Tepperwien v. Entergy Nuclear Operations, Inc.

10-1425-cv
Tepperwien v. Entergy Nuclear Operations

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2010

(Argued: March 18, 2011 Decided: October 31, 2011)

Docket No. 10-1425-cv

JAMES TEPPERWIEN,
Plaintiff-Appellant,

v.

ENTERGY NUCLEAR OPERATIONS, INC.,
Defendant-Appellee.*

Before:
KATZMANN and CHIN, Circuit Judges,
and GLEESON, District Judge.**

Appeal from a final judgment of the United States

District Court for the Southern District of New York

(Seibel, J.) dismissing plaintiff-appellant's claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq.
AFFIRMED.
Judge Gleeson dissents by separate opinion.

*
The Clerk of the Court is directed to amend the
official caption in accordance with the above.
**
The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
 RAYMOND KUNTZ (Neil VanderWoude, on the
brief), Gerosa & VanderWoude,
Carmel, New York, for Plaintiff-
Appellant.
CATHERINE M. MASTERS (Elisabeth Carey-
Davis, on the brief), Schiff Hardin
LLP, Chicago, Illinois, for
Defendant-Appellee.

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

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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

A. 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,

1
The facts are drawn primarily from the trial record.
"When an appeal comes to us after a jury verdict, we view the
facts of the case in the light most favorable to the prevailing
party." See Kosmynka v. Polaris Indus., 462 F.3d 74, 77 (2d Cir.
2006). Here, although Entergy was the prevailing party with
respect to the hostile environment claim and the claim for
compensatory damages for retaliation, as a matter of convenience,
we view all the evidence in the light most favorable to
Tepperwien.

-3-
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

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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: "[C]ome 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 manager

2
Entergy had a harassment prevention policy that
prohibited harassment in the workplace and required all employees
to report any instances of harassment. Pursuant to the policy,
all Entergy employees, including managers, received training
regarding the harassment prevention policy. Employees could
report violations to: (1) a supervisor or manager; (2) HR; (3)
the Employee Concerns office; (4) the on-line reporting system;

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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,

(5) the ethics hotline; and (6) the union (for bargaining-unit
employees).

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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.

3
At trial, Tepperwien described his understanding of a
"fact-finder" at Entergy:

A fact-finding is a document. You
usually go to a fact-finding with management
and with your union rep. And the fact-finder
is pretty much: Did something happen? Was
it good? Was it bad? Can we . . . find out
if we should be doing something differently?
Shall we correct the situation or policy?

Under most situations, fact-finders are
there to be helpful, get everybody in a room
and see if some other action has to proceed
after that.

Patrick O'Hara, the chief shop steward of Tepperwien's union, who
was called as a witness by Tepperwien, explained that "when
things happen, the company conducts a fact finding. There's a
union representative there. There's a management representative
there. They ask questions." A fact-finder is a process by which
"the company investigates various issues." O'Hara would review
"about 30 fact findings . . . a week." Fact-finders are not
disciplinary in nature and cannot be grieved by the union, and
they do not fall within Entergy's four levels of discipline
(verbal warning, written reprimand, suspension, and termination).
Depending on the findings, a fact-finder could lead to
disciplinary action.

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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.

4. 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:
Vito started telling me that he found
things about me attractive, a number of
things; the way I looked, the way I
presented myself. And in particular, he
liked my hair style. And we're driving
up to the post. And the next thing I
knew, he had his hands on my shoulder and
going up my neck and into the back of my
head.

-8-
Tepperwien told Messina not to touch him, and Messina
responded "I'm going to touch you as much as I want." They

arrived at their destination and parted.
The next day, Tepperwien reported the incident to

the site security superintendent, John Cherubini. Cherubini
confronted Messina, and Messina admitted touching
Tepperwien's hair, although he contended he was just

removing something from Tepperwien's hair. Messina also
admitted telling Tepperwien he had "nice hair." Later that

day, Messina "was walked off post." He was put on paid

administrative leave pending investigation and was referred
(by Barry) for a mandatory psychological evaluation to

ensure his fitness for duty.

Messina returned to work on November 9, 2005,
after he was found fit for duty. He was issued a "Letter of

Discipline," signed by Barry; this was a written reprimand

to be placed in Messina's personnel file. The letter

advised Messina that Entergy expected him to "refrain from
any type of inappropriate behavior and conduct in the
workplace." It advised him that "[f]ailure to comply with

the terms of this reprimand will result in your termination
of employment as an Entergy Nuclear Security Officer." 4

4
O'Hara, the chief shop steward, testified that if
Entergy had sought to terminate Messina'a employment on November
9, 2005, the union "clearly" would have filed a grievance because

-9-
 In November 2005, shortly after Messina returned
to work from his administrative leave, Tepperwein met with

Barry, a site security supervisor, and union
representatives. Barry told Tepperwien that he had wanted

to fire Messina, but after consulting with others, he
decided to impose a ten-week suspension instead. At one
point, Tepperwien said to Barry, facetiously, "Terrence,

what are you going to do now? Give me a letter that says I
can protect myself? That I can -- I can kick Vito in the

groin if he comes after me?" Barry responded, "[N]o, no,

no. If Vito ever touches you again or anybody ever touches
you again, I want you to secure your post and go and tell

management and report it." He added that he thought

Tepperwien was being "overemotional" and said "I don't think
I'm going to let you back on site." Tepperwien responded by

denying he was being overemotional and stated that he had

every intention of going back on site.

