Hicks v. Baines ( 2010 )

06-3782-cv
Hicks v. Baines
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2008
6
7
8 (Argued: April 13, 2009 Decided: February 2, 2010)
9
10 Docket No. 06-3782-cv
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 DWIGHT D. HICKS, ANTONIO MELENDEZ, and
15 JAMES E. SMITH,
16
17 Plaintiffs-Appellants,
18
19 - v.- 06-3782-cv
20
21 TOMMY E. BAINES, individually and in his
22 official capacity,
23
24 Defendant-Appellee,
25
26 JOHN A. JOHNSON, in his official
27 capacity as Commissioner of the New York
28 State Division for Youth and New York
29 State Office of Children and Family
30 Services,
31
32 Defendant.
33
34 - - - - - - - - - - - - - - - - - - - -x
35
36 Before: JACOBS, Chief Judge, and CABRANES,
37 Circuit Judge.*
*
The Honorable Sonia Sotomayor, originally a member of
the panel, was elevated to the Supreme Court on August 8,
2009. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. 46(d);
1 Plaintiffs Dwight Hicks, Antonio Melendez, and James
2 Smith sued defendants Tommy Baines and John Johnson for
3 retaliation under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42
4 U.S.C. § 1981a, and the New York State Human Rights Law.
5 They now appeal from the judgment of the United States
6 District Court for the Western District of New York (Curtin,
7 J.), awarding summary judgment for defendants on all claims.
8 We vacate and remand in part and affirm in part.
9 DAVID J. SEEGER, Law Office of
10 David J. Seeger, Buffalo, New
11 York, for Appellants.
12
13 WILLIAM R. HITES, Law Office of
14 William Hites, Buffalo, New
15 York, for Appellee.
16
17
18 DENNIS JACOBS, Chief Judge:
19
20 Prior to this lawsuit, defendant Tommy Baines, a
21 supervisor in a residential youth facility of the State of
22 New York, was disciplined by his employer for having engaged
23 in a campaign of racial discrimination against Mark
24 Pasternak, an employee he supervised. Plaintiffs Dwight
25 Hicks, Antonio Melendez, and James Smith--coworkers of
26 Pasternak who were also supervised by Baines--cooperated in
Internal Operating Procedure E, 2d Cir. Local Rules; United
States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
2
1 the investigations and proceedings, and now allege that
2 Baines threatened to retaliate against them, and did.
3 Title VII’s anti-retaliation provision makes it
4 unlawful “for an employer to discriminate against any . . .
5 employee[] . . . because [that employee] opposed any
6 practice” made unlawful by Title VII or “made a charge,
7 testified, assisted, or participated in any manner in an
8 investigation, proceeding, or hearing under this
9 subchapter.” 42 U.S.C. § 2000e-3(a). As that provision has
10 been recently interpreted by the Supreme Court, retaliation
11 is unlawful when the retaliatory acts were “harmful to the
12 point that they could well dissuade a reasonable worker from
13 making or supporting a charge of discrimination.”
14 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57
15 (2006).
16 Plaintiffs sued Baines1 under 42 U.S.C. § 1981, 42
17 U.S.C. § 1983, 42 U.S.C. § 1981a, and the New York State
18 Human Rights Law, see N.Y. Exec. Law § 296, alleging seven
19 categories of retaliatory conduct: sabotage of the workplace
1
Plaintiffs also named as a defendant John Johnson,
Commissioner of the New York State Division for Youth and
New York State Office of Children and Family Services. The
parties have since agreed to dismiss Johnson from this
appeal.
3
1 to create spurious grounds for berating plaintiffs and
2 imposing discipline on them, punitive schedule changes,
3 “misplaced” documents, threats, false and adverse memoranda,
4 name-calling, and refusal to pay the facility’s bills.
5 The United States District Court for the Western
6 District of New York (Curtin, J.) awarded summary judgment
7 in favor of defendants on all claims. The district court
8 ruled that plaintiffs’ evidence (which consisted principally
9 of their affidavits in opposition to defendants’ motions for
10 summary judgment) was conclusory and that it did not amount
11 to a meaningful change in the terms and conditions of
12 employment. Plaintiffs appeal.
