Kessler v. Westchester County Dept., Social Serv.

Decision Date23 August 2006
Docket NumberDocket No. 05-2582-cv.
Citation461 F.3d 199
PartiesRichard KESSLER, Plaintiff-Appellant, v. WESTCHESTER COUNTY DEPARTMENT OF SOCIAL SERVICES and Westchester County, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Antonia Kousoulas, New York, N.Y. (Kousoulas & Associates, New York, NY), for Plaintiff-Appellant.

Joseph A. Saccomano, Jr., White Plains, N.Y. (Susanne Kantor, Jackson Lewis, White Plains, NY, Charlene M. Indelicato, Westchester County Attorney, on the brief), for Defendants-Appellees.

Before FEINBERG, KEARSE, and RAGGI, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff Richard Kessler appeals from a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Judge, summarily dismissing his complaint ("Complaint") alleging that defendants Westchester County (the "County") and its agency Westchester County Department of Social Services ("DSS") violated his rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), by transferring him to a less desirable employment post and changing his responsibilities in retaliation for Kessler's filing of charges of discrimination pursuant to Title VII and the ADEA. The district court granted defendants' motion for summary judgment dismissing those claims on the ground that Kessler, who conceded that the transfer had not effected any change in his salary, benefits, job title, grade, or hours of work, failed to show that he had suffered an adverse employment action. On appeal, Kessler contends that he had adduced evidence sufficient to create a genuine issue of fact to be tried as to whether the changes in his employment were materially adverse, and that summary judgment was thus inappropriate. In light of the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. White, ___ U.S. ___, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), we agree.

I. BACKGROUND

Taken in the light most favorable to Kessler, as the party against whom summary judgment was granted, the record, which includes Kessler's affidavit and his deposition testimony, as well as depositions of various DSS officials, indicates the following.

Kessler, employed by the County since 1977, has been assigned to DSS since October 1983 in the permanent civil service position of Assistant Commissioner of Social Services. From 1983 until April 2003, Kessler was assigned to work in DSS offices located in White Plains, New York. Except for three years of that period when he headed DSS's Office of Child Support Enforcement, Kessler was assigned to DSS's central administrative office, where the DSS Commissioner and senior staff members had their offices.

During the period October 1983 to April 2003, Kessler's duties included broad departmental responsibilities such as negotiating contracts on behalf of DSS; developing new departmental program initiatives; designing and implementing training programs for lower-level employees and programs to train outside vendors to perform functions in the manner desired by DSS; and acting as a liaison with Pace University in a management training fellowship program. At times Kessler supervised upwards of 100 DSS employees. He managed broad program areas, as to which he reported directly to the Commissioner or a Deputy Commissioner.

A. Kessler's Past Claims of Discrimination

In June 2002, Kessler, a white, Jewish male born in 1945, filed with the New York State Division of Human Rights ("NYSDHR") and the United States Equal Employment Opportunity Commission ("EEOC") a complaint against the County and DSS ("First SDHR Complaint"). Kessler charged principally that, beginning in 1997, defendants had denied him "equal terms, conditions and privileges of Employment" on account of his age, race, gender, and religion, in violation of, inter alia, Title VII and the ADEA (First SDHR Complaint ¶ 10 et seq.), by denying him promotions and other privileges of employment that had been granted to his "younger or non-Jewish or non-White or Female" counterparts (id. ¶ 3). In August 2002, Kessler's "immediate supervisor, Fred Broege, [a] First Deputy Commissioner, ... told [Kessler] that as a result of filing the NYSDHR complaint, [Kessler's] loyalty to DSS was in question and that senior staff members were concerned that [Kessler] was not a part of the team and could not be trusted." (Affidavit of Richard Kessler dated March 24, 2005 ("Kessler Aff."), ¶ 10.)