5. Entergy's Additional Actions
With Respect to Tepperwien
On January 7, 2006, Tepperwien was the subject of

another fact-finder. A gas mask was discovered missing from

"the only thing that we . . . knew for sure was that Mr. Messina
had touched Mr. Tepperwien's hair . . . . [I]f the company was
going to terminate Mr. Messina for touching another employee's
hair, surely an arbitrator would overturn that. We were very
confident. And I think the company knew that."

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a building on Tepperwien's security route. A fact-finder
was conducted to find out why Tepperwien had not reported

the mask missing. Tepperwien acknowledged that he had not
checked all his assigned equipment when he took over the

post, but he explained that it was physically impossible for
him to check his equipment at that post, as the equipment
was not stored there.

Approximately two weeks later, a counseling letter
was issued to Tepperwien confirming that he had been

counseled to check and inspect assigned equipment when

assuming a post. Another security officer, who held the
post the shift before Tepperwien took over, was similarly

given a fact-finder and counseling letter for failing to

inspect the contingency equipment and failing to notice a
gas mask was missing. The other officer accepted his fact-

finding and counseling. As discussed below, Tepperwien

objected, and his counseling letter was later rescinded.

In late January of 2006, Tepperwien filed a
complaint with the Nuclear Regulatory Commission (the "NRC")
regarding the alleged sexual harassment and inappropriate

sexual behavior at the Indian Point firing range. On
February 2, 2006, Barry asked Tepperwien to attend a meeting
on "an NRC regulatory matter for Entergy." Barry told

Tepperwien that his "name had been picked out of a hat," and

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even though it was Tepperwien's day off, he pressed
Tepperwien to come in for the meeting.

In fact, the meeting was about the complaint that
Tepperwien had filed with the NRC, and Entergy's outside

counsel attended. Tepperwien asked if he could tape-record
the meeting. He was told by one of the lawyers no.
Tepperwien asked again and was told no again, this time by a

supervising attorney, Darryl Shapiro. Tepperwien asked a
third time about recording the meeting, and this time

Shapiro responded: "We don't have a tape recorder. . . .

If you continue this line, we will request -- since you're
not cooperating, we will request that the company

immediately terminate you." Tepperwien asked if he could

call his lawyer. He was allowed to do so, and a paralegal
from his lawyer's office was permitted to participate in the

meeting by telephone.

In January or February 2006, when Tepperwien was

on duty at approximately 7 a.m., another officer came in,
about an hour and a half late. Tepperwien stopped him
because "there was a tremendous odor coming off of him."

The officer left, returning half an hour later. Tepperwien
let him in, and reported to a supervisor a few minutes later
that the officer had come in late "reeking." Tepperwien

also told the officer: "I don't want to get the guy in

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trouble. He seemed fine. He didn't slur his words, didn't
trip over his feet." The officer was later sent home as

being unfit for duty. Two other supervisors initiated a
fact-finder the same day and asked Tepperwien why he

admitted a "drunk" officer into the work site. Tepperwien
responded that "[n]obody said he was drunk" and advised that
he had submitted an incident report. As Tepperwien

described it, the fact-finder "pretty much" ended "right
then and there."

In mid-February 2006, Tepperwien met with Barbara

Taggart, the coordinator of Entergy's Employee Concerns
Program ("ECP") at Indian Point, to raise certain concerns.

She instructed him to put his concerns in writing, and he

did so, on or about February 13, 2006. Tepperwien
complained about a number of matters. He complained about

the gas mask fact-finder, explaining that he could not have

possibly discovered and reported the missing mask upon

assuming his post. He complained about the counseling
session and counseling letter. He asserted that morale in
the security department was "extremely low." He complained

about his meeting with Barry, and how Barry told him his
name had been pulled from a hat. He expressed concern about
retaliation from management. Although he did not include

the matter in his memorandum, Tepperwien told Taggart when
he met with her of Messina's sexual behavior.

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 On March 6, 2006, Taggart responded to Tepperwien.
As for the sexual harassment, Taggart noted that the matter

had been investigated and corrective actions taken,
including moving the other officer (Messina) off

Tepperwien's shift. As for the actions relating to the
missing gas mask, Taggart noted that the counseling session
provided to Tepperwien was appropriate at the time based on

the known information, as management understood that
Tepperwien had not checked his equipment. Based on

additional information, however, Taggart noted that

management had revisited the issue and was rescinding the
counseling letter. As for the meeting with Barry, Taggart

acknowledged that the notification for the meeting "was not

handled as well as it could have been," and that action had
been taken to address the issue and prevent recurrence.

Tepperwien thereafter completed an ECP "Customer

Satisfaction Survey," and he noted that overall he was

"satisfied" with his interactions with ECP and he was
"satisfied" with the response to his concerns.
In March 2006, there was an "outage" at Indian

Point, during which the reactors were shut down for repair.
During outages, additional security is required and
consequently shifts are combined. Tepperwien was scheduled

to work with Messina the first two days. He complained both

-14-
days and was switched to another assignment both days. On
the third day, Tepperwien spoke to his union representative,

who suggested that Tepperwien switch to the night shift.
Tepperwien discussed it with his wife. He agreed, in part

because he would have every weekend off. He asked to be and
was moved to the night shift. After the outage was
completed, he "decided to stay on nights a little bit

longer."
Just prior to the outage, Barry conducted a

meeting of the "day crew" of the security force as well as

several managers. Another security officer asked a question
about staffing at a particular gate, and Barry "exploded"

and yelled at the officer that he should not be asking such

questions. At some point Barry addressed the issue of
conflicts, saying: "[T]here are people . . . that don't

like each other." He said: "There are people here I don't

like," and stared at Tepperwien.

