NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2714 ______________

SEAN T. FRIEL,

Appellant

v.

STEVEN T. MNUCHIN, Secretary of the Treasury, Department of the Treasury, Internal Revenue Service Agency ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 2-19-cv-02559) United States District Judge: Honorable Timothy J. Savage ______________

Submitted under Third Circuit L.A.R. 34.1(a) October 26, 2021

BEFORE: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges

(Filed: December 28, 2021) ______________

OPINION* ______________

COWEN, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Plaintiff Sean T. Friel appeals from the order of the United States District Court

for the Eastern District of Pennsylvania granting the motion for summary judgment filed

by Defendant Secretary of the Treasury.1 We will affirm.

I.

Friel has worked for the IRS since 2002. This case arose out of a consensual

romantic relationship that Friel had with Claudia Hernandez, an IRS supervisor. When

Friel began dating Hernandez, she was married to Nader Goudarzi, a supervisor

employed in a different unit of the IRS. Friel alleged that, as a result of this relationship,

he was the victim of sex discrimination under Title VII, see 42 U.S.C. § 2000e, et seq.

Specifically, he complained of disparate treatment and a hostile work environment, and

he also asserted that he was targeted for retaliation on account of his complaints of

unlawful discrimination.

The IRS moved for summary judgment, and the District Court granted its motion.

According to the District Court:

Friel has not established a link between any non-sexual harassment and sex discrimination. Nor has he made out a prima facie case of sex discrimination or retaliation. Even if he had made out a prima facie case of retaliation, the IRS is entitled to judgment because it has articulated a legitimate, non-discriminatory reason for his suspension and denial of a performance award which Friel has not rebutted with evidence of pretext. Friel has also not shown severe or pervasive sexual harassment rising to the level of a hostile work environment. Therefore, we shall grant the motion for summary judgment.

1 Steven T. Mnuchin was the Secretary of the Treasury when the case was filed and decided in the District Court. Janet L. Yellen now holds this position and is automatically substituted as the nominal party. Fed. R. App. P. 43(c)(2). Like the District Court, we refer to the Defendant as the Internal Revenue Service (“IRS”). 2 Friel v. Mnuchin,

, 681 (E.D. Pa. 2020).

II.

In its thorough and well-reasoned memorandum opinion, the District Court

determined that Friel had failed to make out a prima facie case of disparate treatment

based on sex under McDonnell Douglas.2 According to the District Court, he did not

establish that nonmembers of the protected class were treated more favorably under

circumstances giving rise to an inference of unlawful discrimination, see, e.g., Jones v.

Se. Pa. Transp. Auth.,

(3d Cir. 2015), because “[h]e has not shown that

the employment actions were gender-based and that women in the same circumstances

were treated more favorably,” Friel, 474 F. Supp. 3d at 687. With respect to Friel’s

hostile work environment claim, the District Court likewise concluded that (with one

exception) Friel “points to no evidence demonstrating that his gender was a factor in the

treatment he claims” to have suffered. Id. at 693; see also, e.g., Moody v. Atl. City Bd.

of Educ.,

(3d Cir. 2017) (stating that, to succeed on hostile work

environment claim, plaintiff must establish that employee suffered intentional

discrimination because of his or her sex). Although he did cite a single instance of any

unwanted overture (i.e., shortly after he had broken up with Hernandez, she tugged on his

2 The District Court had subject matter jurisdiction over this discrimination action filed by a federal employee under

and 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-16(d). We have appellate jurisdiction under

. We exercise plenary review over a district court’s summary judgment ruling. See, e.g., Blunt v. Lower Merion Sch. Dist.,

(3d Cir. 2014). “The court shall grant summary judgment if the movant shows that 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 shirt and suggested that they should get back together), the District Court determined that

no reasonable jury could find that this single isolated incident, which was brief, non-

threatening, and did not interfere with Friel’s work, was sufficient to create an objectively

hostile work environment. See, e.g., Caver v. City of Trenton,

(3d

Cir. 2005) (stating that isolated or single incident of harassment unless extremely serious

does not establish hostile work environment and that, in determining whether conduct is

sufficiently severe, totality of circumstances must be considered).

We agree with the District Court’s disposition of Friel’s disparate treatment and

hostile work environment claims. Emphasizing the Supreme Court’s recent ruling in

Bostock v. Clayton County,

(2020), Friel attacks the District Court’s

determination that his treatment was not due to his sex. He insists that “[a]ll of the

harassment [and disparate treatment] that he suffered was due to the relationship that he

had with a supervisor and was grounded in his sex.” (Appellant’s Brief at 13.)

According to Friel, “[t]here would have been no relationship were it not for his gender.”

(Id.) We observe that Bostock decided that “[a]n employer who fires an individual for

being homosexual or transgender fires that person for traits or actions it would not have

questioned in members of a different sex.”

. “Sex plays a necessary and

undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme

Court confirmed that there are “countless [cases] where Title VII has nothing to say.”

; see also, e.g., Burlington N. & Santa Fe Ry. Co. v. White,

(2006) (recognizing that Title VII does not create general civility code for workplace).

“[A] but-for test directs us to change one thing at a time and see if the outcome changes.

