Cox v. Onondaga Cnty. Sheriff's Dep't., No. 12-1526 (2d Cir. 2014)
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Plaintiffs filed suit under Title VII of the Civil Rights Act, 42 U.S.C. 2000e-3, against the Department, alleging claims of retaliation for their complaints of racial harassment to the EEOC. Plaintiffs had shaved their heads to demonstrate solidarity with one of the plaintiffs who had cancer and lost his hair as a result of chemotherapy. The Department subsequently investigated complaints that plaintiffs were "skinheads." The court held that the Department's initiation and conduct of an investigation into the white plaintiffs' claims of racial harassment alleged to have been generated by an African American officer, and a complaint against plaintiffs for filing false reports with the EEOC of such harassment, were not adverse employment actions. The court also held that threats by the Department to charge plaintiffs with making a false report to the EEOC established a prima facie case of illegal retaliation but that the Department has shown a non-retaliatory purpose, and plaintiffs have presented no evidence of pretext. Accordingly, the court affirmed the district court's dismissal of plaintiffs' retaliation claims.
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12-1526-cv Cox v. Onondaga Cnty. Sheriff s Dep t. 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 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: February 20, 2013 Decided: July 23, 2014) Docket No. 12-1526-cv - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - STEVEN COX, THOMAS BINGHAM, EDWARD KALIN, MICHAEL McCARTY, and ROBERT SCOTT FELDMAN, Plaintiffs-Appellants, v. ONONDAGA COUNTY SHERIFF S DEPARTMENT; KEVIN E. WALSH, in his individual and official capacity; JOHN WOLOSZYN, in his individual and official capacity; DEPUTY SHERIFF O DELL WILLIS, in his individual and official capacity; ONONDAGA COUNTY; NICHOLAS PIRRO, ONONDAGA COUNTY EXECUTIVE; JOANNIE MAHONEY, ONONDAGA COUNTY EXECUTIVE, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e: WINTER, CHIN, and DRONEY, Circuit Judges. Appeal from grant of summary judgment by the United States 35 District Court for the Northern District of New York (Norman A. 36 Mordue, Judge) dismissing appellants Title VII retaliation 37 claims. 38 appellants claims of racial harassment was not an adverse 39 employment action. 40 established a prima facie case of retaliation based on threats We hold that the employer s investigation into We also hold that while appellants have 1 of discipline against appellants for filing a false report with 2 the EEOC, the employer has demonstrated a non-retaliatory 3 purpose as a matter of law. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 We therefore affirm. A.J. BOSMAN, Bosman Law Firm, LLC, Rome, NY, for PlaintiffsAppellants. CAROL L. RHINEHART, Onondaga County Department of Law, Syracuse, NY, for Defendants-Appellees Onondaga County Sheriff s Department, Kevin E. Walsh, O Dell Willis, Onondaga County, Nicholas Pirro, and Joannie Mahoney. LAURA L. SPRING, Sugarman Law Firm, LLP, Syracuse, NY, for DefendantAppellee John Woloszyn. WINTER, Circuit Judge: Onondaga County Sheriff s Department ( Department ) Deputies 21 Steven Cox, Thomas Bingham, Edward Kalin, Michael McCarty, and 22 Robert Scott Feldman appeal from Judge Mordue s granting of 23 summary judgment dismissing their complaint. 24 asserted retaliation for their complaints of racial harassment to 25 the Equal Opportunity Employment Commission ( EEOC ), in 26 violation of Title VII, 42 U.S.C. § 2000e-3. 27 That complaint We hold that the Department s initiation and conduct of an 28 investigation into: (i) the white appellants claims of racial 29 harassment alleged to have been generated by an African American 30 officer, and (ii) a complaint against appellants for filing false 31 reports with the EEOC of such harassment, were not adverse 32 employment actions. We also hold that threats by the Department 2 1 to charge appellants with making a false report to the EEOC 2 established a prima facie case of illegal retaliation but that 3 the Department has shown a non-retaliatory purpose, and 4 appellants have presented no evidence of pretext. 5 6 7 BACKGROUND On review of a grant of summary judgment dismissing a 8 complaint, we view the record in the light most favorable to 9 appellants. 10 Gallo v. Prudential Resid. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). 11 The present dispute began when appellants Cox, McCarty, 12 Feldman, and Bingham, as well as a lieutenant, non-appellant Jim 13 Raus, shaved their heads to demonstrate solidarity with appellant 14 Kalin, a cancer patient who lost his hair as a result of 15 chemotherapy treatments. 16 officers in the Onondaga County Sheriff s Department. 17 26, 2005, appellants and Raus filed what is known as a blue 18 form complaint, initiating an internal departmental procedure, 19 alleging racial harassment. 