Hicks v. Baines, No. 06-3782 (2d Cir. 2010)

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06-3782-cv Hicks v. Baines 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: April 13, 2009 Decided: February 2, 2010) Docket No. 06-3782-cv - - - - - - - - - - - - - - - - - - - -x DWIGHT D. HICKS, ANTONIO MELENDEZ, and JAMES E. SMITH, Plaintiffs-Appellants, - v.- 06-3782-cv TOMMY E. BAINES, individually and in his official capacity, Defendant-Appellee, JOHN A. JOHNSON, in his official capacity as Commissioner of the New York State Division for Youth and New York State Office of Children and Family Services, Defendant. - - - - - - - - - - - - - - - - - - - -x Before: * The the panel, 2009. The agreement, JACOBS, Chief Judge, and CABRANES, Circuit Judge.* Honorable Sonia Sotomayor, originally a member of was elevated to the Supreme Court on August 8, two remaining members of the panel, who are in 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 10 11 12 13 14 15 16 17 18 19 20 DAVID J. SEEGER, Law Office of David J. Seeger, Buffalo, New York, for Appellants. WILLIAM R. HITES, Law Office of William Hites, Buffalo, New York, for Appellee. DENNIS JACOBS, Chief Judge: 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. 25 Hicks, Antonio Melendez, and James Smith--coworkers of 26 Pasternak who were also supervised by Baines--cooperated in Plaintiffs Dwight 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. 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. 13 The district court Plaintiffs appeal. 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 I 16 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. 4 Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 5 2002). 6 See Mount Vernon Fire Baines has been employed by the New York State Office 7 of Children and Family Services ( OCFS ) since 1977. 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. 13 and Family Services (OCFS), http://www.ocfs.state.ny.us 14 /main/about/. 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. 18 OCFS About the New York State Office of Children These objectives are achieved by provid[ing] Id. 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 ). 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 Their 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. 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 Baines 1 their jobs. 2 In early 1996, Pasternak filed a formal misconduct 3 complaint against Baines, and OCFS launched an official 4 investigation. 5 the investigation by making written and oral statements 6 about Baines s treatment of Pasternak. 7 their expressed fear that Baines would retaliate. 8 In November 1997, plaintiffs participated in They did so despite 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. 13 June 1998, the OCFS investigators found Baines guilty of 14 misconduct. 15 of Reprimand, but he remains as Director, and supervisor of 16 Pasternak and plaintiffs. 17 In He was fined $2000 and received a formal Letter 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. 20 Baines at the hearing, and Baines knew it. Plaintiffs testified against 7 In August 2000, 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. 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 On May 5, 1999, plaintiffs filed this lawsuit 10 Human Rights Law. 11 such retaliatory conduct, which are analyzed below. 12 Plaintiffs assert seven categories of At the close of discovery, the district court granted 13 Baines s motion for summary judgment on all claims. 14 v. Baines, No. 99-civ-0315C, 2006 WL 1994808 (W.D.N.Y. July 15 14, 2006). 16 contain only conclusory allegations that did not result[] 17 in any meaningful change in the terms and conditions of Hicks The court reasoned that plaintiffs affidavits 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. 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 8 This appeal followed. Id. at *6. In so holding, We now vacate and remand in part and affirm in part. 9 10 II 11 All of plaintiffs retaliation claims are analyzed 12 pursuant to Title VII principles. 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 See Patterson v. County 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. ). 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. 9 § 2000e-2(a). Title VII makes it unlawful 42 U.S.C. 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. 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. 21 22 42 U.S.C. § 2000e-3(a). This anti-retaliation White, 548 U.S. at 63. Retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis. 10 Jute v. Hamilton 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). 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. 9 (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83 First, the plaintiff must establish a prima facie Jute, 420 F.3d at 173 10 (2d Cir. 2001)). 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. 15 (internal quotation marks omitted). 16 The plaintiff s burden in this regard is Id. If the plaintiff sustains this initial burden, a 17 presumption of retaliation arises. 18 then articulate a legitimate, non-retaliatory reason for 19 the adverse employment action. 20 presumption of retaliation dissipates and the employee must 21 show that retaliation was a substantial reason for the 22 adverse employment action. Id. 11 Id. Id. The defendant must If so, the A plaintiff can sustain 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]. 7 (2d Cir. 1990). Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 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. 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. 14 U.S. at 57. 15 harmful to the point that they could well dissuade a 16 reasonable worker from making or supporting a charge of 17 discrimination. 