4 If it does, we have found a but-for cause.” Bostock,

. As the District

Court explained, “[t]here is no evidence that had Friel been female in a relationship with

Hernandez, he would have been treated differently.” Friel, 474 F. Supp. 3d at 693. “No

reasonable jury could conclude that these actions were motivated by Friel’s gender and

that a woman in his place would have been treated differently.” Id. In fact, Friel’s

counsel acknowledged during oral argument before the District Court that changing

gender or sexual orientation would make no difference in this case.3 (See, e.g., JA425-

JA426 (indicating that he could not deny even though he wished he could that “Goudarzi

would have probably reacted the same way whether it be a man or a woman with whom

his wife was having an affair”).) Friel also “concedes that there was only a single

incident that could be characterized specifically as sexual harassment and that it, standing

alone, would not establish a hostile work environment.” (Appellant’s Brief at 23; see

also e.g., JA100 (Friel testifying that no one other than Hernandez sexually harassed

him).)

In order to establish a prima facie claim of retaliation under Title VII, Friel must

demonstrate that he engaged in protected activity under the statute, his employer took an

adverse employment action against him either contemporaneous with or after the

protected activity, and there is a causal connection between the protected activity and the

adverse employment action. See, e.g., Moore v. City of Philadelphia,

, 340-

41 (3d Cir. 2006). According to the IRS and the District Court, Friel asserted “five

3 We note that the District Court thereby did not ignore the Supreme Court’s Bostock opinion, which was decided after the parties had briefed the summary judgment motion. On the contrary, it was specifically addressed at oral argument. 5 adverse employment actions”: “(1) denial of his shift change requests; (2) the counseling

memo that resulted from Hernandez’s accusations; (3) the lower annual performance

review; (4) a lack of promotion; and (5) suspension resulting in award ineligibility.”

Friel, 474 F. Supp. at 3d at 688 (noting that Friel did not contest IRS’s characterization of

his allegations).

With respect to the 2015 shift change, the February 10, 2016 counseling memo,

and the performance evaluation (signed by Friel’s supervisor on May 9, 2016), we agree

with the District Court that they all pre-dated his protected activity. Friel contends that

his protected activity began in late 2015 or early 2016, but he also acknowledges that he

had received his desired work schedule in June 2015. In fact, he testified that “the shift

changes started before the prior protected activity.” (JA127.) “Friel engaged in protected

activity when he filed EEO complaints on August 24, 2016, September 7, 2017 and

November 7, 2018.”

(citing JA198-JA205, JA208-JA219, JA220-JA231). The IRS

acknowledges that the record showed that he first received EEO counseling from

Adrienne Taylor on May 10, 2016, and, as part of this counseling, he complained about

the evaluation he had just received.4 In turn, the District Court correctly observed that

Friel did not allege gender or other unlawful discrimination under Title VII in the

complaints to TIGTA [the United States Treasury Inspector General for Tax

Administration] and Hernandez (his romantic partner). See, e.g., Slagle v. Cty. of

4 At his deposition, Friel said that he had first met with an EEO counselor named Michael Bailey some time in 2016. But “there is no documentation in the record of Friel’s interactions with Bailey to show that he raised Title VII claims, as opposed to the many non-Title VII accusations Friel has asserted.” (Appellee’s Brief at 35-36 n.7.) 6 Clarion,

(3d Cir. 2006) (stating that Title VII’s anti-retaliation

provision does not apply to any charge, regardless of its content, vague allegations of

“civil rights” violations do not meet low bar for participation, and plaintiff must “allege

in the charge that his or her employer violated Title VII by discriminating against him or

her on the basis of race, color, religion, sex, or national origin, in any manner.”).

Similarly, the District Court appropriately concluded that the counseling memo,

the performance evaluation, and any supposed failure to “promote” did not rise to the

level of an adverse employment action. “In the present context that means that the

employer’s actions must be harmful to the point that they could well dissuade a

reasonable worker from making or supporting a charge of discrimination.” Burlington

N.,

; see also, e.g.,

(stating that employee’s decision to report

allegedly discriminatory behavior cannot immunize that employee from those petty

slights or minor annoyances that often take place at work). As the District Court

explained, the counseling memo was only “advisory” in nature and merely warned of

possible future consequences if Friel engaged in similar conduct in the future. Friel’s

overall performance score also did not change from 2015 to 2016 (his scores in two

categories went down while the scores in two other categories increased). In fact, Friel

received the same time-off award in 2016 as he had the previous year. With respect to

“promotion,” Friel admitted at his deposition that he had received all the grade and step

increases to which he was entitled, and there was no evidence indicating that he had

received these increases at a slower rate on account of any protected activity.

Finally, we agree with the District Court that, “[a]lthough the suspension was an

7 adverse employment action, Friel has not shown that it was causally connected to any

protected activity.” Friel, 474 F. Supp. 3d at 690. It also appropriately concluded that,

even if Friel had shown a causal connection, the IRS articulated a legitimate, non-

discriminatory reason for his suspension that Friel did not challenge with evidence of

pretext. See, e.g., Moore,

. “[Friel] first met with an EEO counselor in

May 2016,” but he was not suspended until September 2018, “two years and four months

later.” Friel, 474 F. Supp. 3d at 690; see also, e.g., Clark Cty. Sch. Dist. v. Breeden,

(2001) (“The cases that accept mere temporal proximity between an

employer’s knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case uniformly hold that the

temporal proximity must be ‘very close’ . . . Action taken (as here) 20 months later

suggests, by itself, no causality at all.” (citations omitted)). Additionally, “Friel was

suspended for making unprofessional, inappropriate and threatening comments to Special

Agent Vandiehl, the IRS Commissioner, and several supervisors.” Friel, 474 F. Supp. 3d

at 690 (citing JA71-JA72). Friel acknowledged that it is IRS policy to deny performance

awards to suspended employees, and there was no evidence in the record that the

executive panel members who ruled that he was not entitled to any exception were aware

of his protected activity.

III.

For the foregoing reasons, we will affirm the order of the District Court.

8