20 results only in an informal investigation and not in a full 21 investigation by the Department s internal investigation arm, the 22 Professional Standards Unit ( PSU ). 23 All were employed as transport/custody On August A blue form complaint usually In the blue form complaint, the deputies and lieutenant 24 stated that they had been the victims of rumors, based on their 25 shaved heads, that they were skinheads - i.e. members of a 3 1 white-supremacist group. 2 the talk in the Custody Division [was then] that [the deputies 3 and Lieutenant Raus were] members of a skin head organization. 4 The complaint alleged that rumors and It also stated that this vicious labeling of [the deputies 5 and lieutenant] was apparently started by a[n] African American 6 Deputy, who work[ed] with [them] in the Transport Unit. 7 Specifically, the blue form complaint alleged that an African 8 American Deputy, O Dell Willis, had approached Cox and questioned 9 him about why his head was shaven. It further alleged that 10 shortly thereafter, other, unnamed African American Deputies 11 approached Cox, Feldman, and McCarty and questioned them about 12 their shaved heads. 13 by the unnamed deputies, was alleged to have been accusatory or 14 confrontational. 15 complainants belief that the rumors had made the workplace 16 racially hostile and unsafe and in addition, put [their] 17 families, wives and children in danger. 18 developments described infra that while Department employees had 19 asked about why appellants heads were shaved and perhaps 20 mentioned the existence of the rumors, the accusatory harassment 21 was by inmates. 22 None of the inquiries, whether by Willis or Finally, the complaint alleged the It appears from The Department s Assistant Chief Wasilewski instructed 23 former Captain Woloszyn to investigate the complainants 24 allegations. Woloszyn s investigation concluded with a report 4 1 dated October 21, 2005, that found no evidence of 2 harassment. 3 inquired, but not in a hostile way, why the deputies had shaved 4 their heads. 5 appellants had heard Department members directly accuse them of 6 being skinheads. 7 such comments had been made. 8 Woloszyn, Lieutenant Raus withdrew as a complainant because he 9 was not approached by anyone and did not feel harassed but was According to Woloszyn s report, certain deputies had According to Woloszyn s report, none of the Rather, they had heard only from others that However, after being interviewed by 10 misled [by Cox] into believing that harassing conduct had 11 occurred. 12 The Woloszyn report settled little. The subsequent PSU 13 investigation, discussed infra, revealed that while Woloszyn s 14 conclusions about the lack of first-hand testimony about 15 accusatory behavior was correct so far as it went, he may not 16 have actually interviewed appellants McCarty or Bingham, or 17 several other deputies, whom he claimed to have interviewed. 18 Nevertheless, with the assistance of then-Union president Deputy 19 Dan Mathews and a union attorney, the five appellants filed 20 individual racial harassment complaints with the EEOC between 21 September 29 and October 12, 2005. 22 Appellants EEOC complaints, which were under oath, differed 23 materially from their blue form complaint. 24 as they did in the blue form complaint, a non-hostile encounter 5 Instead of alleging, 1 in which Willis simply asked Cox why his head was shaven, Cox and 2 McCarty stated to the EEOC that an unnamed African American 3 Deputy had accused them of being skinheads in a face to face 4 confrontation. 5 American Deputy has to be understood to be Willis. 6 only African American Deputy mentioned by name in the blue form 7 complaint, which strongly implies -- all but expressly states -- 8 that Willis is the source of the allegedly harassing rumors. 9 PSU investigation, described infra, collected testimony that On this record, the reference to an African Willis is the The 10 Willis was believed by all to be the source. 11 the present matter named Willis as a defendant and directly 12 alleged that the hostile environment was fanned by the actions 13 of Defendant Willis. 14 unnamed African American Deputy would have been understood, then 15 and now, to mean Willis. 16 Feldman indicated prior, hostile, but unrelated, encounters with 17 Willis. 18 Willis was believed to be the source of the alleged harassment. 19 The complaint in On this record, the reference to an Finally, statements by Cox, McCarty and Nothing in appellants brief claims that anyone but Feldman and Bingham also complained that they had heard from 20 other deputies that they had been referred to as skinheads and 21 called racist by African American Deputies. 22 stated that he had been confronted with the existence of rumors 23 that he was a skinhead. 