Decisionmaker Knowledge and the Limits of “Protected Activity” in Retaliation Claims: Commentary on Nashyrah Day v. New Jersey Department of Corrections

I. Introduction

This commentary analyzes the Third Circuit’s nonprecedential decision in Sgt. Nashyrah Day v. New Jersey Department of Corrections; Lt. Michelle Brenner, No. 24-2803 (3d Cir. Nov. 17, 2025), in which the court affirmed summary judgment against a corrections sergeant’s retaliation and retaliatory hostile work environment claims under Title VII, the New Jersey Law Against Discrimination (“NJLAD”), and 42 U.S.C. §§ 1981 and 1983.

Although the panel (Chief Judge Chagares, Judge Porter, and Judge Roth, with Judge Porter writing) issued the opinion as “not precedential” under the Third Circuit’s Internal Operating Procedures, the decision offers a clear application—and practical clarification— of several recurring issues in retaliation litigation:

• The central role of decisionmaker knowledge in establishing causation.
• The distinction between a general complaint of unfair treatment and protected activity under Title VII and analogous statutes.
• The difference between the adverse action standard in discrimination cases and the materially adverse action standard in retaliation cases.
• The consequences of forfeiture and waiver—both in the district court (by failing to plead certain adverse acts) and on appeal (by failing to adequately brief a hostile work environment theory).

The case arises from workplace friction between Sgt. Nashyrah Day, a Black female corrections officer at South Woods State Prison, and her supervisor, Lieutenant Michelle Brenner. After disputes over shift trades and attendance at mandatory training, Day filed internal complaints alleging discrimination and retaliation. The New Jersey Department of Corrections (“NJDOC”) in turn issued discipline, including a written reprimand and a twenty-day suspension.

Day sued in federal court, asserting discrimination, retaliation, and hostile work environment theories. While the District Court granted summary judgment on all claims, the appeal focused only on the retaliation-based claims, including a claim for a retaliatory hostile work environment. The Third Circuit affirmed, holding that Day could not establish the causation element of her retaliation claims and had forfeited her retaliatory hostile work environment claim on appeal.

II. Summary of the Opinion

A. Factual Background

Sgt. Nashyrah Day is a Black woman employed as a sergeant at South Woods State Prison. The opinion highlights two central incidents:

1. February 2020 – Shift-trade dispute and reprimand The prison allowed employees to trade shifts. Day’s supervisor, Lt. Brenner, notified Day by email in February 2020 that she would no longer be permitted to trade shifts due to allegedly impermissible overlapping shifts. Day called Brenner about the email; Brenner described Day during that call as “loud and aggressive” and as questioning Brenner’s authority.
   
   Two weeks later, Day filed an internal complaint with the prison’s Equal Employment Division (“EED”), alleging race and gender discrimination and retaliation. Brenner, in turn, filed a disciplinary report alleging multiple instances of insubordination and unprofessional conduct. After an internal investigation, NJDOC issued Day a written reprimand.
2. June 2022 – Mandatory training incident and suspension In June 2022, Day left a mandatory training session early and did not complete it. Day stated that she left to use the restroom and then became sick after being harassed by Brenner and others, causing her to leave work.
   
   On July 6, 2022, Brenner submitted a report regarding the training incident. Later the same day, Day filed another internal EED complaint. After a hearing before a neutral investigating officer (an NJDOC attorney, Lisa Godfrey), NJDOC imposed a twenty-day suspension without pay for failing to complete the training.

B. Procedural History

Day filed a federal lawsuit in the District of New Jersey asserting:

• Race discrimination
• Gender discrimination
• Hostile work environment
• Retaliation

Her claims were brought under:

• Title VII of the Civil Rights Act of 1964,
• The New Jersey Law Against Discrimination (NJLAD), and
• 42 U.S.C. §§ 1981 and 1983.

After discovery, NJDOC moved for summary judgment. The District Court:

• Granted summary judgment on all discrimination claims.
• Later granted summary judgment on all retaliation claims as well.

Day appealed only the order addressing the retaliation claims (including retaliatory hostile work environment).

C. The Third Circuit’s Holding

The Third Circuit held:

1. Retaliation claims (Title VII, NJLAD, §§ 1981 and 1983):
   • Even assuming some of the challenged actions were “materially adverse” under the Burlington Northern standard for retaliation, Day failed to show that those actions were caused by her protected activity.
   • There was no evidence that the relevant decisionmakers (those who issued the reprimand and suspension) knew of her protected conduct when they acted.
   • One alleged adverse action (Brenner’s July 6 report) pre-dated the associated EED complaint, so it could not be retaliatory for that complaint.
   • An internal “special report” by Day complaining that she was being “singled out, harassed, and retaliated against” by Brenner did not constitute protected activity because it did not mention race or other protected characteristics.
2. Retaliatory hostile work environment claim: Day mentioned this claim only in passing on appeal and did not develop arguments addressing the elements. The court deemed the issue forfeited under its jurisprudence governing inadequate briefing.

Accordingly, the Third Circuit affirmed the District Court’s judgment in full.

III. Detailed Analysis

A. Standard of Review and Summary Judgment Principles

The court began by reiterating the familiar standard for reviewing grants of summary judgment:

“We review [a] grant of summary judgment de novo and draw all reasonable inferences in favor of the nonmoving party.” (citing Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 304 (3d Cir. 2020)).

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where:

• There is no genuine dispute as to any material fact; and
• The movant is entitled to judgment as a matter of law.

The opinion restates the standard definitions:

• A dispute is “genuine” if a reasonable factfinder could return a verdict for the nonmoving party (Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)).
• A fact is “material” if it might affect the outcome under governing law (Doe v. Luzerne County, 660 F.3d 169, 175 (3d Cir. 2011)).
• The court’s role is not to decide which side is right but to determine whether there is a triable dispute (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Here, the key issues were not factual disputes about what occurred, but whether the facts, even taken in Day’s favor, could support a legally sufficient retaliation claim.

B. The Retaliation Framework: McDonnell Douglas Applied Broadly

The court applied the familiar McDonnell Douglas burden-shifting framework to Day’s retaliation claims under:

• Title VII,
• NJLAD,
• 42 U.S.C. § 1981, and
• 42 U.S.C. § 1983.

The court cited earlier Third Circuit decisions extending McDonnell Douglas to these various statutes:

• Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001) (Title VII and NJLAD).
• Jones v. School Dist. of Phila., 198 F.3d 403, 410, 415 (3d Cir. 1999) (Title VII and § 1981).
• Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (§ 1983, First Amendment retaliation framework).

Under this approach:

1. The plaintiff must establish a prima facie case of retaliation:
   • She engaged in protected activity under Title VII (or analogous statute);
   • She suffered an adverse employment action (in the retaliation context, a “materially adverse” action under Burlington Northern); and
   • There is a causal connection between the protected activity and the adverse action.
   (citing Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006)).
2. If the plaintiff meets this burden, the employer must articulate a legitimate, non-retaliatory reason for the challenged action (a burden the court calls “relatively light,” citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
3. The burden then shifts back to the plaintiff to show, by a preponderance of the evidence, that the stated reason is a pretext for retaliation (Jones, 198 F.3d at 410).

In this case, the Third Circuit focused on the prima facie case, specifically the causation element, and concluded that Day’s claims collapsed at that threshold stage.

C. Adverse Action in Retaliation: The Burlington Northern Standard

On the second element of the prima facie case—adverse employment action—the court highlighted a common analytical misstep:

“The District Court incorrectly applied the adverse-action standard that applies to discrimination claims, which is more stringent than for retaliation claims. See Burlington, 548 U.S. at 67.”

For retaliation (as opposed to discrimination) claims, the adverse action need not affect the terms and conditions of employment in the traditional sense. Instead, under Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), an action is “materially adverse” if it is:

“[H]armful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.

And materiality is judged from the standpoint of a reasonable person in the plaintiff’s position, considering all the circumstances. Id. at 71.

Day asserted several allegedly adverse actions:

• The April 1, 2020 written reprimand.
• Brenner’s July 6, 2022 report of the June 21, 2022 training incident.
• The August 4, 2022 preliminary notice of a twenty-day suspension.
• The final imposition of the twenty-day unpaid suspension.

The panel explicitly declined to resolve whether these actions were “materially adverse” because the causation element independently defeated the claims. Nonetheless, the discussion reveals some important practical points:

• The court is prepared to treat discipline short of termination (e.g., written reprimands, unpaid suspensions) as potentially materially adverse, depending on their impact.
• The panel’s willingness to bypass the adverse-action question suggests that, for summary judgment purposes, courts may assume arguendo that such discipline is materially adverse and focus instead on evidentiary deficiencies in causation or pretext.

Additional Alleged Adverse Actions and Forfeiture in the District Court

The opinion notes that Day also cited three additional alleged adverse actions:

1. A March 13, 2020 directive that she file reports about two incidents where subordinates accused her of impropriety.
2. A June 29, 2021 “letter of counseling” reminding her to behave professionally.
3. A September 21, 2021 five-day suspension.

But these actions were never alleged in the Second Amended Complaint and appeared for the first time only in Day’s opposition to summary judgment. The Third Circuit agreed with the District Court that any retaliation claims premised on those acts were forfeited, relying on:

• Krouse v. Am. Sterilizer Co., 126 F.3d 494, 499 n.1 (3d Cir. 1997): a complaint must put the defendant on “fair notice” of the claims and their factual basis.
• In re Bestwall LLC, 47 F.4th 233, 242 (3d Cir. 2022): appellate courts generally will not consider arguments not presented below.
• Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 76 (1st Cir. 2016): cited as further support for this principle.

This portion underscores a key practice point: plaintiffs must plead or timely amend to include all adverse acts they intend to rely on. They cannot expand the scope of the case in opposition to summary judgment.

D. Causation and Decisionmaker Knowledge

The central contribution of the opinion lies in its discussion of the causation element in retaliation claims—especially the requirement that the relevant decisionmaker know about the protected activity.

The court acknowledged that plaintiffs can prove causation by a “broad array” of evidence, including:

• Temporal proximity “unusually suggestive” of retaliation,
• A pattern of antagonism, or
• Inconsistent explanations for an adverse action.

(citing Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 260 (3d Cir. 2017)).

But the court emphasized a threshold evidentiary requirement:

“A reasonable jury could not draw an inference of retaliatory motive… where a plaintiff fails to adduce any evidence that the ‘individuals responsible for the adverse action knew of the plaintiff’s protected conduct at the time they acted.’” (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015)).

Applying this to each of the alleged adverse actions:

1. The Written Reprimand (April 1, 2020)

The first allegedly retaliatory action was the written reprimand following the February 2020 phone call with Brenner. Day had filed an EED complaint two weeks after that call, alleging race and gender discrimination and retaliation.

However:

• The record did not establish who exactly decided to issue the reprimand (though Prison Administrator John Powell signed it).
• More importantly, there was no evidence that Powell, or any other decisionmaker involved, knew about Day’s EED complaint when they acted.

Without evidence of knowledge, no reasonable jury could infer a causal connection between the EED complaint and the reprimand.

2. The Preliminary Notice of Suspension (August 4, 2022)

Similar reasoning applied to the preliminary notice of Day’s twenty-day suspension for failing to complete the June 2022 training.

The record showed:

• An associate administrator signed the preliminary suspension notice (the signature was illegible),
• But there was no evidence that the person who authorized or approved the suspension knew of Day’s protected activity (her EED complaints, EEOC charge, or lawsuit).

Again, absent evidence of decisionmaker knowledge, causation fails under Daniels.

3. The Final Twenty-Day Suspension

The final suspension followed a hearing presided over by attorney Lisa Godfrey, a neutral NJDOC officer.

The hearing summary indicated that Godfrey was aware that Day had filed a “special report” describing herself as “being singled out, harassed, and retaliated against by Lt. Brenner.” However:

• The “special report” apparently contained only personal grievances against Brenner.
• It made no reference to discrimination based on race, color, sex, or other protected categories.

Relying on Qin v. Vertex, Inc., 100 F.4th 458, 476 (3d Cir. 2024), the court held that such a report was not protected activity at all:

“Only complaints about discrimination prohibited by Title VII—discrimination based on race, color, religion, sex, or national origin—constitute protected activity.”

Consequently, even though Godfrey may have known that Day was complaining about unfair treatment and “retaliation,” there was no evidence she knew that Day had engaged in legally protected activity under Title VII or NJLAD. The causation element again failed.

4. Brenner’s July 6, 2022 Report of the Training Incident

Day claimed that Brenner filed her July 6, 2022 report about the training incident “after learning that Day had filed” an EED complaint that same day.

The Third Circuit carefully examined the chronology and found this was reversed:

• Day’s July 6, 2022 EED complaint listed Brenner’s July 6 report as the discrimination she was challenging.
• Therefore, Day’s EED complaint came after Brenner’s report.

As a matter of logic and law, Brenner’s report could not be retaliation for a complaint that had not yet been filed.

This illustrates the importance of timeline scrutiny in retaliation claims: temporal proximity can cut both ways—showing either a suspicious closeness in time or, as here, disproving the possibility of retaliation altogether.

E. Defining “Protected Activity”: Not All Complaints Qualify

A particularly significant portion of the opinion is its application of Qin v. Vertex, Inc. to distinguish between:

• Complaints that are legally protected activity, and
• Complaints that are simply grievances about workplace treatment.

Under Qin and settled Title VII jurisprudence:

Only complaints about discrimination prohibited by Title VII—discrimination based on race, color, religion, sex, or national origin—constitute protected activity.

In Day’s case, while she clearly engaged in protected activity by filing:

• Formal EED complaints alleging race and gender discrimination and retaliation,
• An EEOC charge, and
• Her federal lawsuit,

the “special report” she filed internally, which mentioned being “singled out, harassed, and retaliated against” by Brenner, did not qualify. It did not frame the mistreatment as being because of race, gender, or any other protected ground.

This highlights a critical nuance:

• Using the word “retaliation” in an internal complaint is not enough by itself.
• The underlying complaint must reasonably convey that the employee is opposing unlawful discrimination based on a protected characteristic.

For practitioners and employees alike, the opinion underscores the importance of explicitly identifying the protected basis—race, sex, etc.—when reporting discrimination if retaliation protections are to apply.

F. Retaliatory Hostile Work Environment: Forfeiture on Appeal

Day also attempted to appeal the District Court’s grant of summary judgment on her retaliatory hostile work environment claim. The standard for such a claim is articulated in Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006):

To establish a retaliatory hostile work environment, a plaintiff must show: (1) She suffered intentional discrimination because of her protected activity; (2) The discrimination was severe or pervasive; (3) The discrimination detrimentally affected her; (4) It would detrimentally affect a reasonable person in like circumstances; and (5) A basis for employer liability exists.

On appeal, however, Day:

• Referred to the retaliatory hostile work environment theory only in passing, and
• Did not meaningfully argue how the evidence satisfied these elements.

The Third Circuit therefore held that she had forfeited the claim on appeal, citing:

“It is [] well settled, however, that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal.”
— Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).

The lesson is straightforward: to preserve a claim for appellate review, a litigant must develop an argument addressing the governing legal standard and the evidence— mere passing references will not suffice.

G. Impact and Practical Implications

1. Reinforcement of Decisionmaker-Knowledge Requirement

The opinion strongly reinforces the principle that no retaliation claim can stand without evidence that the adverse actor knew of the protected activity. This will influence how:

• Plaintiffs structure discovery (e.g., seeking communications, notices, and testimony showing when particular supervisors learned of complaints), and
• Defendants structure decisionmaking (e.g., ensuring neutral decisionmakers are insulated from knowledge of protected complaints in certain processes).

2. Heightened Attention to the Content of Internal Complaints

By applying Qin to Day’s “special report,” the court underscores that:

• Complaints of being “harassed,” “singled out,” or “retaliated against” are not automatically protected.
• Employees must tie the unfair treatment to a protected characteristic (race, sex, etc.) to trigger Title VII’s anti-retaliation protections.

Employers, conversely, gain some clarity and comfort that:

• Generic workplace complaints or disputes do not automatically place them under the heightened scrutiny of anti-retaliation law.

3. Procedural Discipline: Pleading and Appellate Briefing

The opinion is also a procedural cautionary tale:

• At the trial level, all alleged adverse actions must be disclosed in the complaint (or by leave to amend). Raising new alleged retaliatory acts at summary judgment is not sufficient to preserve those theories.
• On appeal, issues must be fully briefed. Courts will treat an issue as forfeited when they see only “casual mention” without substantive argument, case law, or application of facts to the governing test.

4. Persuasive Value Despite Nonprecedential Status

Although the panel designates the opinion as “not precedential” under Third Circuit I.O.P. 5.7, it remains:

• Persuasive authority within the Third Circuit, particularly on the application of Daniels (decisionmaker knowledge), Qin (scope of protected activity), and Burlington Northern (retaliation standard).
• A practical guide for district courts and practitioners on the interplay between internal complaint mechanisms (like EED), disciplinary processes, and retaliation doctrine.

IV. Complex Concepts Simplified

1. What Is “Summary Judgment”?

Summary judgment is a procedure where the court decides a case—or part of a case—without a full trial if there is no real dispute about the important facts and one side is clearly entitled to win under the law.

The judge assumes, for purposes of the motion, that the non-moving party’s version of the facts is true (or at least that any reasonable inference from them is drawn in that party’s favor). The question is: even if we accept your version of events, could a jury reasonably find in your favor? If the answer is no, summary judgment is granted.

2. What Is “Protected Activity” in Retaliation Law?

Under Title VII and similar laws, an employee engages in protected activity when they:

• Oppose a practice they reasonably believe is unlawful discrimination (e.g., report race or sex discrimination internally), or
• Participate in a proceeding involving such discrimination (e.g., filing an EEOC charge, testifying, filing a lawsuit).

Importantly, the complaint must be about discrimination based on a protected characteristic—such as race, color, religion, sex, or national origin. Complaints about general unfairness, personality conflicts, or management style are not protected unless they are tied to one of these protected categories.

3. What Is a “Materially Adverse Action” in Retaliation Claims?

For retaliation (not discrimination) claims, an employer’s action is “materially adverse” if:

It could well dissuade a reasonable worker from making or supporting a charge of discrimination.

This is a broader standard than the one used for discrimination claims. It can include:

• Termination, demotion, or pay cuts,
• Unpaid suspensions,
• Significant changes in work duties or conditions, and
• Other actions that would reasonably deter someone from complaining (depending on the context).

4. What Does “Causation” Mean in Retaliation Cases?

To prove causation, a plaintiff must show a link between the protected activity and the adverse action—i.e., that the employer acted because of the complaint or participation.

Evidence of causation can include:

• The adverse action happening very soon after the complaint.
• A pattern of hostility after the complaint.
• Shifting or inconsistent explanations by the employer.

But a baseline requirement is that the decisionmaker must know about the protected activity. An employer (or supervisor) cannot retaliate against an employee for something they did not know the employee had done.

5. What Is “Pretext”?

When an employer gives a reason for an adverse action, the plaintiff can try to show that this reason is a pretext—that is, not the real reason, but a cover for retaliation or discrimination.

Evidence of pretext might show:

• The stated reason has no basis in fact.
• The reason did not actually motivate the decision.
• The reason is insufficient to explain the decision, especially compared to how others were treated in similar situations.

In Day, the court never reached this stage because the prima facie case failed at the causation element.

6. What Is a “Retaliatory Hostile Work Environment”?

A retaliatory hostile work environment occurs when an employer responds to an employee’s protected activity (like a discrimination complaint) by subjecting them to a work environment that is:

• Severe or pervasive enough to alter the conditions of employment, and
• Linked to the employee’s protected activity (i.e., the hostility is because they complained).

The standard is similar to a traditional hostile work environment claim but the motivating factor is the protected activity, not the employee’s membership in a protected class.

V. Conclusion: Key Takeaways

Nashyrah Day v. New Jersey Department of Corrections, though nonprecedential, offers several important lessons for retaliation litigation:

1. Decisionmaker Knowledge is Critical. Plaintiffs must present evidence that the individuals who imposed discipline or other adverse actions knew about the protected activity. Without that knowledge, retaliation claims cannot survive summary judgment.
2. Not All Complaints Are Protected Activity. Internal complaints or “special reports” that allege unfair treatment, harassment, or “retaliation” are not protected unless they reasonably indicate that the conduct is based on race, sex, or another protected characteristic. The opinion, drawing on Qin v. Vertex, reinforces the need to explicitly connect such complaints to protected categories.
3. Retaliation Adverse Action Standard is Broader, but Still Must Be Significant. While the Third Circuit declined to resolve exactly which of Day’s alleged harms were “materially adverse,” the opinion reflects the Burlington Northern framework and hints that many forms of formal discipline may qualify, depending on context.
4. Timing Matters—In Both Directions. Temporal proximity can support causation, but here the chronology undercut Day’s claim: Brenner’s report preceded the EED complaint that Day claimed it was retaliating against.
5. Procedural Discipline is Essential. Plaintiffs must:
   • Plead all adverse actions in the complaint or properly amend; and
   • Fully brief all claims and theories on appeal.
   Failure to do so leads to forfeiture, as seen in the unpled adverse actions and the inadequately briefed retaliatory hostile work environment claim.
6. Neutral Decisionmakers and Internal Processes Matter. The use of a neutral hearing officer (Lisa Godfrey) with no demonstrated awareness of protected activity, and whose knowledge was limited to non–Title VII complaints, weighed against Day’s retaliation theories. Employers can take note of the value of maintaining truly neutral decisionmakers and clear documentation.

In sum, the decision in Day does not break new doctrinal ground, but it offers a concise and instructive application of core retaliation principles: knowledge, causation, the content of protected activity, and procedural rigor. For litigants and practitioners, it serves as a detailed reminder that retaliation claims live or die on clear, well-documented links between protected activity and specific adverse decisions—and on disciplined pleading and briefing practices.