13 We vacate and remand as to one of the workplace
14 sabotage and the several punitive scheduling claims; as to
15 the remaining claims, we affirm.2
16 I
2
It appears from the record that Melendez died
sometime during discovery (but before he could be deposed or
provide an affidavit). Neither the record on appeal nor at
the district court make clear exactly when in the
proceedings Melendez died, nor what was done about his
involvement in this litigation. On remand, the district
court should apply Federal Rule of Civil Procedure 25(a)(1)
and either dismiss the case as concerns Melendez or take
other appropriate action.
4
1 Because this appeal comes to us after a grant of
2 summary judgment to defendants, we consider the facts in the
3 light most favorable to plaintiffs. See Mount Vernon Fire
4 Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir.
5 2002).
6 Baines has been employed by the New York State Office
7 of Children and Family Services (“OCFS”) since 1977. “OCFS
8 is dedicated to improving the integration of services for
9 New York’s children, youth, families and vulnerable
10 populations; to promoting their development; and to
11 protecting them from violence, neglect, abuse and
12 abandonment.” About the New York State Office of Children
13 and Family Services (OCFS), http://www.ocfs.state.ny.us
14 /main/about/. These objectives are achieved by “provid[ing]
15 a system of family support, juvenile justice, child care and
16 child welfare services that promote the safety and well-
17 being of children and adults.” Id.18 Baines worked his way up at OCFS over 18 years, from
19 ground-level counselor trainee to Director of two secure
20 residential facilities in Buffalo, New York: the Community
5
1 Residential Home and the Evening Reporting Center (“ERC”).
2 Among those he supervised are Mark Pasternak (the victim of
3 Baines’s prior campaign of racial discrimination) and the
4 three plaintiffs, all of whom worked at the Buffalo
5 facilities as Youth Division Aides (“YDA”). Their
6 responsibilities included supervising and counseling the
7 residents, helping to integrate them back into society.
8 Baines, Smith, and Hicks are African-American; Melendez (now
9 deceased) was Hispanic; Pasternak is white.
10 In 1995, soon after becoming Director, Baines started a
11 campaign of racial discrimination against Pasternak.
12 According to complaints filed by Pasternak and corroborated
13 by plaintiffs, Baines referred to Pasternak in
14 conversations, voicemails, and official memoranda as “White
15 Boy,” “That White Motherf--,” “That F--ing White Boy,”
16 “White Cracker Motherf--,” “Pollok,” and “Pasterat.” Baines
17 encouraged plaintiffs to discredit Pasternak to other OCFS
18 supervisors and to band together against the “White Boy.”
19 Baines told plaintiffs that Pasternak’s complaints against
20 him could result in the closing of facilities and loss of
6
1 their jobs.
2 In early 1996, Pasternak filed a formal misconduct
3 complaint against Baines, and OCFS launched an official
4 investigation. In November 1997, plaintiffs participated in
5 the investigation by making written and oral statements
6 about Baines’s treatment of Pasternak. They did so despite
7 their expressed fear that Baines would retaliate.
8 Plaintiffs’ fears were not unfounded. After Baines
9 learned that other employees--including plaintiffs--were
10 cooperating with the investigation, he told staff members
11 that Pasternak was a “rat” and that he would find out who
12 else “ratted” on him and “take care” of those people. In
13 June 1998, the OCFS investigators found Baines guilty of
14 misconduct. He was fined $2000 and received a formal Letter
15 of Reprimand, but he remains as Director, and supervisor of
16 Pasternak and plaintiffs.
17 Pasternak afterward brought a Worker’s Compensation
18 claim based on the stress and anxiety he suffered as a
19 result of Baines’s conduct. Plaintiffs testified against
20 Baines at the hearing, and Baines knew it. In August 2000,
7
1 Pasternak prevailed before the New York Workers’
2 Compensation Board. 3
3 Following plaintiffs’ participation in the OCFS
4 investigation and the Workers’ Compensation hearing, Baines
5 allegedly engaged in multifarious acts of retaliation to
6 punish plaintiffs for their cooperation in those
7 proceedings. On May 5, 1999, plaintiffs filed this lawsuit
8 alleging unlawful retaliation under 42 U.S.C. § 1981, 42
9 U.S.C. § 1983, 42 U.S.C. § 1981a, and the New York State
10 Human Rights Law. Plaintiffs assert seven categories of
11 such retaliatory conduct, which are analyzed below.
