Adverse Action Requires Identifiable Employment Harm; Failure to Argue Pretext Forfeits Retaliation Appeal

1. Introduction

In Gwendolyn Rice v. Secretary United States Navy (3d Cir. Dec. 22, 2025) (not precedential), the Third Circuit affirmed summary judgment for the Navy on a longtime civilian employee’s claims of age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) and disability discrimination and retaliation under the Rehabilitation Act.

Rice—who worked for the Navy for roughly forty years and retired in August 2019—alleged that her supervisor’s conduct, including criticisms of her performance, a revised position description (PD), denial of training, and a briefly issued (then rescinded) Notice of Unacceptable Performance (NUP), reflected discriminatory and retaliatory treatment tied to her age and medical conditions and to her complaints/EEO activity.

The central appellate issues were whether Rice identified an actionable adverse employment action for her discrimination claims, whether her retaliation theory established causation, and (critically) whether she addressed pretext after the Navy offered nondiscriminatory reasons.

2. Summary of the Opinion

The Third Circuit affirmed on two principal grounds:

1. Discrimination claims: Rice failed to establish a prima facie case because she did not show an adverse employment action. Even assuming the revised PD could qualify, she did not show circumstances giving rise to an reasonable inference of discrimination.
2. Retaliation claims: Even assuming Rice made a prima facie showing, she did not argue or develop evidence of pretext (Step 3 of the McDonnell Douglas framework) on appeal. The court treated that omission as forfeiture and affirmed summary judgment.

3. Analysis

A. Precedents Cited

1) Summary judgment standards

• AstraZeneca Pharms. v. Sec'y U.S. Dep't of Health & Hum. Servs., 137 F.4th 116, 122 (3d Cir. 2025): Cited for the Third Circuit’s plenary review of summary judgment decisions, applying the same standard as the district court.
• Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986): Cited for what constitutes a “genuine” dispute of material fact—whether a reasonable jury could find for the nonmovant.

2) The McDonnell Douglas framework (discrimination and retaliation)

• McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973): The foundational burden-shifting framework used where the plaintiff lacks direct evidence of discrimination.
• Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir. 2007): Cited for applying McDonnell Douglas to Rehabilitation Act discrimination claims.
• Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam): Cited for applying McDonnell Douglas to ADEA discrimination claims and for the three-step structure: prima facie case → employer’s legitimate reason → plaintiff’s showing of pretext.

3) Defining “adverse employment action” in discrimination cases

• Muldrow v. City of St. Louis, 601 U.S. 346, 354-55 (2024): The court used Muldrow to articulate the controlling requirement that, to be adverse in the discrimination context, the action must cause “some harm respecting an identifiable term or condition of employment.” This framing did significant work in narrowing Rice’s list of alleged wrongs.
• Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998): Cited for classic examples of adverse actions (hiring/firing, failure to promote, reassignment, changes in benefits) and for the proposition that reassignment with different responsibilities can be actionable—used here to analyze whether revising a PD could qualify.

4) Retaliation: elements and causation

• Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006): Cited for the prima facie elements of retaliation: protected activity, adverse action, and causal connection.
• LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007): Cited for the proposition that, “without more,” a three-month gap between protected activity and adverse action cannot alone create an inference of causation—used to cast doubt on Rice’s temporal-proximity theory.

5) Appellate forfeiture for underdeveloped arguments

• In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016): Cited for the rule that arguments not properly developed are forfeited. This case provided the doctrinal basis to affirm the retaliation rulings because Rice did not argue pretext (Step 3) on appeal.

B. Legal Reasoning

1) Discrimination: “adverse employment action” requires real workplace harm

Rice presented multiple events as discriminatory (negative comments, social exclusion, PD revision, PD sent with FMLA paperwork, denial of training, and an NUP). Applying Muldrow v. City of St. Louis, the court treated the key question as whether any challenged act inflicted “some harm” affecting an “identifiable term or condition of employment.”