24 Department had acted upon similar complaints of harassment by Kalin s complaint Every appellant complained that the 6 1 2 African American Deputies but failed to act upon theirs. On October 26, 2005, the Department filed a response with 3 the EEOC, signed by Assistant Chief Wasilewski. The response 4 stated that Wasilewski could find no merit to the harassment 5 alleged in either the blue form or the EEOC complaint filed by 6 appellants. 7 effort to determine if any harassment has occurred in this 8 incident. 9 entire package to the Onondaga County Sheriff s Office It also stated that the employer has made every In furtherance of that end, I have submitted this 10 Professional Standards Unit, our internal investigation arm, for 11 their review, recommendation, and interdiction. 12 to the PSU was pursuant to a written Onondaga policy that 13 harassment complaints were to be investigated by the PSU at the 14 Department Chief s direction. 15 The submission On December 12, 2005, the EEOC dismissed all appellants 16 complaints and issued a notice to appellants of their right to 17 sue within 90 days. 18 harassment claim further. 19 However, appellants never pursued the The PSU continued with its investigation. When it 20 commenced, it had before it: (i) the original blue form 21 complaint; (ii) the individual EEOC complaints; (iii) Lieutenant 22 Raus s written withdrawal of his blue form complaint; (iv) the 23 October 21, 2005 report of Captain Woloszyn; and (v) the October 24 26, 2005 statement to the EEOC. Also before the PSU was a 7 1 misconduct allegation by Assistant Chief Wasilewski that he 2 forwarded to the PSU on November 11, 2005. 3 McCarty, Feldman, Bingham, Kalin, and Lieutenant Raus violated 4 Departmental regulations by filing false reports.1 5 allegation was presumably based on the inconsistent factual 6 claims asserted in the blue form complaint and EEOC filings. 7 Wasilewski s misconduct complaint also accused Woloszyn of false 8 statements, presumably for claiming non-existent interviews in 9 his report. 10 He alleged that Cox, This The PSU thus had before it a variety of issues: (i) whether 11 appellants had been racially harassed because of rumors started 12 by Willis that they were skinheads; (ii) whether appellants 13 complaints of racial harassment generated by Willis were 14 knowingly false; and (iii) whether Woloszyn had made a false 15 report regarding his investigation into (i). 16 The issues were yet more complicated. The misconduct 17 complaint in (ii), if upheld, would support an inference that 18 several white officers had engaged in a coordinated effort to 19 harass Willis, who had earlier prevailed in a Title VII lawsuit 20 against the Department alleging a hostile work environment and 1 The misconduct complaint was based on Sections 2.8 and 4.3 of the Department s policy and procedures. Section 2.8 provides, [m]embers shall refrain from actions or conduct while on duty which may discredit a member or the Sheriff s Office. Section 4.3 provides, [m]embers shall not make or submit a report or document, which contains information known by the member to be inaccurate, false or improper . . . nor influence another person to do so. 8 1 retaliation. 2 No. 5:04-cv-00828 (GTS-GHL), Dkt. No. 67-68, 77. 3 of racial tension in the Department at pertinent times is evident 4 from the record, as is the belief of appellants that their 5 grievances were treated less sympathetically than those of 6 African American officers, particularly Willis. 7 See Willis v. Onondaga County Sheriff s Department, The existence In that context, Sergeant Smith began the PSU 8 investigation. Smith interviewed the appellants individually, in 9 the presence of a union representative. None of them, including 10 McCarty and Cox, claimed to have been called a skinhead to their 11 face by another deputy. 12 officers in the Department who were interviewed, reported the 13 existence, even persistent existence, of rumors that appellants 14 were skinheads. 15 allegation, albeit several officers made non-hostile inquiries as 16 to why appellants had shaved their heads. 17 testified to the existence of rumors that Willis had started the 18 rumors. 19 about two weeks after appellants interviews, Willis flatly 20 denied that he had said anything to suggest the deputies were 21 skinheads and stated that the whole affair put undue stress on 22 him in his work. 23 24 Appellants, and most of the other However, none had heard any officer make such an Some officers also In his interview with Sergeant Smith, which took place During the individual interviews of appellants, each was informed that disciplinary action against them was being 9 1 considered based on the falsity of the EEOC filings. 2 to being questioned on how the skinhead rumors had started and 3 the inconsistencies in some of their allegations, appellants were 4 each questioned about the Woloszyn investigation. 