12 At the close of discovery, the district court granted
13 Baines’s motion for summary judgment on all claims. Hicks
14 v. Baines, No. 99-civ-0315C, 2006 WL 1994808 (W.D.N.Y. July
15 14, 2006). The court reasoned that “plaintiffs’ affidavits
16 contain only conclusory allegations” that did not “result[]
17 in any meaningful change in the terms and conditions of
3
In a separate Title VII lawsuit filed by Pasternak
against Baines, a jury found for Pasternak and awarded him
$150,000 in compensatory damages. See Pasternak v. Baines,
No. 00-Civ-369, 2008 WL 2019812 (W.D.N.Y. May 8, 2008).
8
1 plaintiffs’ employment.” Id. at *6. In so holding,
2 however, the district court failed to apply the then-recent,
3 but unquestionably controlling, Supreme Court decision in
4 Burlington Northern & Santa Fe Railway Co. v. White, 548
5 U.S. 53 (2006), which broadened the scope of Title VII’s
6 anti-retaliation protection. 4
7 This appeal followed. We now vacate and remand in part
8 and affirm in part.
9
10 II
11 All of plaintiffs’ retaliation claims are analyzed
12 pursuant to Title VII principles. See Patterson v. County
13 of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (“Most of
14 the core substantive standards that apply to claims of
15 discriminatory conduct in violation of Title VII are also
16 applicable to claims of discrimination in employment in
17 violation of § 1981 or the Equal Protection Clause.”); Reed
18 v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir.
4
White was decided approximately three weeks before
the district court’s opinion was filed; a review of the
district court docket sheet suggests that no party brought
White to the court’s attention.
9
1 1996) (“We consider [plaintiff’s] state law claims in tandem
2 with her Title VII claims because New York courts rely on
3 federal law when determining claims under the New York
4 [State] Human Rights Law.”). Title VII makes it unlawful
5 for an employer “to discriminate against any individual with
6 respect to his compensation, terms, conditions, or
7 privileges of employment, because of such individual’s race,
8 color, religion, sex, or national origin.” 42 U.S.C.
9 § 2000e-2(a). Title VII also includes an anti-retaliation
10 provision which makes it unlawful “for an employer to
11 discriminate against any . . . employee[] or applicant[]
12 . . . because [that individual] opposed any practice” made
13 unlawful by Title VII or “made a charge, testified,
14 assisted, or participated in” a Title VII investigation or
15 proceeding. 42 U.S.C. § 2000e-3(a). This anti-retaliation
16 provision is intended to further the goals of the anti-
17 discrimination provision “by preventing an employer from
18 interfering (through retaliation) with an employee’s efforts
19 to secure or advance enforcement of [Title VII’s] basic
20 guarantees.” White, 548 U.S. at 63.
21 “Retaliation claims under Title VII are evaluated under
22 a three-step burden-shifting analysis.” Jute v. Hamilton
10
1 Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); see also
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
3 (1973). First, the plaintiff must establish a prima facie
4 case of retaliation by showing: “‘(1) participation in a
5 protected activity; (2) that the defendant knew of the
6 protected activity; (3) an adverse employment action; and
7 (4) a causal connection between the protected activity and
8 the adverse employment action.’” Jute, 420 F.3d at 173
9 (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83
10 (2d Cir. 2001)). The plaintiff’s burden in this regard is
11 “de minimis,” and “the court’s role in evaluating a summary
12 judgment request is to determine only whether proffered
13 admissible evidence would be sufficient to permit a rational
14 finder of fact to infer a retaliatory motive.” Id.
15 (internal quotation marks omitted).
16 If the plaintiff sustains this initial burden, “a
17 presumption of retaliation arises.” Id. The defendant must
18 then “articulate a legitimate, non-retaliatory reason for
19 the adverse employment action.” Id. If so, “the
20 presumption of retaliation dissipates and the employee must
21 show that retaliation was a substantial reason for the
22 adverse employment action.” Id. A plaintiff can sustain
11
1 this burden by proving that “a retaliatory motive played a
2 part in the adverse employment actions even if it was not
3 the sole cause[;] if the employer was motivated by
4 retaliatory animus, Title VII is violated even if there were
5 objectively valid grounds for the [adverse employment
6 action].” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209
7 (2d Cir. 1990).
8 Principally (though not solely) at issue in this appeal
9 is the meaning of “adverse employment action” in the context
10 of the plaintiff’s prima facie case of retaliation. White
11 held that Title VII’s anti-retaliation provision applies
12 broadly to “employer actions that would have been materially
13 adverse to a reasonable employee or job applicant.” 548
14 U.S. at 57. Actions are “materially adverse” if they are
15 “harmful to the point that they could well dissuade a
16 reasonable worker from making or supporting a charge of
17 discrimination.” Id.
