Today’s Third Circuit Opinion: “Argued October 28, 2015 (Opinion Filed March 12, 2019)”

Komis v. Secretary of the United States Department of Labor, ___ F.3d ___ (3d Cir. 2019).  This opinion by Judge Scirica today affirmed the result of a jury trial in this Title VII retaliation and retaliatory hostile work environment case.  Judge Scirica encapsulated virtually the entire ruling of the panel in the second paragraph of his opinion:

“This appeal requires us to decide whether federal employees may bring retaliation claims under Title VII.  We conclude they may.  We are then asked to consider whether the same standard governs federal- and private-sector retaliation claims, and what standard in particular applies to a federal retaliatory hostile work environment claim in light of the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).  We need not resolve these questions, however, because Komis cannot prevail under any potentially applicable standard.  Accordingly, any error in the jury instructions was harmless. We will affirm.”

The question of whether federal employees may bring Title VII retaliation claims was made easier by the Government’s agreement that such claims can be brought.  Judge Scirica observed that the Government “does not contest and in fact accepts our longstanding view—shared by every circuit to consider the question—that federal employees may bring claims of retaliation under Title VII.”  He cited those other Circuit Court opinions.  But if there were any remaining doubt about this issue, Judge Scirica noted that Gomez-Perez v. Potter, 553 U.S. 474 (2008), supported the panel’s result as well.  Thus, today’s decision “reaffirm[ed] that federal employees may bring retaliation claims under Title VII.”

The panel went on to rule, as Judge Scirica previewed in the second paragraph of his opinion, quoted above, that any claimed error in the jury instructions was harmless.  Judge Scirica discussed the underlying issues in detail, but determined that it was not necessary to resolve them since plaintiff would lose under any resolution.

This was not a long opinion, and the issues did not appear to be extraordinarily complicated.  There was no indication as to the size of the appellate record.  Still, over forty months elapsed between the oral argument of this appeal and today’s decision.  There are many reasons why that could have occurred, and no fault can necessarily be attributed to Judge Scirica or the other panel members.  Nonetheless, that is an extraordinary length of time for an appellate opinion to be sub judice.  It is worth noting.