5 Two reports resulted from the PSU investigation. In addition The first, 6 dated January 26, 2006, summarized former Captain Woloszyn s 7 failure to thoroughly investigate the original blue form 8 complaint as well as his submission of a false and misleading 9 report to Assistant Chief Wasilewski in violation of Sections 2.8 10 and 4.3 of the Department s policies and procedures. 11 supra. 12 See Note 1, The second, dated January 31, 2006, summarized the 13 circumstances found to involve a violation of Department policies 14 and procedures in the filing of a false EEOC report by Cox and 15 McCarty. 16 first-hand knowledge of harassment or confrontational behavior by 17 Willis, even though each alleged a face-to-face confrontation 18 with Willis in the EEOC complaint. 19 This was based on Cox and McCarty s conceded lack of However, Sheriff Walsh, the head of the Department, decided 20 not to take any official action against Cox and McCarty. Former 21 Captain Woloszyn was demoted. 22 Sheriff Walsh s decision not to pursue charges against them, Cox 23 and Matthews, the then-acting Union President, unsuccessfully 24 attempted to obtain a copy of the PSU report upon the conclusion Between appellants interviews and 10 1 2 of the investigation. On February 16, 2006, appellants filed a second round of 3 EEOC complaints, this time alleging that the PSU investigation 4 and threats of false reports charges were illegal retaliation for 5 their harassment complaints. 6 retaliation, finding the department s decision to investigate and 7 consider disciplinary action against appellants for making false 8 allegations in an EEOC complaint to have been discriminatory. 9 noted that such actions might have [had] a chilling effect upon The EEOC found evidence of 10 the willingness of individuals to speak out against employment 11 discrimination or to participate in the EEOC s administrative 12 It process or other employment discrimination proceedings. 13 Appellants were issued notices of their right to sue and 14 timely filed the present action on April 9, 2008. They alleged, 15 in pertinent part, that they were victims of a hostile work 16 environment and unlawful retaliation by the various appellees in 17 violation of Title VII and N.Y. Exec. Law § 296. 18 alleged violations of 42 U.S.C. §§ 1981, 1983, 1985, and 1988; 19 the Fourteenth Amendment; and Article 1, Section 11, of the New 20 York State Constitution. 21 asserted under 42 U.S.C. § 1981 and the Title VII hostile work 22 environment claims sua sponte. 23 Dep t, No. 5:08-cv-387 (NPM), 2009 U.S. Dist. LEXIS 28101 24 (N.D.N.Y. Apr. 2, 2009). Appellants also Judge McCurn dismissed the claims Cox v. Onondaga Cnty. Sheriff s The remaining claims were later 11 1 dismissed on a grant of summary judgment by Judge Mordue, who 2 held that there was no evidence of a requisite adverse employment 3 action. 4 (NAM), 2012 U.S. Dist. LEXIS 43913 (N.D.N.Y. Mar. 29, 2012). 5 Appellants have appealed the dismissal only of the Cox v. Onondaga Cnty. Sheriff s Dep t, No. 5:08-cv-387 6 retaliation claim. They also claim that Judge Mordue should have 7 recused himself because of a prior relationship with Sheriff 8 Walsh. 9 DISCUSSION 10 We review an appeal from a grant of summary judgment de 11 novo. 12 2003). 13 issues of material fact and the movant is entitled to judgment as 14 a matter of law. 15 support in the record. 16 635, 640 (2d Cir. 2012). 17 See, e.g., Terry v. Ashcroft 336 F.3d 128, 137 (2d Cir. Summary judgment is appropriate only where there are no Id. We may, however, affirm on any ground with McElwee v. County of Orange, 700 F.3d In order to show a prima facie case of retaliation in 18 response to a motion for summary judgment, a plaintiff must 19 submit sufficient admissible evidence to allow a trier of fact to 20 find: 21 under Title VII; (ii) of which the employer was aware; (iii) 22 followed by an adverse employment action of a nature that would 23 deter a reasonable employee from making or supporting a 24 discrimination claim; (iv) that was causally connected to the (i) conduct by the plaintiff that is protected activity 12 1 protected activity. Kessler v. Westchester Cnty. Dep t of Soc. 2 Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).2 Once an employee establishes a prima facie case, the burden 3 4 shifts to the employer to put forth evidence of a non-retaliatory 5 rationale. See Holt v. KMI-Continental, 95 F.3d 123, 130 (2d 6 Cir. 1996). Once the employer has done so, the employee may 7 prevail by demonstrating that the stated rationale is mere 8 pretext. 9 179-80 (2d Cir. 2005). Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173, The employee at all times bears the 10 burden of persuasion to show a retaliatory motive. 11 Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). 12 district court held that appellants had failed to establish a 13 prima facie case because they had suffered no adverse employment 14 action. 