18 Several principles follow. First, it is now clear that
19 Title VII’s anti-discrimination and anti-retaliation
20 provisions “are not coterminous”; anti-retaliation
21 protection is broader and “extends beyond workplace-related
22 or employment-related retaliatory acts and harm.” Id. at
12
1 67. Prior decisions of this Circuit that limit unlawful
2 retaliation to actions that affect the terms and conditions
3 of employment, e.g., Williams v. R.H. Donnelley, Corp., 368
4 F.3d 123, 128 (2d Cir. 2004); Galabya v. N.Y. City Bd. of
5 Educ., 202 F.3d 636, 640 (2d Cir. 2000), no longer represent
6 the state of the law. Accord Kessler v. Westchester County
7 Dep’t of Social Servs., 461 F.3d 199, 207 (2d Cir. 2006)
8 (noting that White “announced a different standard”).
9 Second, by requiring a showing of material adversity,
10 White preserves the principle that Title VII “does not set
11 forth ‘a general civility code for the American workplace.’”
12 White, 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore
13 Servs., Inc., 523 U.S. 75, 80 (1998)). “[P]etty slights or
14 minor annoyances that often take place at work and that all
15 employees experience” do not constitute actionable
16 retaliation. Id. Thus, “[t]he antiretaliation provision
17 protects an individual not from all retaliation, but from
18 retaliation that produces an injury or harm.” Id. at 67.
19 Third, by considering the perspective of a reasonable
20 employee, White bespeaks an objective standard. Id. at 68-
21 69. The standard may be objective, but “[c]ontext matters.”
22 Id. at 69. “‘The real social impact of workplace behavior
13
1 often depends on a constellation of surrounding
2 circumstances, expectations, and relationships which are not
3 fully captured by a simple recitation of the words used or
4 the physical acts performed.’” Id. at 69 (quoting Oncale,
5 523 U.S. at 81-82). Therefore, “an act that would be
6 immaterial in some situations is material in others.” Id.7 at 69 (internal quotation marks omitted). For example, “[a]
8 schedule change in an employee’s work schedule may make
9 little difference to many workers, but may matter enormously
10 to a young mother with school-age children.” Id. And of
11 course context can diminish as well as enlarge material
12 effect.
13 Fourth, in determining whether conduct amounts to an
14 adverse employment action, the alleged acts of retaliation
15 need to be considered both separately and in the aggregate,
16 as even minor acts of retaliation can be sufficiently
17 “substantial in gross” as to be actionable. See Zelnik v.
18 Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)
19 (“[T]his ridicule was considered a part of a larger campaign
20 of harassment which though trivial in detail may have been
21 substantial in gross, and therefore was actionable.”
22 (internal quotation marks omitted)).
14
1 With these principles in mind, we turn to the district
2 court’s decision.
3
4 III
5 We review de novo the district court’s grant of summary
6 judgment. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
7 292, 300 (2d Cir. 2003). “Summary judgment is appropriate
8 only if the moving party shows that there are no genuine
9 issues of material fact and that the moving party is
10 entitled to judgment as a matter of law.” Id.; see also
11 Fed. R. Civ. P. 56(c). “[A] party may not rely on mere
12 speculation or conjecture as to the true nature of the facts
13 to overcome a motion for summary judgment. . . . [M]ere
14 conclusory allegations or denials . . . cannot by themselves
15 create a genuine issue of material fact where none would
16 otherwise exist.” Fletcher v. Atex, Inc., 68 F.3d 1451,
17 1456 (2d Cir. 1995) (internal quotation marks and citations
18 omitted).
19 As set forth above, our analysis begins with
20 plaintiffs’ de minimis burden to establish a prima facie
21 case of unlawful retaliation: (1) participation in a
22 protected activity; (2) that Baines knew of their
15
1 participation in that protected activity; (3) that they
2 suffered an adverse employment action; and (4) that there
3 exists a causal relationship between the protected activity
4 and the adverse employment action. Cf. Jute, 420 F.3d at
5 173.
6 For purposes of summary judgment only, Baines does not
7 contest that plaintiffs satisfy the first element, and
8 plaintiffs’ affidavits are sufficient to establish the
9 second, see Hicks Aff. ¶ 21; Smith Aff. ¶ 21. The third
10 element is the main subject of this appeal.