18 White 548 Actions are materially adverse if they are Id. 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. 12 Id. at 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. 7 Dep t of Social Servs., 461 F.3d 199, 207 (2d Cir. 2006) 8 (noting that White announced a different standard ). Accord Kessler v. Westchester County 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)). 14 minor annoyances that often take place at work and that all 15 employees experience do not constitute actionable 16 retaliation. 17 protects an individual not from all retaliation, but from 18 retaliation that produces an injury or harm. 19 Id. [P]etty slights or Thus, [t]he antiretaliation provision Id. at 67. Third, by considering the perspective of a reasonable 20 employee, White bespeaks an objective standard. 21 69. 22 Id. at 69. Id. at 68- The standard may be objective, but [c]ontext matters. 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. 5 523 U.S. at 81-82). 6 immaterial in some situations is material in others. 7 at 69 (internal quotation marks omitted). 8 schedule change in an employee s work schedule may make 9 little difference to many workers, but may matter enormously Id. at 69 (quoting Oncale, Therefore, an act that would be Id. For example, [a] 10 to a young mother with school-age children. 11 course context can diminish as well as enlarge material 12 effect. 13 Id. And of 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. 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 See Zelnik v. 1 2 With these principles in mind, we turn to the district court s decision. 3 4 5 III We review de novo the district court s grant of summary 6 judgment. 7 292, 300 (2d Cir. 2003). 8 only if the moving party shows that there are no genuine 9 issues of material fact and that the moving party is Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d Summary judgment is appropriate 10 entitled to judgment as a matter of law. 11 Fed. R. Civ. P. 56(c). 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. 17 1456 (2d Cir. 1995) (internal quotation marks and citations 18 omitted). 19 Id.; see also [A] party may not rely on mere Fletcher v. Atex, Inc., 68 F.3d 1451, 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. 5 173. 6 Cf. Jute, 420 F.3d at 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. 10 The third 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. 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. This reasoning 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. 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. But as to one claim of workplace sabotage 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 4 conclusory to survive summary judgment: Workplace Sabotage. In their affidavits opposing 5 summary judgment, plaintiffs make the following claims of 6 workplace sabotage: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ¢ Defendant Baines, on numerous occasions, entered the E.R.C. after [Hicks] and his fellow Plaintiffs had secured the facility for the night to purposefully disturb the facility and compromise the security of the site in an effort to not only cause a poor reflection on [Hicks] and his fellow Plaintiffs job performances in securing the building, but also to further torment, harass and retaliate against them. Hicks Aff. ¶ 29; see also Smith Aff. ¶ 28 (same, but substitute Smith for Hicks in the alterations). ¢ On or about May 9, 1998, [Hicks] discovered that the facility s security had been compromised during the night by someone having the security codes and keys to the building (upon information and belief, Defendant Baines was in fact entering the facility during nonoperational hours). Hicks Aff. ¶ 37; see also Smith Aff. ¶ 36 (same). ¢ [O]n or about May 9, 1998, [Hicks] discovered dirty dishes in the sink and a knife missing from the locked knife drawer. Upon information and belief, Defendant Baines removed the knife from the drawer to torment, retaliate and add stress to [Hicks s] work shifts as the youths in [his] charge could and at times did become violent. Hicks Aff. ¶ 38; see also Smith Aff. ¶ 37. 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. 6 allegations . . . cannot by themselves create a genuine 7 issue of material fact where none would otherwise exist. 8 (internal quotation marks omitted)). 9 See Fletcher, 68 F.3d at 1456 ( [C]onclusory 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. 14 to which employees had the codes and keys, leaving purely to 15 speculation whether Baines was responsible. 16 68 F.3d at 1456. Plaintiffs then fail to offer evidence as Cf. Fletcher, 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. 20 That requirement is not satisfied by assertions made on 21 information and belief. 22 Warshawsky, 559 F.3d 133, 138 (2d Cir. 2009) (internal Fed. R. Civ. P. 56(e)(1). SCR Joint Venture L.P. v. 19 1 quotation marks omitted). 2 took the knife to retaliate against them--which is 3 explicitly grounded only on their information and belief -- 4 is therefore insufficient. 5 Baines was responsible for the dirty dishes, and it would 6 not help if they did. 7 Misplaced Documents. Plaintiffs assertion that Baines Plaintiffs do not allege that Plaintiffs claim that Baines 8 intentionally misplaced several key documents. 9 fifteen examples cited in the affidavits, nine deal with Of the 10 Pasternak, who is not a plaintiff in this lawsuit. 11 other six examples are too conclusory to survive summary 12 judgment. 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. 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 The One claims no consequence for any plaintiff (or 20 See, e.g., id. ( On or 1 list from Plaintiff Melendez. 