The Second Circuit provides a good primer in Hicks v. Baines, decided on February 2. Hicks and two other plaintiffs worked for the New York State Office of Children and Family Services, mandated in part to protect children from violence and abuse. They supported a co-worker's discrimination charge against their supervisor, Baines, who in turn retaliated against the plaintiffs in the Hicks case. The district court granted summary judgment. The Court of Appeals (Jacobs and Cabranes) reverses and find jury issues on some of the retaliation claims. Not only does the Second Circuit look at the new retaliation standard from different angles, but the Court tells us when summary judgment affidavits are too conclusory.
In running through the legal standard for Title VII retaliation claims, the Court of Appeals quotes the Supreme Court in emphasizing that the objective standard in White ensures that not all workplace annoyances are "adverse employment actions." On the other hand, "context matters" such that a job action in one place of employment may be "adverse" under Title VII even though it may not meet that standard were it to surface in the office across the street. Of course, "even minor acts of retaliation can be sufficiently 'substantial in gross' as to be actionable.'"
The following claims in Hicks were too conclusory. (This is worth noting, and plaintiffs' lawyers should study this to ensure that their summary judgment affidavits pass muster):
“Defendant Baines, on numerous occasions, entered the E.R.C. after [Hicks] and his fellow Plaintiffs had secured the facility for the night to purposefully disturb the facility and compromise the security of the site in an effort to not only cause a poor reflection on [Hicks] and his fellow Plaintiffs’ job performances in securing the building, but also to further torment, harass and retaliate against them.” Hicks Aff. ¶ 29
“On or about May 9, 1998, [Hicks] discovered that the facility’s security had been compromised during the night by someone having the security codes and keys to the building (upon information and belief, Defendant Baines was in fact entering the facility during non-operational hours).” Hicks Aff. at ¶ 37.
The first paragraph may at first glance satisfy the "adverse employment action" test under White, but it is too conclusory. Apparently, plaintiff did not provide enough details to really set out how Baines tried to sabotage the workplace. The second paragraph fails because a plaintiff cannot avoid summary judgment "upon information and belief." You can put that in the Complaint, but "information and belief" is not evidence, and you certainly cannot testify in court that you know something happened "on information and belief." Other claims in Hicks' affidavit also fail. While he argued that Baines issued false memoranda about his job performance, the "affidavit ... explains neither circumstances leading up to the memoranda nor why the memoranda were false." These and other examples show how not to write a summary judgment affidavit.
Other portions of the summary judgment affidavit in this case suffice to avoid summary judgment, and they allege actions that are sufficiently adverse under the circumstances to satisfy the Supreme Court's ruling in White. Plaintiffs argued that Baines purposely left a window open which meant that Hicks could not set the facility alarm. Hicks got blamed for this. Judge Jacobs tells us why this claim can go to trial:
This claim withstands scrutiny under generally applicable principles of summary judgment. Context and averments demonstrate that this is no mere allegation that a window was left open. The open window prevented the security system from being armed. The window was behind a locked door; Baines had the key and knew that no one else did. The inability to arm the security system created risks that a vulnerable resident might wander out or become the victim of an intruder. These risks furnished grounds for discipline against whomever failed to arm the security system. And plaintiffs were in fact reprimanded notwithstanding that Baines was the only person in a position to lock the door with the window ajar.
A "punitive scheduling" claim is also good enough for trial under White. Baines manipulated Hicks' schedule to require him to attend mandatory training sessions during his time off and he also assigned Hicks to work in a facility where a juvenile inmate had brought a frivolous claim against Hicks and had threatened violence against his family members. Baines also required one of the plaintiffs to work alone, a hazardous assignment in light of the violent tendencies of some of the youths at the facility. This claim constitutes an "adverse employment action" and the affidavit is specific enough since plaintiffs provide the dates on which they had to work alone.
Wrapping up, the Court of Appeals fuses the evidence with the Supreme Court's emphasis on context:
plaintiffs’ surviving workplace sabotage and punitive scheduling claims, if believed by a jury, constitute “adverse employment actions” for purposes of the third element of plaintiffs’ prima facie case. Plaintiffs work (with a partner) in secure residential facilities where safety concerns are paramount. A reasonable employee in plaintiffs’ position “may well be dissuaded” from participating in a discrimination investigation or proceeding if he knew that in retaliation, he would be disciplined (though innocent) for failing to arm a security system that is needed to protect vulnerable residents, and/or that his work schedule would be changed such that he would have to work (alone) at a facility more dangerous and threatening than the facility at which he usually worked. In so reasoning, we give effect to White’s teaching that “[c]ontext matters.”