Tepperwien v. Entergy Nuclear Operations, Inc.
94 Empl. Prac. Dec. (CCH) 44,307, 2011 U.S. App. LEXIS 22028, 663 F.3d 556 (2011)
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Rule of Law:
For an employer's conduct to constitute a 'materially adverse action' under Title VII's anti-retaliation provision, it must be significant enough that it would dissuade a reasonable worker from making or supporting a charge of discrimination. Trivial harms, petty slights, or minor annoyances that employees regularly experience do not meet this standard, even when considered in the aggregate.
Facts:
- James Tepperwien was a security officer at a nuclear power plant owned by Entergy Nuclear Operations, Inc. ('Entergy').
- Beginning in the summer of 2003, firearms instructor Vito Messina verbally harassed Tepperwien with sexual comments on four separate occasions over the course of a year.
- On November 16, 2004, Messina shoved Tepperwien against a wall and grabbed his buttocks. Tepperwien reported the incident to his union representative, who reported it to Entergy's Human Resources.
- Entergy investigated the buttocks-grabbing incident but did not sustain Tepperwien's complaint. The company required security officers to review its anti-harassment policy and attend a training session.
- On August 29, 2005, Messina touched Tepperwien's hair and neck while in a vehicle, stating, "I'm going to touch you as much as I want." Tepperwien reported this incident to a supervisor.
- Following the second report, Entergy placed Messina on paid leave, referred him for a psychological evaluation, and issued him a formal 'Letter of Discipline' upon his return.
- After Tepperwien began complaining, Entergy subjected him to a series of 'fact-finder' investigations concerning his sick time usage, a missing gas mask, allowing a 'reeking' officer on-site, and his monitoring of a truck.
- In September 2006, after the final fact-finder investigation, Tepperwien resigned from Entergy.
Procedural Posture:
- James Tepperwien filed suit against Entergy Nuclear Operations, Inc. in the U.S. District Court for the Southern District of New York, alleging hostile environment sexual harassment, retaliation, and constructive discharge under Title VII.
- On Entergy's motion for summary judgment, the district court dismissed the constructive discharge claim but allowed the hostile environment and retaliation claims to proceed to trial.
- A jury trial was held on the remaining claims.
- The jury found in favor of Entergy on the hostile environment claim but found in favor of Tepperwien on the retaliation claim.
- For the retaliation claim, the jury awarded Tepperwien $0 in compensatory and nominal damages, and $500,000 in punitive damages.
- Entergy filed a post-trial motion for judgment as a matter of law (JMOL) to dismiss the retaliation claim.
- The district court granted Entergy's JMOL motion, overturning the jury's verdict on the retaliation claim.
- Tepperwien appealed the district court's grant of judgment as a matter of law to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Do an employer's actions, such as initiating several non-disciplinary investigations, issuing a rescinded counseling letter, and making unfulfilled verbal threats against an employee who complained of sexual harassment, constitute 'materially adverse actions' sufficient to support a Title VII retaliation claim?
Opinions:
Majority - Chin, Circuit Judge
No. The employer's actions do not constitute 'materially adverse actions' because, whether viewed individually or in the aggregate, they were not significant enough to dissuade a reasonable worker from making or supporting a charge of discrimination. The court applied the standard from Burlington Northern v. White, which distinguishes between significant harm and 'trivial harms' or 'petty slights or minor annoyances.' The court reasoned that the 'fact-finders' were non-disciplinary, common investigative tools at the high-security facility, and resulted in no discipline. The counseling letter was rescinded and was a minor form of criticism. The verbal threats by supervisors were never carried out and were deemed empty. Finally, the shift change was voluntary, as Tepperwien requested it. Considered in the aggregate, these trivial harms do not become material; 'zero plus zero is zero.' The context of a quasi-military security force at a nuclear plant means employees should expect a 'rough and tumble' environment, not 'kid gloves.'
Dissenting - Gleeson, District Judge
Yes. The jury's verdict should be upheld because a reasonable jury could find that the employer's actions were materially adverse. The majority improperly usurps the jury's role by re-weighing the evidence in the employer's favor. From the perspective of Tepperwien, who had a clean record, the sudden series of fact-finders immediately following his complaints was not trivial. The counseling was a formal disciplinary action that took six weeks, a written submission, and attorney consultation to get rescinded, which would certainly dissuade a reasonable employee from making future complaints. The majority also trivializes a supervisor's threat to remove Tepperwien from the site after he complained that the company's policies were ineffective. The jury is better suited than judges to determine the 'real social impact of workplace behavior,' and its finding that Entergy's actions were retaliatory was supported by the evidence.
Analysis:
This decision significantly refines the application of the 'materially adverse action' standard from Burlington Northern. It establishes that a plaintiff cannot simply aggregate a series of minor, non-disciplinary employer actions to meet the threshold for a Title VII retaliation claim, setting a higher bar for such claims. The court's emphasis on the workplace 'context,' specifically the 'rough and tumble' nature of a high-security environment, suggests that the standard for what is considered 'materially adverse' may vary depending on the industry. This case makes it more difficult for employees to succeed on retaliation claims based on a pattern of minor harassments or investigations, reinforcing the principle that Title VII is not a 'general civility code for the American workplace.'
