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Tepperwien v. Entergy Nuclear Operations, No. 10-1425 (2d Cir. Oct. 31, 2011)

Can increased scrutiny at work, including a disciplinary letter (later withdrawn), constitute a "materially adverse action" for a claim under Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)? A jury said "yes," to the tune of a $500,000 judgment, but the Second Circuit - in a 2-1 decision - sides with the district court on these facts, and says "no."

Tepperwien v. Entergy Nuclear Operations, No. 10-1425 (2d Cir. Oct. 31, 2011): Ever since the Supreme Court set the standard of employer behavior covered by the anti-retaliation section - "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. & Sante Fe Ry. Co. v. White, 548 U.S. 53 (2006)) - the lower courts have wrestled with what kind of conduct is covered, and who decides that question. Judgment-calls are supposed to go to the jury.

So, in this case, the jury had before it two claims: male-on-male sex harassment by a supervisor, and retaliation for complaining about the harassment. The jury, after a week-long trial, found in favor of the employer on the first claim and the employee on the second. The jury awarded $500,000 in punitive damages, but zero in compensatory damages. On post-trial motions, the district court (for purposes of discussion here) directed entry of a verdict for the employer on retaliation, holding that all of the employer's behavior added together was not great enough to deter a reasonable employee from complaining about harassment.

The pattern (from the employee's perspective) was that every complaint he made about harassment was seemingly matched by an unwelcome visit from someone in management on an unrelated issue.

The employee was a security officer at a power plant; the alleged harasser was a trainer. At different times over a year, the trainer propositioned the employee, made sexually-explicit remarks (audible to others), grabbed the plaintiff's buttocks, and put his hand through the plaintiff's hair. The employee complained about the more serious incidents.

After the employee complained about the grabbing incident, within weeks the company opened up a "fact-finding" (i.e. investigation) challenging the employee's use of sick time, after which "he was issued a letter advising that he would be subject to disciplinary action if he abused his sick time leave in the future."

After complaining about the hair incident, he was charged with failing to account for a piece of equipment that went missing while he was on duty (a gas mask). "[A] counseling letter was issued to Tepperwien confirming that he had been counseled to check and inspect assigned equipment when assuming a post." The letter was rescinded when another employee admitted responsibility.

In another arguable escalation, the employee filed a complaint about the harassment directly with the Nuclear Regulatory Commission. Within weeks, plant management invited the employee to a plant meeting on his day off; he was not told, and did not learn until he arrived, that the meeting was actually about the NRC complaint. He was informed that he could not tape-record the meeting and would be fired for not cooperating if he did not stop asking.

Along with other incidents (other fact-findings about a drunk co-worker and an unaccounted-for truck parked near the facility, threats of termination and general snubbing), the employee resigned.

The Second Circuit, by a 2-1 vote, affirms judgment as a matter of law. In essence, the panel majority holds - under the facts here - that an employer opening up an investigation, one that (supposedly) does not cause the employee any expense or harm to his employment status, does not subject itself to retaliation liability. It cites in particular the circumstances of this case, that (1) "fact-finders at Entergy were not disciplinary in nature," (2) "there was good reason for Entergy to initiate these fact-finders, and thus no reasonable employee would have found them to be materially adverse or stigmatizing," and (3) "while fact-finders certainly could lead to disciplinary action, they did not here."

The panel makes note of the security-command-control environment in this case:

"The security unit at Indian Point was akin to a law enforcement or quasi military unit, with a chain of command, lieutenants and chiefs, handcuffing exercises, the deployment of weapons, and the use of BREs. The task of securing a nuclear power plant raised significant safety concerns not found in most work environments, and, understandably, there was little tolerance for mistakes and rule violations, or even perceived mistakes. It is not surprising that Tepperwien was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion."

Finally, the panel majority holds in any event that the $500,000 verdict could not stand anyway, because the employer established as a matter of law that it did not recklessly disregard the employee's Title VII rights and took affirmative steps to correct incidents that he complained about during the year before his resignation.

The dissent, written by visiting Judge John Gleeson (E.D.N.Y.), would hold that the jury's verdict was supported by the record, and rebukes the majority for supposedly fact-finding from the bench:

"[T]hough jury findings are always entitled to great deference, it is hard to conjure a context in which they deserve it more than in this one. The Supreme Court has emphasized that the determination of whether challenged conduct meets the materially adverse standard is especially fact-intensive. In Burlington Northern, it stated that 'the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.' 548 U.S. at 69 (internal quotation marks omitted). And earlier this year, in Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011), the Court stated that '[g]iven the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's anti retaliation provision is simply not reducible to a comprehensive set of clear rules.' Id. at 868. Retaliation claims thus implicate a broad remedial provision, violations of which are determined only after a searching review of all aspects of the challenged actions and the wider context in which they occurred in order to determine the 'real social impact of workplace behavior.' Jurors are obviously better suited to determining the social impact of contemporary workplace behavior than are judges. The majority thus not only usurps the proper role of the jury but substitutes for that body a factfinder with significant, perhaps even disabling, institutional limitations."

The dissent would also have affirmed the punitive award, though with a $300,000 cap:

"[T]he jury decided that Entergy, whose attorney argued to the jury that there could be no liability unless Tepperwien proved that [the harasser] was a homosexual, needed punishment and deterrence, so it awarded $500,000 in punitive damages. Though the calculation of such damages is anything but a precise science, given Entergy's size, it's difficult to quarrel with the jury's assessment that an award of that size was necessary in order to finally get Entergy's attention, except to say that it exceeds the statutory cap of $300,000, of which the jury was unaware."

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