15 Cosgrove v. The Appellants argue that several aspects of the PSU 16 investigation amount to the requisite adverse employment actions: 17 (i) the investigation was conducted by the PSU instead of within 18 the Department in contrast to other investigations of allegations 19 of harassment or hostile work environment that were handled 2 The statutory provision reads in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). 13 1 internally; (ii) the PSU s interview of Deputy Willis was less 2 confrontational than their own; (iii) the PSU interviews were 3 more preoccupied with the failings of Captain Woloszyn s 4 investigation and the authorship of appellants paperwork and 5 filings than with the substance of their allegations; and (iv) 6 appellants request for a copy of the PSU report was denied on 7 the grounds that disciplinary action was pending. 8 separately, infra, with the portion of appellants retaliation 9 claim resulting from the fact that they were informed during the We deal 10 investigation that they could be brought up on criminal and 11 administrative charges based on their false complaint to the 12 EEOC. 13 As noted, adverse employment actions are those that well 14 might . . . dissuade[] a reasonable worker from making or 15 supporting a charge of discrimination. 16 Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations and 17 citations omitted). 18 significance of any given act of retaliation will often depend 19 upon the particular circumstances. 20 a) 21 Burlington N. & Santa Fe However, [c]ontext matters, and so the Id. at 69. The PSU Investigation An employer s investigation of an EEOC complaint alleging 22 racial harassment without more -- that is, without additional 23 particularized facts evidencing a retaliatory intent and 14 1 resulting in, or amounting to, adverse job consequences for the 2 complainant -- cannot sustain a valid retaliation complaint. 3 While the relevant statutory provisions do not require an 4 employer s investigation, as was the case in Malik v. Carrier 5 Corp., 202 F.3d 97, 105-06 (2d Cir. 2000) (federal law required 6 investigation into workplace sexual harassment; failure to do so 7 was basis for employer liability), they clearly contemplate that 8 employers facing charges before the EEOC will fully inform 9 themselves of all relevant circumstances. After a complaint has 10 been filed, in writing under oath or affirmation, the 11 Commission must give notice to the employer within 10 days. 12 U.S.C. § 2000e-5(b). 13 the EEOC has determined that there is reasonable cause to believe 14 that a complaint is true, the respondent (the employer) generally 15 will be asked to submit a position statement with supporting 16 documentation. 17 Commission will conduct a fact-finding conference in order to 18 investigate, which can include a meeting intended to determine 19 what facts are disputed and undisputed. 20 exchange of letters or memoranda, interrogatories, 21 investigations, fact-finding conferences or any other fact- 22 finding methods that efficiently and thoroughly address the 23 matters at issue. 24 engages in informal methods of conference, conciliation, and Then the Commission investigates. 29 C.F.R. § 1614.108. After Occasionally, the Agencies may use an 29 C.F.R. § 1614.108(b). 15 42 Then the Commission 1 persuasion. 2 to reach a conciliation agreement with the Commission in order 3 to remedy the discrimination. 4 42 U.S.C. § 2000e-5(b). The respondent has 30 days 42 U.S.C. § 2000e-5(f)(1). These provisions clearly contemplate that employers must be 5 allowed to inform themselves of all facts relevant to an EEOC 6 complaint. 7 and are asked not only to engage in conciliation but also are 8 sometimes asked to present their view of the facts. 9 are at risk of liability from conducting a non-overreaching Employers have a right to answer an EEOC complaint If employers 10 internal investigation, meaningful conciliation and fact 11 conferences are not possible. 12 Moreover, we cannot blind ourselves to the fact that an 13 employer s failure to conduct an investigation when faced even 14 with an internal complaint, much less a charge to the EEOC, might 15 be viewed as evidence of an indifference to racial 16 discrimination, if not acquiescence in it. 17 with confidence that the law must give breathing room for such 18 investigations to be carried out. 19 (law must take care not to reduce [employers ] incentives to 20 take reasonable corrective action, so employer[s ] conduct of 21 an investigation and determination of its scope must be viewed ex 22 ante ); United States v. N.Y. Transit Auth., 97 F.3d 672, 677-78 23 (2d Cir. 1996) (granting employers leeway in how to investigate 24 and defend against EEOC proceedings); cf. Tepperwien v. Entergy 16 Indeed, we can say See Malik, 202 F.3d at 106-07 1 Nuclear Operations, Inc., 663 F.3d 556, 568-70 (2d Cir. 2011) 2 (fact-finding investigations that do not themselves qualify as 3 disciplinary action but could lead to disciplinary action, where 4 engaged in with good reason, do not constitute adverse employment 5 actions under White). 