In July or August 2006, Tepperwien was stationed
in a "bullet-resistant enclosure" ("BRE"). Once a security
officer was inside a BRE, he was not supposed to leave until

he was relieved by another officer. At approximately 4
a.m., Tepperwien received a telephone call from a lieutenant
who asked Tepperwien to watch a truck that was parked in the

yard. The truck was partially in Tepperwien's view, and he

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watched it from inside the BRE for about two hours before
being relieved by another officer. He told the relief

officer of the lieutenant's order, and suggested that the
relief officer call his supervisor to get instructions on

whether to continue watching the truck.

A week later, Tepperwien was asked if he had
passed on the orders to the officer who relieved him and
Tepperwien responded yes. A week after that, Tepperwien was

"pulled in for a fact-finder" and asked about the assignment
to watch the truck. In particular, he was asked whether he

had taken "escort duty" -- physical charge -- of the truck.

The fact-finder ended, and Tepperwien never received a
counseling letter with respect to this incident.

6. Tepperwien Resigns

After the last fact-finder, Tepperwien decided

that he no longer wished to be employed at Entergy. He
decided to go back to his "old profession" -- x-ray

technology -- and determined that if he found another job,
or even "a promise of one," he would resign from Entergy.
On September 3, 2006, he submitted a letter resigning

effective two weeks later. Two weeks later he filled out a
Form W4 with his new employer.
Before leaving Entergy, Tepperwien filled out a

"Separating Employee Survey," in which he stated that he was

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leaving for better working conditions, better or more
flexible work hours, and personal considerations. He also

"agree[d]" that he would consider working for Entergy again
and that he had a good working relationship with his

supervisor. He "strongly disagree[d]" that his work
environment had an atmosphere of teamwork and cooperation.
He "agree[d]" that "[o]verall, I was satisfied with my job."

B. Prior Proceedings
In March 2006, Tepperwien filed a charge of sexual

harassment and retaliation against Entergy with the Equal

Employment Opportunity Commission (the "EEOC"). Tepperwien
received a right to sue letter from the EEOC on October 24,

2006.

Tepperwien commenced this action below on January
19, 2007. Tepperwien initially sued additional defendants,

including his union and Messina, and asserted claims under

federal and state law, but in orders entered June 18, 2007

and July 12, 2007, the district court (Brieant, J.)
dismissed all claims except the Title VII claims against
Entergy. Tepperwien has not appealed from these orders.

Following discovery, Entergy moved for summary
judgment. On March 27, 2009, in a thorough, 30-page
decision, the district court (Seibel, J.) granted the motion

in part and denied the motion in part. Tepperwien v.

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Entergy Nuclear Operations, Inc., 606 F. Supp. 2d 427
(S.D.N.Y. 2009). The district court denied the motion as to

Tepperwien's hostile environment and retaliation claims, but
granted the motion dismissing his constructive discharge

claim. Tepperwien moved for reconsideration of the
dismissal of the constructive discharge claim, and the
district court denied the motion. Tepperwien v. Entergy

Nuclear Operations, Inc., No. 07 CV-433 (CS) (S.D.N.Y. Mar.
27, 2009), ECF No. 62.

The case was tried to a jury beginning on July 13,

2009. The jury returned its verdict on July 21, 2009,

finding for Entergy on the sexual harassment claim and for
Tepperwien on the retaliation claim, and awarding, with

respect to retaliation, zero in damages for pain and

suffering, $500,000 in punitive damages, and zero in nominal

damages.
Entergy moved pursuant to Fed. R. Civ. P. 50 or,

alternatively, for a new trial pursuant to Rule 59 or a
remittitur with respect to damages. Tepperwien cross-moved
for a new trial on his hostile environment claim and to

reinstate the constructive discharge claim, which had been
dismissed on summary judgment. He separately moved for
attorneys' fees. On March 16, 2010, in a thorough and

carefully considered memorandum decision and order, the

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district court (Seibel, J.) granted Entergy's motion for
judgment as a matter of law as to the retaliation claim and,

in the alternative, granted Entergy a new trial on
retaliation and vacated the punitive damages award. 5
Tepperwien v. Entergy Nuclear Operations, Inc., No. 07 CV-

433 (CS), slip op. at 18 (S.D.N.Y. Mar. 16, 2010), ECF No.
124. The district court granted Entergy's request to strike

Tepperiwen's cross-motion and denied his fee application as
moot. Id. at 29. Judgment was entered accordingly, and
this appeal followed.

DISCUSSION

On appeal, we review de novo a district court's

grant of a motion for summary judgment pursuant to Rule 56

or a motion for judgment as a matter of law pursuant to Rule
50, applying the same standards applied by the district

court. See Advance Pharm., Inc. v. United States, 391 F.3d

377, 390 (2d Cir. 2004) (Rule 50); Carlton v. Mystic
Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2002) (Rule 56).
Summary judgment may be granted only if "there is no genuine

5
We note that during trial the district court expressed
some reluctance as to whether it should submit the punitive
damages claim to the jury, stating: "On the one hand, I don't
see how a jury could possibly come back with punitive damages in
this case, and that probably means I shouldn't let it go to
them." In the end, the district court took the more cautious
approach, submitting the claim to the jury, but noting that she
would revisit the issue if the jury were to award punitive
damages.

