Hicks v. Baines

• Decision Date: 02 February 2010
• Docket Number: Docket No. 06-3782-cv.
• Parties: Dwight D. HICKS, Antonio Melendez, and James E. Smith, Plaintiffs-Appellants, v. 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.
• Court: U.S. Court of Appeals — Second Circuit

593 F.3d 159

Dwight D. HICKS, Antonio Melendez, and James E. Smith, Plaintiffs-Appellants, v. 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.

Docket No. 06-3782-cv.

United States Court of Appeals, Second Circuit.

Argued: April 13, 2009.

Decided: February 2, 2010.

David J. Seeger, Law Office of David J. Seeger, Buffalo, NY, for Appellants.

William R. Hites, Law Office of William Hites, Buffalo, NY, for Appellee.

Before: JACOBS, Chief Judge, and CABRANES, Circuit Judge.^*

DENNIS JACOBS, Chief Judge:

Prior to this lawsuit, defendant Tommy Baines, a supervisor in a residential youth facility of the State of New York, was disciplined by his employer for having engaged in a campaign of racial discrimination against Mark Pasternak, an employee he supervised. Plaintiffs Dwight Hicks, Antonio Melendez, and James Smith — coworkers of Pasternak who were also supervised by Baines — cooperated in the investigations and proceedings, and now allege that Baines threatened to retaliate against them, and did.

Title VII's anti-retaliation provision makes it unlawful "for an employer to discriminate against any ... employee[ ] ... because [that employee] opposed any practice" made unlawful by Title VII or "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). As that provision has been recently interpreted by the Supreme Court, retaliation is unlawful when the retaliatory acts were "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

Plaintiffs sued Baines¹ under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1981a, and the New York State Human Rights Law, see N.Y. Exec. Law § 296, alleging seven categories of retaliatory conduct: sabotage of the workplace to create spurious grounds for berating plaintiffs and imposing discipline on them, punitive schedule changes, "misplaced" documents, threats, false and adverse memoranda, name-calling, and refusal to pay the facility's bills.

The United States District Court for the Western District of New York (Curtin, J.) awarded summary judgment in favor of defendants on all claims. The district court ruled that plaintiffs' evidence (which consisted principally of their affidavits in opposition to defendants' motions for summary judgment) was conclusory and that it did not amount to a meaningful change in the terms and conditions of employment. Plaintiffs appeal.

We vacate and remand as to one of the workplace sabotage and the several punitive scheduling claims; as to the remaining claims, we affirm.²

I

Because this appeal comes to us after a grant of summary judgment to defendants, we consider the facts in the light most favorable to plaintiffs. See Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir.2002).

Baines has been employed by the New York State Office of Children and Family Services ("OCFS") since 1977. "OCFS is dedicated to improving the integration of services for New York's children, youth, families and vulnerable populations; to promoting their development; and to protecting them from violence, neglect, abuse and abandonment." About the New York State Office of Children and Family Services (OCFS), http://www.ocfs.state.ny.us/main/about/. These objectives are achieved by "provid[ing] a system of family support, juvenile justice, child care and child welfare services that promote the safety and well-being of children and adults." Id.

Baines worked his way up at OCFS over 18 years, from ground-level counselor trainee to Director of two secure residential facilities in Buffalo, New York: the Community Residential Home and the Evening Reporting Center ("ERC"). Among those he supervised are Mark Pasternak (the victim of Baines's prior campaign of racial discrimination) and the three plaintiffs, all of whom worked at the Buffalo facilities as Youth Division Aides ("YDA"). Their responsibilities included supervising and counseling the residents, helping to integrate them back into society. Baines, Smith, and Hicks are African-American; Melendez (now deceased) was Hispanic; Pasternak is white.

In 1995, soon after becoming Director, Baines started a campaign of racial discrimination against Pasternak. According to complaints filed by Pasternak and corroborated by plaintiffs, Baines referred to Pasternak in conversations, voicemails, and official memoranda as "White Boy," "That White Motherf —," "That F — ing White Boy," "White Cracker Motherf —," "Pollok," and "Pasterat." Baines encouraged plaintiffs to discredit Pasternak to other OCFS supervisors and to band together against the "White Boy." Baines told plaintiffs that Pasternak's complaints against him could result in the closing of facilities and loss of their jobs.

In early 1996, Pasternak filed a formal misconduct complaint against Baines, and OCFS launched an official investigation. In November 1997, plaintiffs participated in the investigation by making written and oral statements about Baines's treatment of Pasternak. They did so despite their expressed fear that Baines would retaliate.

Plaintiffs' fears were not unfounded. After Baines learned that other employees — including plaintiffs — were cooperating with the investigation, he told staff members that Pasternak was a "rat" and that he would find out who else "ratted" on him and "take care" of those people. In June 1998, the OCFS investigators found Baines guilty of misconduct. He was fined $2000 and received a formal Letter of Reprimand, but he remains as Director, and supervisor of Pasternak and plaintiffs.

Pasternak afterward brought a Worker's Compensation claim based on the stress and anxiety he suffered as a result of Baines's conduct. Plaintiffs testified against Baines at the hearing, and Baines knew it. In August 2000, Pasternak prevailed before the New York Workers' Compensation Board.³

Following plaintiffs' participation in the OCFS investigation and the Workers' Compensation hearing, Baines allegedly engaged in multifarious acts of retaliation to punish plaintiffs for their cooperation in those proceedings. On May 5, 1999, plaintiffs filed this lawsuit alleging unlawful retaliation under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1981a, and the New York State Human Rights Law. Plaintiffs assert seven categories of such retaliatory conduct, which are analyzed below.

At the close of discovery, the district court granted Baines's motion for summary judgment on all claims. Hicks v. Baines, No. 99-civ-0315C, 2006 WL 1994808 (W.D.N.Y. July 14, 2006). The court reasoned that "plaintiffs' affidavits contain only conclusory allegations" that did not "result[ ] in any meaningful change in the terms and conditions of plaintiffs' employment." Id. at *6. In so holding, however, the district court failed to apply the then-recent, but unquestionably controlling, Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), which broadened the scope of Title VII's anti-retaliation protection.⁴

This appeal followed. We now vacate and remand in part and affirm in part.

II

All of plaintiffs' retaliation claims are analyzed pursuant to Title VII principles. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004) ("Most of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 or the Equal Protection Clause."); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir.1996) ("We consider [plaintiff's] state law claims in tandem with her Title VII claims because New York courts rely on federal law when determining claims under the New York [State] Human Rights Law."). Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Title VII also includes an anti-retaliation provision which makes it unlawful "for an employer to discriminate against any ... employee[ ] or applicant[ ] ... because [that individual] opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII investigation or proceeding. 42 U.S.C. § 2000e-3(a). This anti-retaliation provision is intended to further the goals of the anti-discrimination provision "by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of [Title VII's] basic guarantees." White, 548 U.S. at 63, 126 S.Ct. 2405.

"Retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of retaliation by showing: "`(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Jute, 420 F.3d at 173 (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.2001)). The plaintiff's burden in this regard is "de minimis," and "the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient...