Jason Malakoski v. Merrick Garland

• Court: Court of Appeals for the Third Circuit
• Decided: March 3, 2026
• Docket: 25-1521
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 25-1521 ___________

JASON MALAKOSKI, Appellant

v.

MERRICK B. GARLAND, Attorney General United States Department of Justice ____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:22-cv-00977) District Judge: Honorable Joseph F. Saporito, Junior ____________

Submitted Under Third Circuit L.A.R. 34.1(a) February 2, 2026

Before: HARDIMAN, MONTGOMERY-REEVES, and ROTH, Circuit Judges.

(Filed: March 3, 2026)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Jason Malakoski appeals a summary judgment for the United States on his Title

VII claims. We will affirm.

I

Malakoski has worked for the Bureau of Prisons (BOP) for almost fifteen years.

During the time relevant to this appeal, he was employed at the Federal Correctional

Institution (FCI) Schuylkill as a Supervisory Correctional Officer. From May 2019

through August 2021, Malakoski was involved in various internal investigations, either as

the subject or the complainant. In November 2019 and April 2021, Malakoski filed

formal complaints with the BOP Equal Employment Opportunity (EEO) Office.

After the EEO Office failed to issue a final agency decision regarding either

complaint, Malakoski filed a federal civil action against the Attorney General in June

2022. In that two-count complaint, Malakoski alleged that the BOP violated Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and Section 501 of the

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Malakoski also alleged that the BOP

retaliated against him by creating a hostile work environment in violation of both Acts.

The District Court granted summary judgment to the Government on all claims.

Malakoski filed this appeal challenging the judgment only as to the Title VII violations

relating to the conduct challenged in his first EEO complaint.1

1 Malakoski purports to challenge the District Court’s summary judgment relating to his second EEO complaint. But the District Court held that Malakoski failed to exhaust administrative remedies by filing his second EEO complaint two days late. Because Malakoski failed to challenge the District Court’s holding, we will not review any 2 II2

A

Malakoski argues that the District Court erred when it held that the BOP did not

retaliate against him in violation of Title VII. He contends that there was a genuine issue

of material fact as to whether: (1) the BOP’s conduct constituted adverse employment

actions and (2) those actions were causally connected to any protected activity. We agree

with the District Court that Malakoski failed to demonstrate a prima facie case for his

Title VII retaliation claims.

In September 2019, Malakoski sustained a non-workplace injury, was off work,

and then returned with a doctor’s note confirming that he could work without restrictions.

He admits that he never submitted a written request for light-duty status but contends that

he contacted his supervisor “as to the possibility of returning to work with a light duty

restriction” and was told that option was not available. App. 774. The next month,

Malakoski was told that his prior request for a lateral transfer to the United States

Penitentiary Lewisburg was denied.

Neither of those two actions can serve as a valid basis for Malakoski’s retaliation

claims for a simple reason: they occurred before he spoke with an EEO counselor on

October 25, 2019. See Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir.

argument regarding that complaint. 2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Cat Internet Servs., Inc. v. Providence Washington Ins. Co., 333 F.3d 138, 141 (3d Cir. 2003).

3 2006), as amended (Sept. 13, 2006) (stating that Title VII protects those who participate

in certain Title VII proceedings).3

Malakoski also points to his October 2019 reassignment to the communication

monitoring room following an allegation that he threatened another employee and his

supervisor’s November 2019 denial of his request to switch his shift. These incidents are

unavailing to Malakoski because a four-day reassignment—while retaining position,

grade, step, and salary— and a denial of one request to switch his shift are not actions

that “well might have dissuaded a reasonable worker from” engaging in protected

activity, even if his ability to work overtime and receive pay differential was reduced. See

Moore, 461 F.3d at 346 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006)). So his retaliation claim also fails with regard to these incidents.

Finally, Malakoski cites a February 2020 reassignment after a use of force incident

involving an inmate and an internal investigation that followed. The investigation

concluded that Malakoski failed to follow policy as it applies to use of force and

application of restraints. As a result of the incident, Malakoski was reassigned to the

computer laboratory and maintained his position, grade, step, and salary. Even assuming

this constituted an adverse employment action, Malakoski’s claim still fails because the

BOP has “articulate[d] some legitimate, nondiscriminatory reason,” McDonnell Douglas

3 Malakoski contends that the BOP was acting in retaliation for a memorandum that he submitted in May 2019 regarding allegations that a colleague made inappropriate sexual comments about Malakoski’s wife. But that memorandum is not protected activity because it had nothing to do with potentially unlawful activity under Title VII. See Moore, 461 F.3d at 341. 4 Corp. v. Green, 411 U.S. 792, 802 (1973), for its employment action. The temporary

reassignment was in response to the use-of-force incident and allowed the BOP to

conduct an after-action review to assess Malakoski’s compliance with policy and

procedure. Like the District Court, we conclude that Malakoski has presented no

evidence to show this explanation was pretextual. McDonnell Douglas, 411 U.S. at 804.

B

Malakoski’s Title VII hostile work environment claims fail as well. Considering

the totality of the circumstances, Malakoski did not demonstrate that he suffered

intentional discrimination because of his protected activity and that the conduct was

severe or pervasive. See, e.g., Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168 (3d

Cir. 2013) (holding that the challenged conduct must be evaluated in light of its

frequency, severity, and whether it “unreasonably interfere[d] with an employee’s work

performance”).

***

For the foregoing reasons, we will affirm.