6 Therefore, employees who complain of racial discrimination, 7 whether internally and/or through an EEOC complaint, may not 8 claim retaliation simply because the employer undertakes a fact- 9 finding investigation. 10 Having said that, we quickly add that an employer s 11 investigation may constitute a cognizable retaliatory action if 12 carried out so as to result in a hostile work environment, 13 constructive discharge, or other employment consequences of a 14 negative nature, or if conducted in such an egregious manner as 15 to dissuade a reasonable worker from making or supporting a 16 charge of discrimination. 17 Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (an 18 investigation that is lengthy in nature, prohibits promotions 19 during its pendency, and by its very nature places a cloud over 20 [one s] career qualifies as an adverse employment action under 21 White). 22 86 (D.D.C. 2009) (noting that length and scope of an 23 investigation into unrelated misconduct could satisfy the White 24 standard), with Tepperwien, 663 F.3d at 568-70 (fact-finding See White, 548 U.S. at 57; see also Compare Rhodes v. Napolitano, 656 F. Supp. 2d 174, 185- 17 1 investigations engaged in with good reason that could but do not 2 necessarily lead to disciplinary action constitute trivial harms 3 or petty and minor annoyances that would not unduly dissuade a 4 reasonable employee from seeking redress under Title VII). 5 Apart from the threat of disciplinary proceedings, dealt 6 with separately infra, none of the circumstances relied upon by 7 appellants, whether viewed individually or collectively, are 8 sufficient to allow a finder of fact to find illegal retaliatory 9 acts in the conduct of the PSU investigation. 10 First, appellants claim that their blue form complaint 11 about racial harassment was the only such complaint to have been 12 investigated by the PSU. 13 justified the investigation by the PSU. 14 ensured that any further attempt to handle these matters 15 informally would be viewed with great skepticism. 16 appellants have not claimed that any similar matter -- 17 allegations of harassment followed by a defective 18 investigation -- had been handled informally. 19 However, the circumstances fully Woloszyn s failures Indeed, Critically, moreover, the written policy of the Onondaga 20 Sheriff s Department authorized PSU investigation of harassment 21 complaints at the direction of the Chief. 22 circumstances in Stern v. Columbia University, therefore, the PSU 23 investigation was not conducted by a body established in an ad 24 hoc fashion to look into this matter only. 18 Unlike the 131 F.3d 305, 309 (2d 1 Cir. 1997). 2 was the first to result in a PSU investigation, therefore, no 3 trier of fact could find that it was prompted by a retaliatory 4 motive or constituted a hostile work environment, constructive 5 discharge, or deterrent to seeking relief from the EEOC. 6 Even if appellants complaint of racial harassment Second, appellants rely upon the fact that Deputy Willis was 7 treated less confrontationally during his PSU interview. 8 However, Willis s interview occurred after the interviews of 9 appellants revealed that, contrary to appellants EEOC claim, no 10 appellant (or anyone else) ever saw or heard Willis make any 11 remarks about appellants being skinheads. 12 questioning of appellants and Willis was of a different character 13 and the difference might be deemed cognizable retaliation, which 14 we do not decide, there were sound reasons not to be 15 confrontational with Willis. Even assuming that the 16 Third, appellants arguments regarding the nature and 17 subject of the questioning during their respective interviews is 18 frivolous. 19 all of which resulted from appellants claims of racial 20 harassment. 21 matters and was clearly legitimate. 22 23 As noted, the PSU had before it a number of issues, The questioning complained of related to these Finally, also frivolous is appellants argument that their request for a copy of the PSU report was denied at the time it 19 1 was made. Indeed, appellants identify no cognizable harm from 2 that denial. 3 b) The Threats of False Report Charges Against Appellants 4 As noted, during the PSU investigation, Sergeant Smith 5 informed appellants that they might be brought up on charges as a 6 result of having filed false statements. 7 appellants later inquired as to the status of the charges, they 8 were told that charges were pending. 9 When, a month later, We deal with the threat of false reports charges separately 10 because it raises important issues as to the breadth of legally 11 cognizable claims of retaliation for the filing of charges with 12 the EEOC. 13 - be a deterrent to reasonable employees making or supporting 14 discrimination claims. 15 Obviously, such a threat would often - even usually The statutory language, see Note 2, supra, is quite broad 16 but falls well short of suggesting that an absolute privilege 17 immunizes knowingly false EEOC charges. 