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dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Judgment as a matter of law may be entered against a party
only if "a reasonable jury would not have a legally

sufficient basis to find for [a] party on that issue." Fed.
R. Civ. P. 50(a). A Rule 50 motion "'may only be granted if
there exists such a complete absence of evidence supporting

the verdict that the jury's findings could only have been
the result of sheer surmise and conjecture, or the evidence

in favor of the movant is so overwhelming that reasonable

and fair minded [persons] could not arrive at a verdict
against [it].'" Brady v. Wal-Mart Stores, Inc., 531 F.3d

127, 133 (2d Cir. 2008) (quoting Luciano v. Olsten Corp.,

110 F.3d 210, 214 (2d Cir. 1997) (alterations in original)).
This appeal presents two principal issues: (1)

whether the district court erred in granting judgment as a

matter of law dismissing the retaliation claim; and (2)

whether, alternatively, the district court erred in vacating
the punitive damages award with respect to the retaliation
claim. We address the two issues in turn.

A. Retaliation
Title VII contains an antiretaliation provision,
which makes it unlawful for an employer to discriminate

against an employee for opposing any practice made unlawful

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by Title VII. Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 59-60 (2006); Hicks v. Baines, 593 F.3d 159,

164 (2d Cir. 2010); see 42 U.S.C. § 2000e-3(a). The
provision seeks to further Title VII's goal of a workplace

free from discrimination on the basis of race, ethnicity,
religion, or gender "by preventing an employer from
interfering (through retaliation) with an employee's efforts

to secure or advance enforcement of [Title VII]'s basic
guarantees." Burlington, 548 U.S. at 63. Title VII thus

prohibits an employer from taking "materially adverse"

action against an employee because the employee opposed
conduct that Title VII forbids or the employee otherwise

engaged in protected activity. Id. at 56, 59; see also

Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011)
("Title VII's antiretaliation provision must be construed to

cover a broad range of employer conduct."). 6

6
Retaliation claims under Title VII are generally
analyzed under a modified version of the McDonnell Douglas test.
First, the plaintiff must establish a prima facie case of
retaliation by showing: (1) his participation in protected
activity; (2) defendant's knowledge thereof; (3) materially
adverse employment action; and (4) a causal connection between
the protected activity and the adverse employment action.
Second, if the plaintiff meets this burden, the defendant
employer must then articulate a legitimate, non-discriminatory
reason for its adverse employment action. Third, if the employer
does so, then the burden shifts back to the plaintiff to prove
that retaliation was a substantial reason for the adverse action.
Hicks, 593 F.3d at 164-65 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973)); see also Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). We need not
engage in the full analysis here, as we focus on the third
element.

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 Here, the principal question presented is whether
the purportedly retaliatory actions taken by Entergy against

Tepperwien were "materially adverse." The district court
granted judgment as a matter of law in favor of Entergy on

the basis that the actions were not, as a matter of law,
materially adverse.
In Burlington, the Supreme Court explained that

Title VII's antiretaliation provision covers only an
employer's actions that are "materially adverse":

The antiretaliation provision
protects an individual not from all
retaliation, but from retaliation that
produces an injury or harm. . . . In our
view, a plaintiff must show that a
reasonable employee would have found the
challenged action materially adverse,
"which in this context means it well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination."

Burlington, 548 U.S. at 67-68 (quoting Rochon v. Gonzales,

438 F.3d 1211, 1219 (D.C. Cir. 2006)). Actions that are

"trivial harms" -- i.e., "those petty slights or minor
annoyances that often take place at work and that all
employees experience" -- are not materially adverse.

Burlington, 548 U.S. at 68; accord Hicks, 593 F.3d at 165.
As the Court reminded us in Burlington, Title VII does not
set forth "'a general civility code for the American

workplace.'" 548 U.S. at 68 (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).

-22-
 Material adversity is to be determined
objectively, based on the reactions of a reasonable

employee. Id. at 69-70. "Context matters," as some actions
may take on more or less significance depending on the

context. Id. at 69. Alleged acts of retaliation must be
evaluated both separately and in the aggregate, as even
trivial acts may take on greater significance when they are

viewed as part of a larger course of conduct. Hicks, 593
F.3d at 165.

In his brief on appeal, Tepperwien contends that

he was subject to at least nine acts of retaliation by
Entergy: (1) three fact-finding sessions; (2) a counseling;

(3) Barry's threat of termination; (4) Shapiro's threat of

termination; (5) Barry's comments and stare during the
employee meeting; (6) Barry's falsifying of the reason for

bringing Tepperwien in on his day off; and (7) being forced

to switch from a day shift to the night shift. We agree

with the district court that no reasonable jury could have
found that these actions, taken as described by Tepperwien
and considered both individually and in the aggregate, were

materially adverse.
1. The Fact-Finders
Tepperwien contends that three fact-finders were

retaliatory: (a) January 2006, regarding the missing gas
mask; (b) January or February of 2006, regarding

-23-
Tepperwien's letting an apparently drunk security officer
onto the work site; and (c) July or August 2006, regarding

Tepperwien's carrying out of orders to watch a truck while
he was in the BRE. 7 The district court correctly held that
the three fact-finders were not materially adverse as a

matter of law.
First, fact-finders at Entergy were not

disciplinary in nature. They fell outside of Entergy's four
levels of discipline and could not be grieved by the union.
They were common occurrences at Entergy, as the shop steward

testified that he reviewed thirty fact-finders a week. They

were triggered when there was a reason to investigate, e.g.,

to determine whether corrective action should be taken.

