Tuesday, November 1, 2011

$500,000 Title VII verdict flies out the window

The Court of Appeals has rejected as baseless a Title VII retaliation verdict that awarded a security officer at the Indian Point nuclear power plant $500,000 in punitive damages. In doing so, the Second Circuit provides guidance on the meaning of Title VII's requirement that a retaliation plaintiff prove that he suffered an "adverse employment action." While the Second Circuit has issued favorable rulings on the "adverse action" question over the last few years, this one goes the other way.

The case is Tepperwien v. Entergy Nuclear Operations, decided on October 31. Tepperwien was a security officer at Indian Point in Westchester County. A male co-worker made sexual advances toward Tepperwien, who complained about this to management. Following this complaint, Tepperwien found himself on the hot seat as management began questioning him about various work-related incidents and filed counseling letters, which Tepperwien claimed were adverse actions sufficient to dissuade any reasonable employee from complaining about sexual harassment again. Plaintiff ended up quitting his job over this retaliation.

Here's what management did to Tepperwien after he complained about the harassment: the facility issued a "factfinder" when someone thought that Tepperwien has not reported that a gas mask was missing. Factfinders are common Q and A sessions, but not quite counseling sessions. Tepperwien said he had done nothing wrong, but he got a counseling letter over this. Another factfinder concerned management's concern that Tepperwien allowed an intoxicated employee onto the site. A month later, when Indian Point needed additional security, Tepperwien was scheduled to work with his harasser; he agreed, however, to take a different shift. Then, at a meeting of the security force, Tepperwien's supervisor gave him the evil eye after announcing that he did not like some of the workers. Plaintiff was then slapped with another factfinder after he agreed to keep an eye on someone's truck parked on the property and then asked his successor to also monitor the vehicle. Plaintiff then quit his job because he could not take it anymore. But he did write in his exit survey that he would consider working for the company again and was satisfied with his job.

In the district court, Judge Seibel took away the jury verdict, wiping out the $500,000 punitive damages award. (The jury awarded no compensatory damages). The Court of Appeals (Katzmann and Chin) affirms, and Tepperwien once again watches half-a-million dollars fly out the window.

After providing a good summary of the state of Title VII retaliation law, the Circuit says that all the bad stuff that happened to plaintiff was too trivial to dissuade a reasonable employee from complaining about sexual harassment, and that these incidents were not even enough in the aggregate to create an adverse action. Not only were the "factfinders" nondisciplinary and common occurrences at Entergy, but Entergy had good reason to initiate the factfinders such that "even assuming Tepperwien acted perfectly appropriately in all three incidents, there certainly was good reason for Entergy management to at least look into these situations." And, while factfinders may lead to discipline, Tepperwien was not disciplined in connection with these incidents. Moreover, while plaintiff received a counseling over the gas mask incident, it was rescinded after he contacted the in-house Employee Concerns Program. The counseling also did not place Tepperwien in an "active disciplinary process" and it was less than a warning or reprimand. Rather, the Second Circuit says that counselings like this are "part of training and necessary to allow employees to develop, improve and avoid discipline." And, like plaintiff, other employees were also counseled for not checking certain equipment. In all, the Second Circuit says that all the negative treatment was not sufficiently adverse (including the evil stare from a supervisor and another supervisor's empty threat to walk plaintiff off the worksite after plaintiff facetiously threatened to kick the harasser in the groin) to support a Title VII retaliation claim.

In the aggregate, these various responses by management in the wake of plaintiff's sexual harassment complaint also would not deter anyone from complaining in the future. As Judge Chin writes, "zero plus zero is zero." Moreover, noting that context is crucial in assessing whether the plaintiff suffered an adverse action, the Court says that the high-security environment at Indian Point requires that management exhibit little tolerance for mistakes and rules violations, and "it is not surprising that Tepperwien was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion."

In dissent, district judge John Gleeson would reinstate the verdict. This lengthy dissent proves that there are truly two sides of every story. Among other things, plaintiff did not have factfinders until he complained about the harassment. Judge Gleeson fleshes out some of the evidence that the majority opinion omits, including the hassle and runaround that Tepperwien experienced after lodging his complaints. While plaintiff said in his exit survey that he liked his job, Judge Gleeson says that the jury could credit his testimony that he did not want to look like a disgruntled employee and that you can like your job and be reasonably dissuaded from complaining about discrimination at the same time. Judge Gleeson also objects to the majority's view that a high-security workplace might require security officers to put up with diluted antiretaliation rights under Title VII.

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