The EEOC notified Kessler, by letter dated January 3, 2003, of its decision not to bring suit on his behalf with respect to his ADEA claim, stating that that decision did not affect his right to sue and that EEOC permission to sue was not required with respect to that claim. By letter dated January 15, 2003, the EEOC issued Kessler a right-to-sue letter on his Title VII claim. In February 2003, Kessler discussed his discrimination charges and the EEOC letters with William Ryan, a member of the County's Board of Legislators, who informed him shortly thereafter that Kessler's charges had been discussed with the DSS Commissioner. (See Kessler Aff. ¶¶ 15-16; Deposition of William Ryan at 10, 12, 17-18, 21-26.) On March 4, 17, and 26, 2003, in connection with his discrimination charges, Kessler submitted Freedom of Information Law requests to the Office of the Commissioner of DSS, seeking information as to DSS's promotion practices and documents pertaining to the position taken by defendants in his NYSDHR proceeding.

On March 18, 2003, Kessler's role in implementing a human resources training initiative called the Leadership Transformation Group was "summarily curtailed" (Deposition of Richard Kessler ("Kessler Dep.") at 68-69), and he was instructed not to attend an upcoming meeting on that project (see id. at 185-87). He was soon also relieved of his other training duties, including acting as liaison with Pace University in the management fellowship program. (See id. at 197-200.)

On April 2, 2003, Kessler was informed that he was being transferred from DSS's central administrative office in White Plains to the DSS district office in Yonkers, New York. He asserts that Jewru Bandeh, DSS Deputy Commissioner since 1998, who informed him of the transfer,

refused to discuss or provide me with a statement of my assignment and duties in Yonkers. Upon arriving at Yonkers, Associate Commissioner Lee Jacobs, who headed the office, told me that he had not requested my services and that I was re-assigned because "they wanted you out of White Plains."

(Kessler Aff. ¶ 19.) The transfer did not affect Kessler's job title, job grade (which was 15), salary, benefits, or hours of work. However, as described in greater detail in Part I.B. below, Kessler found that he had been stripped of his prior responsibilities, which were replaced by menial tasks.

B. The Present Claims of Retaliation

Some seven months after his transfer to Yonkers, Kessler filed a new complaint with NYSDHR charging DSS with transferring him in retaliation for filing his June 2002 discrimination charges and for making his subsequent requests for information in connection with those charges ("Second SDHR Complaint"). After completing that administrative proceeding, Kessler commenced the present action, alleging that his transfer to Yonkers constituted "a de-facto demotion" (Complaint ¶ 22) that was intended by defendants to punish him for his prior charges of discrimination (see id. ¶¶ 26, 27).

Following a period of discovery that included Kessler's deposition and the depositions of Bandeh, Jacobs, and other DSS officials, defendants moved for summary judgment dismissing Kessler's Complaint, on the grounds, inter alia, that Kessler lacked a good faith, reasonable belief that the actions challenged in his initial discrimination charges were unlawful; that Kessler's assignment to Yonkers did not constitute an adverse employment action; and that there was no causal connection between Kessler's charges of discrimination and his transfer. Defendants also contended that they had proffered legitimate business reasons for Kessler's transfer, which Kessler failed to rebut.

In opposition to the motion, Kessler submitted, inter alia, the official DSS job description for the class of positions called Assistant Commissioner of Social Services, which stated as follows:

Under the general direction of the Commissioner of Social Services or Deputy Commissioner, an incumbent of this position is responsible for the development of program policies and procedures or the direction and control of a large segment of the Department's field operations. This position has overall responsibility for policy formulation, resource allocation, planning and evaluation of programs and procedures, financial and personnel management. This class functions as part of the top management of the Department and is responsible and accountable for the analysis of proposed State and Federal legislation and regulations, Departmental alternatives and impact, and makes recommendations to the Commissioner and Executive staff. This class differs from Deputy Commissioners in that wide latitude and independent judgment is exercised over a significant portion of the Department's operation while Deputy Commissioners may act for the entire Department. Supervision is exercised over a large number of managerial, professional and clerical support staff.

(Exhibit 9 to Deposition of Jewru Bandeh ("DSS Job Description") (emphases added).) In his own deposition, Kessler testified that although he had performed the above duties prior to April 2003, upon his transfer to Yonkers he was, inter alia, relieved of his training duties (see Kessler Dep. at 197-200) and relieved of responsibility for developing and implementing new program initiatives and for...

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