2 looked in the file cabinet where the list was kept, he 3 discovered that the documents were missing. ). 4 we affirm summary judgment as to this category of claims. 5 Physical Threats. When Plaintiff Melendez Accordingly, Plaintiffs make no argument on 6 appeal as to why their claim of physical threats should not 7 have been dismissed as conclusory. 8 therefore forfeited. 9 This argument is See Norton, 145 F.3d at 117. False Counseling Memoranda. Plaintiffs contend that 10 Baines submitted memoranda in which he noted various 11 falsehoods regarding plaintiffs work. 12 district court that these allegations are too conclusory to 13 withstand summary judgment. 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 We agree with the For example, Smith s affidavit 21 1 2 memoranda were false. 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. 5 ¶ 41. 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 Hicks Aff. But this is an action claiming retaliation: Whatever 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. 16 that Baines s refusal to pay the bills required plaintiffs 17 to handle the vendors demands. 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 Plaintiffs also claim Plaintiffs affidavits are 1 than on Baines himself. 2 3 4 V 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. 16 Smith Aff. ¶ 38 (same, but substitute Smith for Hicks in 17 the alterations). 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. 21 prevented the security system from being armed. 22 was behind a locked door; Baines had the key and knew that Hicks Aff. ¶ 39; This claim withstands scrutiny under 23 The open window The window 1 no one else did. 2 created risks that a vulnerable resident might wander out or 3 become the victim of an intruder. 4 grounds for discipline against whomever failed to arm the 5 security system. 6 notwithstanding that Baines was the only person in a 7 position to lock the door with the window ajar. 8 9 The inability to arm the security system These risks furnished And plaintiffs were in fact reprimanded Punitive Scheduling. Plaintiffs evidence is sufficient to survive summary judgment as to these claims, 10 as well. 11 shift times, break times, work locations, and work 12 assignments (specifically, requiring plaintiffs to work 13 alone). It is alleged that Baines intentionally adjusted 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. 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 Hicks Aff. ¶¶ 48-49. 24 Hicks s affidavit further 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. 6 ¶¶ 55-56. 7 required one of the Plaintiffs to have to work their shift 8 alone. 9 tedious but hazardous as the youth did at times act in a Id. Likewise, Smith swore that Baines repeatedly Having only one staff member on duty was not only 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]. 13 Aff. ¶¶ 32-33; see also Hicks Aff. ¶¶ 33-34. 14 enables plaintiffs punitive scheduling claims to survive 15 summary judgment. Smith This evidence 16 17 18 * * * As we have explained above, White broadened the scope 19 of Title VII s anti-retaliation provision. 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 No longer must 1 could well dissuade a reasonable worker from making or 2 supporting a charge of discrimination. 3 57. 4 argues that the court nonetheless applied the correct 5 standard. 6 White, 548 U.S. at The district court did not cite White, but Baines We disagree. 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. 11 (internal quotation marks omitted). 12 is not just an important consideration--it is the only 13 consideration. 14 Hicks, 2006 WL 1994808, at *5 But under White, this 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. 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 For example, the district court, citing pre- 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. 17 (with a partner) in secure residential facilities where 18 safety concerns are paramount. 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 Plaintiffs work A reasonable employee in 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. 7 548 U.S. at 69. 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 13 VI 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. 16 F.3d at 173. 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. See Jute, 420 [P]roof of causation can be shown either: (1) 28 Gordon v. N.Y. 1 City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). 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. 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. Hicks Aff. ¶ 18; Smith Aff. ¶ 18. Here, This 9 10 VII 11 Plaintiffs have therefore established a prima facie 12 case of retaliation. 13 articulate legitimate, non-retaliatory reasons for these 14 actions. 15 then shifts back to plaintiffs to prove that a substantial 16 reason for the adverse employment actions was retaliation. 17 Id. 18 The burden now shifts to Baines to See Jute, 420 F.3d at 173. If he does, the burden 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. 22 issues on remand. The district court will need to consider these 29 1 2 VIII 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. 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 It is certainly true that our case law 10 selective treatment was based on impermissible 11 considerations such as race, [or] religion. 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. 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. 19 impermissible reason to treat an employee differently. Knight v. The premise of That participation obviously constitutes an 20 21 22 CONCLUSION 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

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