Retaliation plaintiff can’t show adverse action

A Title VII retaliation plaintiff could not show that he suffered adverse employment actions after complaining about same-sex harassment by a supervisor, the U.S. Court of Appeals for the Second Circuit ruled in affirming a judgment vacating a jury’s award of $500,000 in punitive damages, Tepperwien v. Entergy Nuclear Operations, Inc., no. 10-1425-cv (Oct. 31).

The plaintiff worked as a security guard at a nuclear power plant. He complained to his employer that he had been subjected to unwanted sexual advances and touching by a male supervisor. In response to the complaint, the employer reprimanded the supervisor and assigned the two men to different work shifts.

According to the plaintiff, after complaining about the harassment, the employer subjected him to a series of baseless inquiries called “fact-finders” which probed into whether he had committed various security violations. In addition, the plaintiff asserted that he experienced hostility from superiors after complaining about the harassment.

Unhappy with this treatment, the plaintiff quit his job and sued the employer for retaliation under Title VII.

But the Second Circuit concluded that, for purposes of his retaliation claim, the plaintiff could not show that he suffered any adverse employment actions as a result of his complaints of harassment.

Regarding the employer’s fact-finders, the court observed that these inquiries were not disciplinary in nature and were justified by the heightened security requirements of a nuclear facility. The court said that “there was good reason for [the employer] to initiate these fact-finders, and thus no reasonable employee would have found them to be materially adverse or stigmatizing.”

Similarly, the court concluded that the plaintiff could not show that he suffered adverse employment actions with respect to the attitude of his superiors, explaining that the “task of securing a nuclear power plant raised significant safety concerns not found in most work environments, and, understandably, there was little tolerance for mistakes and rule violations, or even perceived mistakes. It is not surprising that [the plaintiff] was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion.”