18 might support criminal charges under 18 U.S.C. §§ 1621 (perjury) 19 and 1505 (obstruction of agency proceedings). 20 Certainly, such conduct However, the fact that false charges before the EEOC are not 21 permitted does not necessarily lead to the conclusion that the 22 employers targeted by such charges are entitled to respond with 23 disciplinary action against the filing employee. 24 see, e.g., Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998 (5th 20 Some circuits, 1 Cir. 1969), have concluded that employers have no authority to 2 unilaterally police abuses of the EEOC process. 3 Others take the view that, Title VII was designed to protect the 4 rights of employees who in good faith protest the discrimination 5 they believe they have suffered and not to arm employees with a 6 tactical coercive weapon under which employees can make baseless 7 claims simply to advance their own retaliatory motives and 8 strategies. 9 (7th Cir. 2004) (internal quotations omitted); see also Richey v. 10 City of Independence, 540 F.3d 779, 784-86 (8th Cir. 2008) (where 11 documentary evidence results in a conclusion that an employee has 12 violated non-discriminatory company policy, even if the 13 violations occurred in the context of a workplace harassment 14 investigation, resulting adverse employment actions are not 15 retaliatory). 16 Id. at 1005. Mattson v. Caterpillar, Inc., 359 F.3d 885, 890-91 One district court in this circuit has seemingly held that 17 such threats are per se illegal retaliation. See Proulx v. 18 Citibank, N.A., 681 F. Supp. 199, 200-01 (S.D.N.Y. 1988), aff d 19 without opinion, 862 F.2d 304 (2d Cir. 1988).3 20 court has applied a good faith requirement for protected 21 activity in retaliation cases like the present one. 22 Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998), However, this See Quinn v. 3 We note that while Proulx was affirmed by this court as to the quantum of damages, the liability finding was not appealed. See Proulx v. Citibank, N.A., 709 F. Supp. 396, 397 (S.D.N.Y. 1989). 21 1 abrogated in part on other grounds by Nat l R.R. Passenger Corp. 2 v. Morgan, 536 U.S. 101 (2002) ( Quinn need not establish that 3 she successfully described in that complaint conduct amounting to 4 a violation of Title VII. 5 a good faith, reasonable belief that the underlying challenged 6 actions of the employer violated the law. (internal quotations 7 and citations omitted)). 8 9 She need only demonstrate that she had In reviewing the facts of these various cases, we find no inconsistencies in their results when the ordinary McDonnell- 10 Douglas burden-shifting regime, which governs retaliation cases, 11 Terry, 336 F.3d at 141, is applied. 12 proffered sufficient evidence that a threat of discipline 13 triggered by a claim of discrimination was made, a prima facie 14 case of retaliation will usually have been established. 15 Once the plaintiff has We therefore believe it fairly obvious that a prima facie 16 case has been established in the present matter. 17 burden of producing evidence of a non-retaliatory reason for the 18 threat of discipline shifts to the Department, with the burden of 19 showing pretext falling on plaintiffs, who bear the ultimate 20 burden of showing illegal retaliation. 21 retaliation cases based on such threats are generally strong and 22 the employers rebuttals generally non-existent or weak. 23 However, the facts of the present case may be a tad unusual, but 22 As noted, the It may well be that 1 they are sufficient to support summary judgment for the 2 appellees. 3 Sergeant Smith s statements about charges for making a false 4 report being possible were completely reasonable in light of the 5 record. 6 given materially inconsistent statements regarding Willis s 7 behavior. 8 (understandably) asking why they had shaved their heads to 9 stating that Willis had confronted them with accusations of being Appellants, who had initiated the entire matter, had These ranged from describing Willis as 10 skinheads. 11 false, and seemingly intentionally so. 12 based on these false accusations had been filed by Assistant 13 Chief Wasilewski and was referred to the PSU. 14 appellants of the possible results of the investigation was in 15 fact fair to them.4 16 The latter accusation was, on the record before us, A misconduct complaint Informing Moreover, the false statements were intended by the officers 17 who made them, who were white, to establish a claim of racial 18 harassment by an African American officer. 19 racial tension within the Department, false charges against 20 Willis could be viewed by a reasonable observer as themselves 21 racial harassment of Willis. 22 testimony indicated that he felt harassed by the accusations, and In the context of Indeed, Willis s deposition 4 No due process claim has been asserted by appellants, who were, in any event, not charged. 