Tepperwien v. Entergy Nuclear Operations, Inc.

663 F.3d 556, 2011 U.S. App. LEXIS 22028, 94 Empl. Prac. Dec. (CCH) 44,307, 113 Fair Empl. Prac. Cas. (BNA) 1153, 2011 WL 5142555
CourtCourt of Appeals for the Second Circuit
DecidedOctober 31, 2011
DocketDocket 10-1425-cv
StatusPublished
Cited by239 cases

This text of 663 F.3d 556 (Tepperwien v. Entergy Nuclear Operations, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 2011 U.S. App. LEXIS 22028, 94 Empl. Prac. Dec. (CCH) 44,307, 113 Fair Empl. Prac. Cas. (BNA) 1153, 2011 WL 5142555 (2d Cir. 2011).

Opinions

Judge GLEESON dissents by separate opinion.

CHIN, Circuit Judge:

In this case, plaintiff-appellant James Tepperwien was employed as a security officer by defendant-appellee Entergy Nuclear Operations, Inc. (“Entergy”) at the Indian Point Energy Center (“Indian Point”) in Buchanan, New York. Tepperwien contends that he was sexually harassed by a co-worker, and brought this action below asserting claims for constructive discharge, hostile environment sexual harassment, and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

On Entergy’s motion for summary judgment, the district court dismissed Tepperwien’s constructive discharge claim, but denied the motion as to his hostile environment and retaliation claims. At trial, the jury found for Entergy on the hostile environment claim and for Tepperwien on the retaliation claim. It awarded Tepperwien zero dollars in compensatory and nominal damages and $500,000 in punitive damages. On Entergy’s post-trial motions, pursuant to Fed.R.Civ.P. 50, the district court granted judgment as a matter of law dismissing the retaliation claim. Ruling in the alternative, it vacated the punitive damages award on the grounds the evidence did not support an inference of malice or reckless indifference on the part of Entergy. Finally, the district court held that if Entergy were not entitled to judgment as a matter of law on the retaliation claim, it would grant a new trial pursuant to Rule 59.

Tepperwien appeals from the district court’s rulings. We affirm.

STATEMENT OF THE CASE

[561]*561A. The Facts1

1. Tepperwien’s Employment with Entergy

At all relevant times, Entergy owned and operated two nuclear power plants at Indian Point. Tepperwien first began working at Indian Point as a security officer for Wackenhut Services, Inc., an independent security company, in February 2002. After Entergy took over the operations, Tepperwien was integrated into the Entergy security force in March 2003. He resigned from Entergy in September 2006.

2. The Verbal Harassment

Tepperwien was required, as part of his employment as a security officer, to receive training and to re-qualify annually in the use of firearms. In the spring or summer of 2003, Tepperwien started receiving firearms training from Vito Messina, another Entergy security officer. When Messina was instructing at the firearms range, he was acting as a manager or supervisor. He had the ability to disqualify other officers from using and carrying firearms, and an officer who did not re-qualify was not able to perform many of the functions of a security officer.

Over the course of a one-year period beginning in the summer of 2003, Messina verbally harassed Tepperwien four times. First, in front of other security officers, Messina asked Tepperwien: “Do you think you would ever have sex with a man? Do you think it’s all right?” Tepperwien responded that he could not “explain people” and walked away. Second, the next time Tepperwien went to the range, Messina said to him privately: “I think you and I could be very good friends, very good friends, and we could see each other. And I could take good care of you. And I could even get you [ ] good jobs ... at the plant.” Tepperwien politely left. Third, the next time Tepperwien was at the range, Messina said to him: “[W]hy don’t I excite you? Don’t you-don’t you get excited about me?” Tepperwien responded by saying “I’m ready to shoot,” and proceeded with the drill. Finally, the last time Tepperwien was at the range with Messina, Messina said to a group of twelve officers in Tepperwien’s presence: “[Cjome on, let’s get going, let’s get shooting. Jim Tepperwien is turning me on.”

3.The Buttocks-Grabbing Incident

On November 16, 2004, Tepperwien was in the command post. He was on the telephone with his wife, telling her he was coming home early, when, as he described it, “Messina came out of the armory, shoved against me, put his nails into my buttocks, and then quickly left, bolted away.” Tepperwien tried to stop Messina from leaving, but failed.

Tepperwien reported the incident to his union representative, who in turn reported the incident to an Entergy human resources (“HR”) manager.2 The HR man[562]*562ager assigned a senior HR representative, Grace Sanseverino, to investigate. Sanseverino interviewed Tepperwien, Messina, and five others — the Security Superintendent (Terrence Barry, the head of the security department) and four other security officers. Tepperwien told Sanseverino that he was reluctant to report the incident, and she suggested that he do so anonymously. Tepperwien agreed. As a consequence, although she spoke to Messina, she did not confront him directly about Tepperwien’s accusation. She did ask him whether he had ever been involved with touching another person, without indicating male or female, in any inappropriate manner or place. Messina said he had not. Sanseverino also spoke to all security department employees on duty during the shift that day, and no employee reported having witnessed any inappropriate touching or grabbing.

Tepperwien’s complaint against Messina was not sustained, but Barry and HR nonetheless took certain actions. First, all security officers (including Messina) were required to read and sign a memorandum setting forth Entergy’s policy against discrimination, harassment, and retaliation. Second, all 180 security officers were required to attend an all-day training session on diversity, inclusion, and behavior at work. Third, Messina was removed from his position (which had been temporary) as an instructor at the firing range, although this was at least in part a consequence of whether Messina was in the position in violation of union bargaining unit rules.

In December 2004, a few weeks after Tepperwien had complained about the buttocks-grabbing incident, a fact-finding investigation (“fact-finder”) was opened into his use of sick time.3 He had been out of work for approximately a month apparently as a result of an injury. He used all his remaining sick days and vacation days. About two weeks after he sustained the injury, Tepperwien called the Entergy medical department and stated that he had sustained the injury while participating in a hand-cuffing exercise at work. He had not, however, earlier filled out an accident or incident report and hence Entergy refused to consider this a work-related injury. Entergy conducted a fact-finder into why Tepperwien had used up all his sick time. He was interviewed, and at the conclusion of the investigation, he was issued a letter advising that he would be subject to disciplinary action if he abused his sick time leave in the future.

[563]*5634. The Hair-Touching Incident

When Tepperwien returned to work, he was able to avoid working with Messina for some months. On August 29, 2005, however, he was assigned to drive Messina to a post, where he would stay and Messina would take over the vehicle. During the ride, they were engaging in “cordial conversation” when, as Tepperwien described it:

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663 F.3d 556, 2011 U.S. App. LEXIS 22028, 94 Empl. Prac. Dec. (CCH) 44,307, 113 Fair Empl. Prac. Cas. (BNA) 1153, 2011 WL 5142555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tepperwien-v-entergy-nuclear-operations-inc-ca2-2011.