A male security officer alleged that a male firearms trainer sexually harassed him and that he became the victim of retaliation when he complained of the harassment.
What Happened
In February 2002, “Clark” started working as a security officer at a nuclear power plant in Buchanan, New York—initially as an employee of Wackenhut Services, Inc., and later as an employee of Entergy Nuclear Operations, Inc., which took over operations of the plant.
As a security officer, Clark was required to receive training and to requalify each year in the use of firearms. In the spring or summer of 2003, Clark started receiving firearms training from “William,” another Entergy security officer who was acting as a manager or supervisor in his capacity as a trainer. William had the ability to disqualify his co-workers from using and carrying firearms.
Starting in summer 2003, William verbally harassed Clark four times over the course of a year, asking Clark in front of other officers whether he would ever have sex with a man, stating that he could get Clark good jobs at the plant if they became “very good friends,” asking why he didn’t excite Clark, and announcing to a group of officers that he was sexually attracted to Clark.
There were also two incidents of physical contact. First, on November 16, 2004, William allegedly shoved himself into Clark and grabbed his buttocks. Clark complained, and Entergy investigated. The complaint was not sustained, but the company required all security officers to read and sign a memorandum on its policy against discrimination, harassment, and retaliation; it also required all 180 security officers to attend an all-day training session on diversity, inclusion, and behavior at work. It removed William from his role as firing range instructor—at least in part because there was a question of whether having him in the position violated union bargaining unit rules.
Second, on August 29, 2005, while Clark was driving William to a post, William said Clark was attractive and touched him on the shoulder, neck, and the back of his head. When Clark resisted, William responded, “I’m going to touch you as much as I want, and there’s nothing you can do about it.”
After Clark complained, William was put on paid administrative leave and referred for a mandatory psychological evaluation to make sure he was fit for duty. Upon his return in November 2005, William received a written reprimand and was told to “refrain from any type of inappropriate behavior and conduct in the workplace” or risk termination.
Clark, who had never been the subject of a fact-finding investigation before complaining of sexual harassment, became the subject of a series of four fact-finders after complaining. However, the only discipline he received as a result was one counseling letter that was later rescinded.
He filed a complaint with the Nuclear Regulatory Commission (NRC) in late January 2006 about the alleged sexual harassment and inappropriate sexual behavior at work.
Entergy’s superintendent convinced Clark to come in on his day off on February 2, 2006, for a meeting on “an NRC regulatory matter” that he had supposedly been randomly selected to attend. Instead, he met with the superintendent and Entergy’s outside counsel to answer questions about his NRC complaint. Clark’s three requests to record the meeting were denied, and he was told that he would be terminated if he asked again. However, he was permitted to have a paralegal from his lawyer’s office participate in the meeting via phone.
Clark resigned from his job with Entergy on September 3, 2006. He filed suit against Entergy, alleging constructive discharge, hostile environment, sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964.
The district court dismissed the constructive discharge claim. A jury found for Entergy on the hostile environment claim and for Clark on the retaliation claim and awarded him $500,000 in punitive damages. The district court later dismissed the retaliation claim or, in the alternative, vacated the punitive damages award, and granted Entergy a new trial on the retaliation claim. Clark appealed to the U.S. Court of Appeals for the 2nd Circuit, which covers New York, Vermont, and Connecticut.
What the Court Said
The appeals court majority affirmed the decision, saying that neither the fact-finders nor the counseling letter were material adverse actions, and that other actions that Clark complained about were “trivial harms” and “petty slights or minor annoyances.”
“Entergy made a good-faith effort to comply with its obligations under Title VII,” the court said. “It had an antidiscrimination and antiretaliation policy. All of its employees, including management employees, received training on its antiharassment policy. It provided its employees with numerous avenues to report instances of discrimination or retaliation or harassment.”
Tepperwien v. Entergy Nuclear Operations, Inc. (No. 10-1425-cv) (U.S. Court of Appeals, 2nd Cir., 10/31/11)
In Brief
Training played an important role in this case. The court noted that Entergy had a harassment prevention policy in place that required, among other things, all employees to receive training on the policy. It also pointed out that the company promptly investigated Clark’s complaints and, following his complaint about inappropriate physical contact, required all employees to attend an all-day training session.