11 As to the third element of plaintiffs’ prima facie
12 case, the district court dismissed plaintiffs’ claims after
13 concluding that their “affidavits contain only conclusory
14 allegations of job sabotage, schedule changes, misplacing of
15 documents, idle threats, and unwarranted counseling
16 memoranda, none of which resulted in any meaningful change
17 in the terms and conditions of plaintiffs’ employment.”
18 Hicks v. Baines, 2006 WL 1994808 at *6. This reasoning
19 suggests two independent justifications for dismissal: (A)
20 the insufficiency of conclusory statements in opposing a
21 motion for summary judgment, and (B) Title VII principles of
22 anti-retaliation. Plaintiffs also raise on appeal two
16
1 allegations of retaliation outlined in their affidavits
2 filed in opposition to Baines’s motion for summary judgment
3 but not directly addressed by the district court: Baines
4 called Hicks “Hick” in memos and in the ERC log book; and
5 Baines intentionally failed to pay the food and utility
6 bills, thereby forcing plaintiffs to pay out of their own
7 pockets, or deal with hungry residents, and dunning calls
8 and letters. 5
9 As to many of these claims, we affirm on the ground
10 that plaintiffs’ evidence is too conclusory to withstand
11 summary judgment. But as to one claim of workplace sabotage
12 and the several punitive scheduling claims, plaintiffs’
13 evidence is sufficient both to survive summary judgment and
14 to satisfy the third element of their prima facie burden of
15 showing an adverse employment action under White.
16 Accordingly, as to these claims we vacate and remand.
17
5
In addition, plaintiffs make purely conclusory
allegations on appeal that Baines retaliated against them by
ordering them to do work outside of their regular job
responsibilities and by improperly docking their pay. There
is no further explanation, analysis, or developed argument.
See, e.g., Appellants’ Br. at 7-8. Accordingly, these
arguments are forfeited on appeal. See Norton v. Sam’s
Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered [forfeited]
and normally will not be addressed on appeal.”).
17
1 IV
2 The following claims were properly dismissed as too
3 conclusory to survive summary judgment:
4 Workplace Sabotage. In their affidavits opposing
5 summary judgment, plaintiffs make the following claims of
6 workplace sabotage:
7 • “Defendant Baines, on numerous occasions,
8 entered the E.R.C. after [Hicks] and his
9 fellow Plaintiffs had secured the facility for
10 the night to purposefully disturb the facility
11 and compromise the security of the site in an
12 effort to not only cause a poor reflection on
13 [Hicks] and his fellow Plaintiffs’ job
14 performances in securing the building, but
15 also to further torment, harass and retaliate
16 against them.” Hicks Aff. ¶ 29; see also
17 Smith Aff. ¶ 28 (same, but substitute “Smith”
18 for “Hicks” in the alterations).
19
20 • “On or about May 9, 1998, [Hicks] discovered
21 that the facility’s security had been
22 compromised during the night by someone having
23 the security codes and keys to the building
24 (upon information and belief, Defendant Baines
25 was in fact entering the facility during non-
26 operational hours).” Hicks Aff. ¶ 37; see
27 also Smith Aff. ¶ 36 (same).
28
29 • “[O]n or about May 9, 1998, [Hicks] discovered
30 dirty dishes in the sink and a knife missing
31 from the locked knife drawer. Upon
32 information and belief, Defendant Baines
33 removed the knife from the drawer to torment,
34 retaliate and add stress to [Hicks’s] work
35 shifts as the youths in [his] charge could and
36 at times did become violent.” Hicks Aff.
37 ¶ 38; see also Smith Aff. ¶ 37.
38
18
1 As to the general claim of sabotage: Plaintiffs’
2 affidavits on this point lack specifics and are conclusory;
3 a party cannot create a triable issue of fact merely by
4 stating in an affidavit the very proposition they are trying
5 to prove. See Fletcher, 68 F.3d at 1456 (“[C]onclusory
6 allegations . . . cannot by themselves create a genuine
7 issue of material fact where none would otherwise exist.”
8 (internal quotation marks omitted)).
9 As to the compromised security system claim: Plaintiffs
10 do not assert that it was Baines who had compromised the
11 facility’s security; instead, they suggest only that
12 “someone having the security codes and keys to the building”
13 was responsible. Plaintiffs then fail to offer evidence as
14 to which employees had the codes and keys, leaving purely to
15 speculation whether Baines was responsible. Cf. Fletcher,
16 68 F.3d at 1456.
