                                                                    NOT PRECEDENTIAL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
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.




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