The court rejected most items as non-actionable because they did not alter employment terms/conditions in a meaningful way: denial of training (as framed on this record), the manner of transmitting the revised PD, and the NUP (which was quickly rescinded) produced “no harm” to an identifiable term or condition of employment. Likewise, inappropriate remarks and coworkers’ negative behavior—while potentially relevant in other doctrinal contexts—were deemed insufficient here to satisfy the adverse-action element.

The court assumed arguendo that the PD revision could be adverse (consistent with Burlington Indus., Inc. v. Ellerth on reassignments), but then held Rice still failed the prima facie case’s inference-of-discrimination element. The context undermined any inference of age/disability animus: Gallagher had proposed revising her PD in 2016, deferred for over two years at her request, revised other employees’ PDs in the meantime, and ultimately revised Rice’s PD only when required by an audit.

Because the court found no prima facie case, it affirmed summary judgment on both the ADEA and Rehabilitation Act discrimination claims without needing to conduct a full pretext analysis.

2) Retaliation: pretext is mandatory once the employer articulates a nondiscriminatory reason

For retaliation, the District Court focused on lack of causation; on appeal, Rice argued temporal proximity between her April 10, 2019 complaint and the June 26, 2019 NUP, asserting Gallagher had not documented earlier performance concerns.

The Third Circuit observed that the record did contain documentation of performance concerns prior to June 26, and it invoked LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n to caution that a three-month gap “without more” does not establish causation. But the panel ultimately did not need to resolve whether Rice’s prima facie showing was adequate.

The decisive move was procedural and burden-shifting: once the Navy articulated nondiscriminatory reasons for issuing the NUP, Sarullo v. U.S. Postal Serv. required Rice to respond at Step 3 with argument and evidence of pretext. Because Rice’s appellate briefing did not address pretext at all, the court held she forfeited that challenge under In re Wettach, and summary judgment was affirmed on the retaliation claims.

C. Impact

Although the disposition is labeled “NOT PRECEDENTIAL” (and thus does not constitute binding circuit precedent), its reasoning is likely to be cited persuasively in future cases—especially in summary judgment briefing—on two recurring themes:

• Post-Muldrow adverse-action discipline: Plaintiffs must link the challenged conduct to a concrete, identifiable harm to the terms or conditions of employment. Workplace slights, friction, or even hostile behavior may be insufficient absent a showing of employment-related consequences.
• Appellate rigor on McDonnell Douglas Step 3: Even if a plaintiff can debate prima facie causation, retaliation claims can still fail if the plaintiff does not meaningfully contest the employer’s stated reasons as pretext—particularly on appeal, where underdeveloped arguments risk forfeiture.

4. Complex Concepts Simplified

• McDonnell Douglas burden shifting: A three-part method used when there is no “smoking gun” evidence. (1) Plaintiff shows basic facts suggesting discrimination/retaliation (prima facie case). (2) Employer gives a legitimate, non-discriminatory explanation. (3) Plaintiff must show that explanation is not the real reason (it is “pretext”).
• Adverse employment action (discrimination): A workplace action that causes real harm to job status, pay, benefits, duties, or other identifiable job conditions—not merely criticism or interpersonal conflict.
• Pretext: Proof that the employer’s stated reason is untrue or not the real reason, often shown through inconsistencies, shifting explanations, unequal treatment of comparators, or other evidence suggesting a discriminatory/retaliatory motive.
• Temporal proximity: Using closeness in time between protected activity (like an EEO complaint) and an employer action to infer retaliation. Third Circuit law (as reflected in LeBoon) limits how far timing alone can go.
• Forfeiture on appeal: If an appellant does not adequately argue an issue in the opening brief, the appellate court may treat it as abandoned and affirm without reaching the merits.

5. Conclusion

The Third Circuit’s decision underscores two practical rules in federal employment cases litigated under McDonnell Douglas: (1) for discrimination claims, plaintiffs must identify an action that causes concrete harm to the terms or conditions of employment, as framed by Muldrow v. City of St. Louis; and (2) for retaliation claims, once the employer supplies a legitimate reason, plaintiffs must squarely argue and support pretext—and failure to do so on appeal can be dispositive forfeiture.