17 As to the dirty dishes and missing knife claim: On
18 summary judgment, “[a] supporting or opposing affidavit must
19 be made on personal knowledge.” Fed. R. Civ. P. 56(e)(1).
20 That requirement “is not satisfied by assertions made ‘on
21 information and belief.’” SCR Joint Venture L.P. v.
22 Warshawsky, 559 F.3d 133, 138 (2d Cir. 2009) (internal
19
1 quotation marks omitted). Plaintiffs’ assertion that Baines
2 took the knife to retaliate against them--which is
3 explicitly grounded only on their “information and belief”--
4 is therefore insufficient. Plaintiffs do not allege that
5 Baines was responsible for the dirty dishes, and it would
6 not help if they did.
7 Misplaced Documents. Plaintiffs claim that Baines
8 intentionally “misplaced” several key documents. Of the
9 fifteen examples cited in the affidavits, nine deal with
10 Pasternak, who is not a plaintiff in this lawsuit. The
11 other six examples are too conclusory to survive summary
12 judgment. One claims no consequence for any plaintiff (or
13 for plaintiffs generally), see Hicks Aff. ¶ 42 (“From July
14 of 1995, Defendant Baines intentionally caused several Fire
15 Safety Reports, ACA documents, vouchers, utility statements
16 and bills, medical bills and log books to be ‘misplaced.’”);
17 and the others refer to seemingly innocuous acts that are
18 not plausibly attributable to Baines, even in light of his
19 professed retaliatory intentions. See, e.g., id. (“On or
20 about May 23, 1998, Plaintiff Smith discovered that the
21 curfew log was missing.”); id. (“On or about February 12,
22 1998, Defendant Baines requested the ‘running inventory
20
1 list’ from Plaintiff Melendez. When Plaintiff Melendez
2 looked in the file cabinet where the list was kept, he
3 discovered that the documents were missing.”). Accordingly,
4 we affirm summary judgment as to this category of claims.
5 Physical Threats. Plaintiffs make no argument on
6 appeal as to why their claim of physical threats should not
7 have been dismissed as conclusory. This argument is
8 therefore forfeited. See Norton, 145 F.3d at 117.
9 False Counseling Memoranda. Plaintiffs contend that
10 Baines submitted memoranda in which he noted various
11 falsehoods regarding plaintiffs’ work. We agree with the
12 district court that these allegations are too conclusory to
13 withstand summary judgment. For example, Smith’s affidavit
14 states that “[o]n or about April 4, 1998, Defendant Baines
15 did draft and file . . . a false counseling memorandum
16 against deponent regarding time and attendance,” Smith Aff.
17 ¶ 34; that “[o]n or about August 7, 1998, Defendant Baines
18 drafted and filed . . . three false counseling memoranda
19 against deponent regarding supposed insubordination,” id.20 ¶ 39; and that his pay was docked as a result, id. ¶ 42.
21 Smith’s affidavit, however, explains neither the
22 circumstances leading up to the memoranda nor why the
21
1 memoranda were false.
2 Name-calling. Hicks testified at his deposition and
3 swore in his affidavit that Baines referred to him as “Hick”
4 in various log books and hand-written notes. Hicks Aff.
5 ¶ 41. But this is an action claiming retaliation: Whatever
6 “Hick” might otherwise amount to, neither the deposition
7 testimony nor the affidavit explains whether Baines started
8 calling him “Hick” before Hicks had cooperated in the
9 Pasternak investigation.
10 Refusal to Pay the Facility’s Bills. Plaintiffs
11 contend that Baines intentionally failed to pay the ERC’s
12 food and utility accounts, and that plaintiffs were
13 therefore required to pay for the residents’ meals
14 themselves (which they apparently did on February 18, 1998).
15 Hicks Aff. ¶ 44; Smith Aff. ¶ 45. Plaintiffs also claim
16 that Baines’s refusal to pay the bills required plaintiffs
17 to handle the vendors’ demands. Plaintiffs’ affidavits are
18 too conclusory to survive summary judgment on this issue.
19 There is no suggestion, much less evidence, that Baines was
20 responsible for paying the bills, or (if he was) that Baines
21 failed to pay the bills intentionally, or (if he did) that
22 the consequences would fall chiefly on plaintiffs rather
22
1 than on Baines himself.
2
3 V
4 One of plaintiffs’ workplace sabotage claims, and the
5 several punitive scheduling claims, are sufficient to
6 survive summary judgment and to satisfy the third element of
7 their prima facie burden of showing an adverse employment
8 action under White.
9 Workplace Sabotage. Plaintiffs allege that “[o]n or
10 about July 31, 1998, Defendant Baines purposely left the
11 computer room window ajar thereby prohibiting [Hicks] and
12 his fellow Plaintiffs from setting the facility alarm as
13 Plaintiffs did not have keys to the computer room door.
14 [Hicks] and his fellow Plaintiffs were then reprimanded for
15 failing to activate the facility alarm.” Hicks Aff. ¶ 39;
16 Smith Aff. ¶ 38 (same, but substitute “Smith” for “Hicks” in
17 the alterations). This claim withstands scrutiny under
18 generally applicable principles of summary judgment.
19 Context and averments demonstrate that this is no mere
20 allegation that a window was left open. The open window
21 prevented the security system from being armed. The window
22 was behind a locked door; Baines had the key and knew that
23
1 no one else did. The inability to arm the security system
2 created risks that a vulnerable resident might wander out or
3 become the victim of an intruder. These risks furnished
4 grounds for discipline against whomever failed to arm the
5 security system. And plaintiffs were in fact reprimanded
6 notwithstanding that Baines was the only person in a
7 position to lock the door with the window ajar.
8 Punitive Scheduling. Plaintiffs’ evidence is
9 sufficient to survive summary judgment as to these claims,
10 as well. It is alleged that Baines intentionally adjusted
11 shift times, break times, work locations, and work
12 assignments (specifically, requiring plaintiffs to work
13 alone).
14 According to Hicks’s affidavit, Baines “purposefully
15 altered [Hicks’s] work schedule . . . by shortening [his]
16 off-duty time between work days” and by having “mandatory
17 training sessions at which [Hicks’s] presence was required
18 during the eight hours [Hicks] had off between the assigned
19 shifts.” Hicks Aff. ¶¶ 48-49. Hicks’s affidavit further
20 states that “in July, 2002, . . . Baines assigned [Hicks] to
21 work at the Richmond facility notwithstanding [Hicks’s]
22 seniority rights to work at the Courtland facility” and that
24
1 “[t]he Richmond facility housed a juvenile inmate 1) who
2 brought a frivolous excessive force claim against [him], in
3 part because prompted to do so by Defendant Baines who knew
4 the allegations to be frivolous and unfounded and 2) had
5 threatened violence against [Hicks’s] family members.” Id.
6 ¶¶ 55-56. Likewise, Smith swore that Baines repeatedly
7 required “one of the Plaintiffs to have to work their shift
8 alone. Having only one staff member on duty was not only
9 tedious but hazardous as the youth did at times act in a
10 violent and harmful manner. . . . Dates on which [Smith] and
11 his fellow Plaintiffs each worked their shifts alone were,
12 including but not limited to, [listing seven dates].” Smith
13 Aff. ¶¶ 32-33; see also Hicks Aff. ¶¶ 33-34. This evidence
14 enables plaintiffs’ punitive scheduling claims to survive
15 summary judgment.
16
17 * * *
18 As we have explained above, White broadened the scope
19 of Title VII’s anti-retaliation provision. No longer must
20 the alleged retaliatory act bear on the terms or conditions
21 of employment; the proper inquiry now is whether “the
22 employer’s actions [were] harmful to the point that they
25
1 could well dissuade a reasonable worker from making or
2 supporting a charge of discrimination.” White, 548 U.S. at
3 57. The district court did not cite White, but Baines
4 argues that the court nonetheless applied the correct
5 standard. We disagree.
6 True, the district court mentioned that “[f]or purposes
7 of a retaliation claim, an important consideration is
8 whether the action is one that would deter a similarly
9 situated individual of ordinary firmness from exercising his
10 or her . . . rights.” Hicks, 2006 WL 1994808, at *5
11 (internal quotation marks omitted). But under White, this
12 is not just an “important” consideration--it is the only
13 consideration.
14 Elsewhere, the district court’s opinion makes clear
15 that it was applying pre-White law that tied retaliation to
16 adverse action affecting the terms and conditions of
17 employment. For example, the district court, citing pre-
18 White cases, explained that “only a materially adverse
19 change in the terms and conditions of employment is
20 actionable under a disparate treatment theory[,]” id.
