make the minimal showing of knowledge as to Johnson’s purportedly
false accusation that he abandoned his post, Johnson’s “no testosterone” voicemail, and
the alleged payroll errors. 6
B.
The remaining alleged instances of retaliation — Johnson’s accusation that
Watkins abandoned his post, the “no testosterone” voicemail, and the alleged payroll
errors — are not severe or pervasive. To show that the retaliation was severe or
pervasive, Watkins must prove his workplace was “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working environment.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (cleaned up). But “‘offhand[]
comments and isolated incidents (unless extremely serious)’ are not sufficient to sustain a
6
Proof of knowledge may not be enough on its own to establish the requisite causal
connection. But because Watkins has not met his burden to show a triable issue on the
second element as to those acts of retaliation, we need not consider the first element
further.
8
hostile work environment claim.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.
2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). In
considering whether the retaliation was severe or pervasive, “we consider the totality of
the circumstances,” and our analysis “must concentrate not on individual incidents, but
on the overall scenario.” Id. at 262–63 (cleaned up). 7
Watkins did not produce any evidence about Johnson’s purportedly false
accusation that he abandoned his post, and so we cannot conclude that the incident was
severe or pervasive. He relies only on the allegations in the operative complaint, which
are insufficient on their own to survive summary judgment. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Johnson’s purported voicemail stating that Watkins had “no
testosterone,” App. 143, meanwhile, is just the sort of taunt that has been held to be
insufficiently severe or pervasive to be actionable. Faragher, 524 U.S. at 788. And the
fact that the comment was not made directly to Watkins further supports that it is the type
of “offhand[] comment[] . . . that the Supreme Court . . . cautioned should not be
considered severe or pervasive enough to constitute a hostile work environment.” Caver,
420 F.3d at 263 (citations omitted).
The payroll errors also do not rise to the level of severe or pervasive. Though
Watkins claims he experienced an increase in errors for several months, it is unclear
7
Watkins argues that the District Court erred because it “analyzed each incident of
alleged conduct separately,” when it was supposed to consider the totality of the
circumstances. Watkins Br. 31. But that contention is contradicted by the District
Court’s well-reasoned opinion, which analyzed the conduct both individually and
together.
9
whether Watkins himself took the issue seriously, as he did not call the listed number to
try and resolve the problem. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993)
(“[I]f the victim does not subjectively perceive the environment to be abusive, the
conduct has not actually altered the conditions of the victim’s employment, and there is
no Title VII violation.”). He also did not identify any evidence about the nature of the
alleged errors, and we are left with nothing but his blanket assertion that the frequency of
those errors increased. With such a bare record, we cannot conclude that the errors were
severe or pervasive.
Taken together, the incidents are not of the sort that we have found to constitute
retaliation that is sufficiently severe or pervasive to create a hostile work environment.
Looking at “all the circumstances,” the “frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance,”
Harris, 510 U.S. at 23, a reasonable juror could not conclude that the retaliation Watkins
purportedly experienced was severe or pervasive. 8
In sum, none of the purported retaliation was severe or pervasive. Watkins’s
hostile work environment claim accordingly fails in its entirety on the second element.
8
Our conclusion remains the same when we consider the other instances of retaliation
Watkins alleged, including those for which he did not prove that the responsible
individuals knew about his protected activity. Watkins has not established that a
reasonable juror could find any of the alleged retaliation — whether individually or taken
together — to be sufficiently severe or pervasive in light of the totality of the
circumstances.
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III.
For the foregoing reasons, we will affirm the judgment of the District Court.
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