Indeed, Tepperwien acknowledged that in "most situations,
fact-finders are there to be helpful, get everybody in a

room and see if some other action has to proceed after

that."
Second, there was good reason for Entergy to
initiate these fact-finders, and thus no reasonable employee

would have found them to be materially adverse or

stigmatizing. In the first, a gas mask was discovered

7
The record contains evidence relating to a fourth fact-
finder: the December 2004 fact-finder relating to Tepperwien's
use of sick leave. On appeal, Tepperwien complains only of three
fact-finders, although he does not specify which ones. At trial,
however, he did not argue that this earlier fact-finder was
retaliatory in nature.

-24-
missing on Tepperwien's assigned route; another security
officer was subjected to a fact-finder for the missing gas

mask as well. In the second, Tepperwien permitted a
security officer to pass through a security checkpoint and

enter the work place; the officer was apparently intoxicated
and was later sent home as unfit for duty. In the third,
while Tepperwien was on watch, an unidentified truck was

permitted to remain in the yard -- outside a nuclear power
plant -- for at least two hours. Even assuming Tepperwien

acted perfectly appropriately in all three incidents, there

certainly was good reason for Entergy management to at least
look into these situations.

Third, while fact-finders certainly could lead to

disciplinary action, they did not here. Although a
counseling letter was issued with respect to the gas mask

incident, it was later rescinded. In fact, Tepperwien never

complained to the ECP or his union about the fact-finders

because, as he acknowledged, "[t]here was no reason to,
because they all died. They didn't go anywhere." (Tr. at
224-25). He admitted that none of the fact-finders resulted

in any discipline.
Finally, Tepperwien argues that he had not been
subject to a fact-finding for the three years prior to his

filing of his various complaints. The testimony cited for

-25-
this proposition, however, is equivocal, 8 but even assuming
that Tepperwien was not subjected to any fact-finders until

after he complained of sexual harassment, this is proof only
of causation and a retaliatory motive -- not of materiality.

Again, Title VII does not protect an employee from "all
retaliation," but only "retaliation that produces an injury
or harm." Burlington, 548 U.S. at 67; see Hicks, 593 F.3d

at 164-65. Even assuming they were causally connected to
Tepperwien's protected activity, the three fact-finders --

occurring over the course of approximately eight months,

consisting only of brief inquiries, and resulting in no
discipline -- were merely "trivial harms" or "petty slights

or minor annoyances." Burlington, 548 U.S. at 68.

2. The Counseling
Tepperwien argues that the counseling he received

with respect to the missing gas mask was a material adverse

action. We agree with the district court that it was not as

a matter of law.
First, the counseling was rescinded after
Tepperwien contacted the ECP. See Schiano v. Quality

Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006)
(holding that change in employee's reporting structure was

8
Tepperwien testified that "[t]he only other fact-
finders I can tell you about had to do with letters that I
received stating that I had violated or had abused company sick
time policy. That's all I can remember." His counsel then
immediately tried to refresh his recollection about other
apparent fact-finders.

-26-
not adverse employment action where it was rescinded with an
apology day after employee complained); Sanders v. N.Y.C.

Human Res. Admin., 361 F.3d 749, 756 (2d Cir. 2004) (holding
that jury could reasonably find that negative performance

evaluation did not constitute material adverse action, where
it was rescinded and destroyed two weeks after it was
issued); cf. Nagle v. Vill. of Calumet Park, 554 F.3d 1106,

1120-21 (7th Cir. 2009) (holding that no adverse action
occurred where plaintiff never served suspension). While we

do not hold that rescinded discipline can never constitute

materially adverse action, we do hold that in the
circumstances here, the rescinded counseling letter was not

a material adverse employment action.

Second, as Tepperwien acknowledged, the counseling
did not place him in an active disciplinary process. The

form itself is titled "Employee Discussion Guide," and it

confirmed that Tepperwien was not in an active "stepwise"

disciplinary process. It noted only that the discussion was
intended to be a "counseling" rather than a suspension,
verbal warning, letter of reprimand, or "other" discipline.

Hence, the form itself makes clear that a counseling is
below even a warning or reprimand. The counseling was
merely a discussion of a legitimate safety concern -- a

missing piece of safety equipment and Tepperwien's actions
in connection therewith.

-27-
 Third, even assuming the counseling rose to the
level of some form of criticism, we have held, in the

context of the issuance of a "counseling memo," that
"criticism of an employee (which is part of training and

necessary to allow employees to develop, improve and avoid
discipline) is not an adverse employment action." Weeks v.
N.Y. State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001),

abrogated on other grounds by Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). 9

Finally, the lack of material adversity is also

demonstrated by the fact that Tepperwien was not the only

officer to be counseled for this issue. Another security
officer was counseled for the same failure to check the

equipment, and the shop steward testified that this "was an

issue that had come up before, not just with Mr.
Tepperwien," and the problem was "a system error, not a

behavior issue." The focus here clearly was not on

Tepperwien, and it was not likely that counseling of this
nature, which was given to other employees as well, would

deter a reasonable employee from complaining of
discrimination.

