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, 

(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, 

, 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., 

, 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.”    

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, 

(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, 

(W.D.N.Y. May 8, 2008).

                                     8
1    plaintiffs’ employment.”    

  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

(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., 

, 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., 

, 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.”     

.

21       “Retaliation claims under Title VII are evaluated under

22   a three-step burden-shifting analysis.”      Jute v. Hamilton


                                     10
1    Sundstrand Corp., 

, 173 (2d Cir. 2005); see also

2    McDonnell Douglas Corp. v. Green, 

, 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.’”     

9    (quoting McMenemy v. City of Rochester, 

, 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.”       

quotation marks omitted).

16       If the plaintiff sustains this initial burden, “a

17   presumption of retaliation arises.”       

must

18   then “articulate a legitimate, non-retaliatory reason for

19   the adverse employment action.”     

“the

20   presumption of retaliation dissipates and the employee must

21   show that retaliation was a substantial reason for the

22   adverse employment action.”   

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., 

, 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.”      

.    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.”    

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.”      

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

, 128 (2d Cir. 2004); Galabya v. N.Y. City Bd. of

5    Educ., 

, 640 (2d Cir. 2000), no longer represent

6    the state of the law.    Accord Kessler v. Westchester County

7    Dep’t of Social Servs., 

, 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   

(quoting Oncale v. Sundowner Offshore

13   Servs., Inc., 

, 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.   

antiretaliation provision

17   protects an individual not from all retaliation, but from

18   retaliation that produces an injury or harm.”     

19         Third, by considering the perspective of a reasonable

20   employee, White bespeaks an objective standard.    

21   69.   The standard may be objective, but “[c]ontext matters.”

22   

  “‘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.’”     

(quoting Oncale,

).   Therefore, “an act that would be

6    immaterial in some situations is material in others.”      

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.”     

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., 

, 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., 

   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., 

,

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. 

   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, 

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, 

, 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 

(“[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,

.

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, 

, 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., 

20   about May 23, 1998, Plaintiff Smith discovered that the

21   curfew log was missing.”); 

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 

.

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,” 

39; and that his pay was docked as a result, 

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.”      

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.”        

   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, 

, 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[,]” 

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[,]” 

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[,]” 

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 

.

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, 

.   “[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., 

, 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 

.   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   

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, 

, 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




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