21 (internal quotation marks omitted); “[v]erbal humiliation,
22 unfair criticism, or unfavorable schedules or work
26
1 assignments do not rise to the level of adverse employment
2 actions because they do not have a material impact on the
3 terms and conditions of a plaintiff’s employment[,]” id.;
4 “negative evaluations are adverse employment actions only if
5 they affect ultimate employment decisions such as
6 promotions, wages or termination[,]” id. (internal quotation
7 marks and brackets omitted); and “plaintiffs’ affidavits
8 contain only conclusory allegations . . . none of which
9 resulted in any meaningful change in the terms and
10 conditions of plaintiffs’ employment[,]” id. at *6.
11 The district court’s error is important, because a
12 straightforward application of White makes clear that
13 plaintiffs’ surviving workplace sabotage and punitive
14 scheduling claims, if believed by a jury, constitute
15 “adverse employment actions” for purposes of the third
16 element of plaintiffs’ prima facie case. Plaintiffs work
17 (with a partner) in secure residential facilities where
18 safety concerns are paramount. A reasonable employee in
19 plaintiffs’ position “may well be dissuaded” from
20 participating in a discrimination investigation or
21 proceeding if he knew that in retaliation, he would be
22 disciplined (though innocent) for failing to arm a security
27
1 system that is needed to protect vulnerable residents,
2 and/or that his work schedule would be changed such that he
3 would have to work (alone) at a facility more dangerous and
4 threatening than the facility at which he usually worked.
5 In so reasoning, we give effect to White’s teaching that
6 “[c]ontext matters.” 548 U.S. at 69.
7 Accordingly, the district court erred in concluding
8 that plaintiffs’ surviving claims of workplace sabotage and
9 punitive scheduling do not constitute adverse employment
10 actions.
11
12 VI
13 The final element in plaintiffs’ prima facie case is to
14 demonstrate a causal relationship between the protected
15 activity and the adverse employment action. See Jute, 420
16 F.3d at 173. “[P]roof of causation can be shown either: (1)
17 indirectly, by showing that the protected activity was
18 followed closely by discriminatory treatment, or through
19 other circumstantial evidence such as disparate treatment of
20 fellow employees who engaged in similar conduct; or (2)
21 directly, through evidence of retaliatory animus directed
22 against the plaintiff by the defendant.” Gordon v. N.Y.
28
1 City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Here,
2 plaintiffs swore in their affidavits that Baines told Smith
3 that he (Baines) knew who cooperated in the investigation
4 against him and that he would retaliate against them for
5 their cooperation. Hicks Aff. ¶ 18; Smith Aff. ¶ 18. This
6 evidence is sufficient to sustain plaintiffs’ (de minimis)
7 burden of showing, as part of their prima facie case, the
8 requisite causal connection.
9
10 VII
11 Plaintiffs have therefore established a prima facie
12 case of retaliation. The burden now shifts to Baines to
13 articulate legitimate, non-retaliatory reasons for these
14 actions. See Jute, 420 F.3d at 173. If he does, the burden
15 then shifts back to plaintiffs to prove that a substantial
16 reason for the adverse employment actions was retaliation.
17 Id.18 The district court, having dismissed all of plaintiffs’
19 claims at the prima facie stage, did not reach
20 these two steps, and we decline to do so in the first
21 instance. The district court will need to consider these
22 issues on remand.
29
1 VIII
2 Baines argues that plaintiffs’ § 1983 claim alleging a
3 violation of the Equal Protection Clause of the Fourteenth
4 Amendment should be dismissed for failure to offer evidence
5 that they were treated differently than employees who were
6 similarly situated. It is certainly true that our case law
7 requires a plaintiff seeking relief pursuant to the Equal
8 Protection Clause to “show they were selectively treated
9 compared with other similarly situated employees, and that
10 selective treatment was based on impermissible
11 considerations such as race, [or] religion.” Knight v.
12 Conn. Dep’t of Pub. Health, 275 F.3d 156, 166 (2d Cir. 2001)
13 (internal quotation marks omitted) (alteration in original).
14 We reject Baines’s argument nevertheless. The premise of
15 this lawsuit is that plaintiffs were treated differently--
16 that is, they suffered retaliation--on the basis of their
17 participation in discrimination investigations and
18 proceedings. That participation obviously constitutes an
19 “impermissible” reason to treat an employee differently.
20
21 CONCLUSION
22 For the foregoing reasons, we affirm in part and vacate
30
1 and remand in part for proceedings consistent with this
2 opinion.
3
4
31