9
Accord Perez v. N.Y. & Presbyterian Hosp., No. 05 Civ.
5749 (LBS), 2009 WL 3634038, at *15 (S.D.N.Y. Nov. 3, 2009)
(holding that disciplinary reprimand that did not alter job
responsibilities or otherwise affect employment was not
sufficiently material to constitute adverse employment action);
Potenza v. W. Irondequoit Cent. Sch. Dist., No. 06-CV-6407, 2009
WL 2876204, at *8 (W.D.N.Y. Sept. 2, 2009) (where job counseling
did not result in any diminution of pay, status, or benefits, it
was not adverse employment action).

-28-
 In light of all the circumstances, we agree with
the district court that no reasonable factfinder could have

concluded that the withdrawn counseling was "the sort of
action that would have dissuaded a reasonable employee in

[Tepperwien's] position from complaining of unlawful
discrimination."10
3. The Remaining Actions
The remaining actions of which Tepperwien

complains fall into the category of "trivial harms" and
"petty slights or minor annoyances." Barry's purported

threat to walk Tepperwien off site was made after Tepperwien

facetiously asked whether he could "kick Vito in the groin."
The "threat," which was made in the course of a heated

conversation, was never carried out. Shapiro's purported

"threat of termination" was made after Tepperwien asked not

once, not twice, but three times to tape record the meeting.

This "threat" likewise was never carried out, and Tepperwien

10
At the summary judgment stage, the district court
concluded that the plaintiff had "presented evidence sufficient
to create a triable issue as to whether the counseling was
retaliatory." Tepperwien v. Entergy Nuclear Operations, Inc.,
606 F. Supp. 2d 427, 445 (S.D.N.Y. 2009). Although there is some
tension between this conclusion and the district court's decision
to grant Entergy's Rule 50 motion on retaliation, as the district
court noted in its Rule 50 opinion, the "evidence at trial
suggesting the counseling amounted to an adverse employment
action offered a substantially weaker picture than that presented
at the summary judgment stage." Tepperwien v. Entergy Nuclear
Operations, Inc., No. 07 CV-433 (CS), slip op. at 10 (S.D.N.Y.
Mar. 16, 2010), ECF No. 124.

-29-
was allowed to call his lawyer, and someone from the
lawyer's office was permitted to participate in the meeting

by telephone. See Vazquez v. Southside United Hous. Dev.
Fund Corp., No. 06-CV-5997 (NGG)(LB), 2009 WL 2596490, at

*12 (E.D.N.Y. Aug. 21, 2009) ("Courts interpreting
Burlington Northern have held that empty verbal threats do
not cause an injury, and therefore are not materially

adverse actions, where they are unsupported by any other
actions.").

Barry's comment and stare during the employee

meeting are not materially adverse actions. See Burlington,
548 U.S. at 68 ("'[P]ersonality conflicts at work that

generate antipathy and snubbing by supervisors and co-

workers are not actionable.'" (quoting 1 Barbara Lindemann &
Paul Grossman, Employment Discrimination Law 669 (3d ed.

1996))); Martinez v. N.Y.C. Dep't of Educ., No. 04-CV-2728

(LTS)(DFE), 2008 WL 2220638, at *12 (S.D.N.Y. May 27, 2008)

("[I]ncidents where [supervisor] publicly yelled at
[plaintiff] for various reasons or called him 'shit' . . .
constitute, as a matter of law, the sorts of petty slights

and personality conflicts that are not actionable.").
Barry's use of a false reason to bring Tepperwien in for a
meeting to discuss his complaint to the NRC -- a meeting

that Tepperwien surely would have wanted to attend anyway --

-30-
was hardly the kind of action that would dissuade a
reasonable employee from complaining. Even assuming Barry's

motive was retaliatory, the method by which he summoned
Tepperwien to the meeting was not in itself a material

adverse action.
Finally, the switch to the night shift was not
materially adverse because, as his own testimony makes

clear, Tepperwien requested it. During the outage, the day
shifts were combined, and as a consequence Tepperwien was

scheduled to work with Messina. Tepperwien met with O'Hara,

the union shop steward, to complain, and O'Hara suggested
switching to nights. After speaking with his wife,

Tepperwien agreed to make the request, in part because he

would have every weekend off. Tepperwien told O'Hara that
he would take the shift change, O'Hara made the request to

Barry, and Barry granted it. Even after the outage ended,

Tepperwien "decided to stay on nights." Hence, the record

shows clearly that Tepperwien asked to be moved to the night
shift, and there is nothing in the record to suggest that he
ever objected to working nights or that he ever asked to be

moved back to the day shift.
4. The Actions in the Aggregate
While the actions fail individually to provide a

basis for a reasonable jury to conclude that Tepperwien was

-31-
subjected to material adverse employment actions, they also
fail in the aggregate. Individually the actions were

trivial, and placed in context they remain trivial. Taken
in the aggregate, the actions still did not adversely affect

Tepperwien in any material way. "Zero plus zero is zero."
MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38
(2d Cir. 1998); cf. Gorence v. Eagle Food Ctrs., Inc., 242

F.3d 759, 763 (7th Cir. 2001) ("And it is simply not true,
we want to emphasize, that if a litigant presents an

overload of irrelevant or nonprobative facts, somehow the

irrelevancies will add up to relevant evidence of
discriminatory intent. They do not; zero plus zero is

zero.").