23 1 the PSU report noted that he felt undue stress at work as a 2 result. 3 Employers are under an independent duty to investigate and 4 curb racial harassment by lower level employees of which they are 5 aware. 6 This is because the primary purpose of Title VII is not to 7 provide redress but to avoid harm. 8 Raton, 524 U.S. 775, 806 (1998). 9 to conclude that an employer is not allowed to investigate, with See Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009). Faragher v. City of Boca It would therefore be anomalous 10 a view to discipline, false complaints of harassment that 11 themselves might be viewed as intended as racial harassment. 12 Otherwise, employers might have to choose between liability for 13 retaliating against one group of employees or liability to 14 another group for not preventing the first group from harassment 15 of the second with false claims.5 16 Our decision is supported by another fact. Law enforcement 17 officials are required to file reports accurately. The 18 Department, therefore, has a greater interest in disciplining 19 officers who do not take that obligation seriously than do most 20 employers. 21 fact that a generally applicable, non-discriminatory, written The importance of this policy is underlined by the 5 Smith did not threaten that the charges would be brought unless the EEOC charge was dropped so that the matter could be closed rather than investigated. Compare Lore v. City of Syracuse, 583 F. Supp. 2d 345, 367 (N.D.N.Y. 2008) (statement that one will forego criminal and administrative charges if an EEOC complaint is dropped qualifies as an adverse employment action). 24 1 policy for dealing with false reporting exists in the Department. 2 Moreover, a law enforcement officer who has filed a false charge 3 under oath with a governmental agency may well be cross-examined 4 about that false filing when a witness in an unrelated case where 5 the officer s credibility is in issue. 6 See Fed. R. Evid. 608(b). In contrast, appellants have presented no evidence that the 7 warning about disciplinary action was intended to retaliate for 8 any reason other than the apparent falsity of their EEOC charges 9 and the complex circumstances those false charges created. As 10 noted, they have the ultimate burden of proof on that issue. 11 Therefore, even if appellants have established a prima facie case 12 on their retaliation claim based on the threat of false reports 13 charges, the Department has presented evidence that defeats that 14 claim as a matter of law. 15 c) Recusal 16 Title 28 U.S.C. § 455(a) requires a judge to recuse himself 17 in any proceeding in which his impartiality might reasonably be 18 questioned. 19 contexts not relevant here as provided for in Section 455(b) and 20 also wherever, an objective, disinterested observer fully 21 informed of the underlying facts, would entertain significant 22 doubt that justice would be done absent recusal. 23 v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal quotations 24 and alterations omitted). Under the statute, recusal is required in specific United States The pertinent trigger for recusal is 25 1 the appearance of partiality, Chase Manhattan Bank v. 2 Affiliated FM Ins. Co., 343 F.3d 120, 128-30 (2d Cir. 2003), and 3 a denial of a motion to recuse is reviewed for abuse of 4 discretion. 5 Id. at 126. Appellants argue that the fact that Judge Mordue recused 6 himself from matters involving Sheriff Walsh in 2007 and 2009, 7 see Leader v. Onondaga County, No. 09-cv-0493 (NAM/DEP), 2009 8 U.S. Dist. LEXIS 39296 (N.D.N.Y. 2009), citing a long 9 relationship between the two, compels the conclusion that Judge 10 Mordue should have recused himself from this litigation. 11 disagree. 12 We While at one time there may have been a close relationship 13 between Sheriff Walsh and Judge Mordue, it is undisputed that 14 Judge Mordue, at the time of the instant litigation, had not seen 15 or spoken to Walsh since March 2005. 16 details about the relationship, negates any inference of 17 partiality. 18 & Jenrette, Ind., 157 F.3d 933, 945 (2d Cir. 1998) (passage of 19 time negates inference of partiality). 20 d) 21 This fact, absent other See Independent Order of Foresters v. Donald, Lufkin Unsealing the Record Much of this opinion refers at critical points to parts of 22 the record that have been sealed. 23 the sealed material to our disposition of this matter, we order 24 that the entire record on appeal be unsealed. 26 Because of the importance of See Joy v. North, 1 692 F.2d 880, 893 (2d Cir. 1982) ( [D]ocuments used by parties 2 moving for, or opposing, summary judgment should not remain under 3 seal absent the most compelling reasons. ); accord Stern, 131 4 F.3d at 307 (same). 5 CONCLUSION 6 For the foregoing reasons, the judgment of the district 7 court is affirmed. 8 27
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