The context is also significant. The security
unit at Indian Point was akin to a law enforcement or quasi-

military unit, with a chain of command, lieutenants and

chiefs, handcuffing exercises, the deployment of weapons,

and the use of BREs. 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 Tepperwien
was treated in a rough and tumble manner rather than with

kid gloves or in a genteel fashion. See Hicks, 593 F.3d at

-32-
165 (noting that "'context matters'" when evaluating whether
a action is "materially adverse" (quoting Burlington

Northern, 548 U.S. at 69)).
Viewing all of the actions in the aggregate, we

conclude that a reasonable employee in Tepperwien's
situation would not have been deterred from engaging in
protected activities. Indeed, while the test is an

objective one, it is relevant that Tepperwien himself was
not deterred from complaining -- he complained numerous

times. Moreover, Tepperwien acknowledged, after all the

incidents and when it was clear that he was leaving Entergy,
that he would consider working for Entergy again and that

overall he was satisfied with his job at Entergy.

Accordingly, we hold that the district court
properly granted Entergy's motion for judgment as a matter

of law dismissing the retaliation claim.

B. Punitive Damages

Our decision above obviates the need to reach the
punitive damages claim. Nonetheless, we discuss the claim
because punitive damages were the only damages awarded by

the jury, and Tepperwien's lack of entitlement to punitive
damages is clear.
Punitive damages are available under Title VII

where an employer discriminates or retaliates against an

-33-
employee with "malice" or "reckless indifference" to the
employee's federally protected rights. Kolstad v. Am.

Dental Ass'n, 527 U.S. 526, 534 (1999) (quoting 42 U.S.C. §
1981a(b)(1)); see Farias v. Instructional Sys., Inc., 259

F.3d 91, 101-02 (2d Cir. 2001). A plaintiff can satisfy
this burden by presenting evidence that the employer
discriminated (or retaliated) against him with "conscious

knowledge it was violating the law," or that it engaged in
"'egregious' or 'outrageous' conduct from which an inference

of malice or reckless indifference could be drawn." Farias,

259 F.3d at 102.
Even where a plaintiff establishes malice or

reckless indifference, a corporate defendant may still avail

itself of an affirmative defense. An employer can avoid
liability for punitive damages by showing that it "[1] had

an antidiscrimination policy and [2] made a good faith

effort to enforce it." Zimmermann v. Assocs. First Capital

Corp., 251 F.3d 376, 385 (2d Cir. 2001). In Kolstad, the
Supreme Court made clear that, "in the punitive damages
context, an employer may not be vicariously liable for the

discriminatory employment decisions of managerial agents
where these decisions are contrary to the employer's 'good-
faith efforts to comply with Title VII.'" 527 U.S. at 545

(quoting Kolstad v. Am. Dental Ass'n, 139 F.3d 958, 974
(D.C. Cir. 1998) (Tatel, J., dissenting)).

-34-
 The jury's award of $500,000 in punitive damages
on Tepperwien's retaliation claim was wholly without basis.

Tepperwien presented little if any evidence of malice or
reckless indifference or egregious or outrageous behavior on

the part of Entergy. He relies principally on Barry's
conduct, including Barry's actions and statements discussed
above. But for the same reasons that we conclude that this

conduct was not materially adverse, we conclude, as a matter
of law, that this conduct was not a sufficient basis for an

award of punitive damages. While Barry surely could have

treated Tepperwien more delicately, his conduct did not
evince a reckless disregard for Tepperwien's federally-

protected rights. To the contrary, Barry was very much a

part of Entergy's effort, as discussed below, to address
Tepperwien's concerns.

As the district court concluded, and as a

reasonable jury could only so find, Entergy made a good-

faith effort to comply with its obligations under Title VII.
It had an antidiscrimination and antiretaliation policy.
All its employees, including management employees, received

training on its anti-harassment policy. It provided its
employees with numerous avenues to report instances of
discrimination or retaliation or harassment.

When Tepperwien complained to HR in November 2004
of physical abuse by Messina, Entergy investigated the

-35-
matter carefully, and even though the charge was not
sustained, Entergy took concrete action: distributing a

department-wide memo (signed by Barry) reminding employees
of the company's expectations regarding workplace behavior;

requiring all security department employees to attend
training; and removing Messina as range instructor. When
Tepperwien complained to his supervisor in August 2005 that

Messina had touched his hair inappropriately, Entergy
investigated swiftly, and Messina was walked off-site and

placed on administrative leave (albeit paid) the same day.

Messina was sent for psychological evaluation (by Barry)
before he was reinstated, and when he was reinstated, a

written reprimand was placed in his personnel file. 11
When Tepperwien filed a complaint with the NRC in

January 2006, Entergy management convened a meeting to
discuss his concerns; Tepperwien was permitted to have a

representative from his lawyer's office participate in the

meeting by telephone. And when Tepperwien complained to the
ECP in February 2006, Taggart met with him, listened to his

concerns, investigated, and responded in writing. The
counseling letter was rescinded. Tepperwien noted
afterwards that he was "satisfied" with his interactions

11
Entergy also recommended that Messina seek counseling.
It appears that he never did, but Entergy did not follow up.

-36-
with ECP and with the response to the concerns he had
raised. Tepperwien asked to be moved to the night shift so

that he could avoid Messina, and Entergy -- with Barry
making the decision -- agreed.

Far from acting maliciously or indifferently or
egregiously, the evidence showed, and a reasonable jury
could only find, that Entergy sought to, and did, address

Tepperwien's complaints in good faith. It gave him an
opportunity to be heard, it listened to his concerns, and it

took concrete steps to address them. The district court

correctly held that, even assuming the jury could have
reasonably found for Tepperwien on his retaliation claim,

Entergy was entitled to judgment as a matter of law on the

award of punitive damages.
CONCLUSION

We have considered Tepperwien's remaining

arguments and reject them as being without merit.

For the reasons set forth above, the judgment of
the district court is affirmed in all respects.

-37-
JOHN GLEESON, District Judge, dissenting.
A jury found that Entergy retaliated against James

Tepperwien for complaining of Vito Messina's ongoing sexual
overtures and unwanted sexual contacts. It also found that
Entergy's treatment of Tepperwien warranted punitive
damages. These verdicts are entitled to deference. In
passing on Entergy's application for judgment as a matter
of law, we are obligated to view the evidence in the light
most favorable to Tepperwien, Galdieri-Ambrosini v. Nat'l
Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998), and
the majority holds that we may grant the motion only if the

evidence, so viewed, is so deficient that the jury's
findings could only have been the result of sheer surmise
and conjecture. Op. at 24 (citing Brady v. Wal-Mart
Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)). Because
the majority ignores the first of these principles and pays
only lip service to the second, I respectfully dissent.
A. Factual Background
Viewed in the light most favorable to Tepperwien,
evidence presented at trial established the facts set forth
below.
Beginning in 2003, Vito Messina, who occupied a
position superior to Tepperwien's at Indian Point, began
sexually harassing him. Messina had been sexually
harassing men at Indian Point for many years. Messina told

1
Tepperwien that he wanted to have sex with him and that
Tepperwien could get him better jobs at the plant if he

acceded. The ongoing abusive sexual banter graduated in
November 2004 to a sexual assault, which is when Tepperwien
began to complain.
On November 16, 2004, Tepperwien reported the
sexual assault to Human Resources. This was his first
complaint of sex discrimination, and the first "factfinder"
against him soon followed. Essentially, a factfinder at
Indian Point is a direction to an employee to show cause
why he or she shouldn't be found to have violated a rule.

For example, as Entergy employee and union shop steward
Alfred Hicks explained at trial, "[i]f someone was absent
'x' number of days, the company would ask for a fact-finder
to find out why this employee was absent so many days."
J.A. 440. Depending on the information gleaned through the
factfinder, disciplinary action, including termination of
employment, could follow.
The first factfinder against Tepperwien subjected
him to an allegation that he had abused his sick time
privileges while he was hospitalized due to a work-related
injury from early December to December 28, 2004. The
alleged "abuse" was his failure to report his
hospitalization within 24 hours, even though he could not

2
have reported it during that period because he was in
critical care for internal bleeding.

In August 2005, Messina, unpunished and
undeterred, came on to Tepperwien again. They were
together in a work vehicle when Messina said he found
Tepperwien attractive and put his hands on Tepperwien's
shoulders, neck and hair. When Tepperwien protested,
Messina insisted that Tepperwien really wanted Messina to
touch him just as much as Messina wanted to do the
touching. Besides, Messina said, "I'm going to touch you
as much as I want, and there's nothing you can do about

it." J.A. 205. When Tepperwien continued to object,
Messina responded by saying how "cute" he was being by
"playing hard to get." J.A. 205.
Tepperwien reported the incident immediately. The
initial response of the Site Security Superintendent, John
Cherubini, was, "[W]hy didn't you punch him out?" J.A.
210. Tepperwien explained that a fight between two armed
men could easily escalate into something that would have to
be reported to the Nuclear Regulatory Commission ("NRC"),
which Cherubini agreed had to be avoided. As for Messina,
when he was confronted about Tepperwien's complaint he

3
admitted stroking Tepperwien's hair. Entergy thereupon
"punished" him by placing him on ten weeks of paid leave.1
Entergy brought Messina back to work in early
November 2005 without taking any steps to protect
Tepperwien from him. Tepperwien complained about this to
Terrence Barry, the Security Manager at Indian Point.
Barry first laughed him off and then told Tepperwien that
if Messina sexually harassed him again, Tepperwien should

report it to management. Tepperwien observed that he'd
done that before, twice in fact, but it hadn't done much
good because Messina was once again back in the workplace

in close proximity to Tepperwien. Barry accused Tepperwien
of being "overemotional" and threatened to kick him off the
site. J.A. 218.

This exchange occurred on November 16 or 17, 2005,
and once again a factfinder closely followed Tepperwien's
protected activity. Specifically, in early January 2006

the "missing equipment" factfinder commenced. Tepperwien
objected to the inquiry, claiming he was being falsely
accused, and Lieutenant Sanfilippo -- who was conducting
the factfinder on behalf of Entergy -- essentially agreed
with him. "Out of all the guys that we should be talking

1
Messina was also supposed to attend counseling, but he
testified that he didn't, and Entergy never followed up on it.
4
to about this," Sanfilippo told Tepperwien, "you're the
least likely guy we should be fact-finding." J.A. 237.

Later in January, Tepperwien escalated his
complaint of sexual harassment by taking it outside of
Entergy to the NRC. Entergy's retaliation escalated as
well. The very next week, on January 22, 2006, the missing
equipment factfinder was ratcheted up to a "counseling," a
sanction that Entergy itself characterizes as "discipline."
J.A. 881; J.A. 238. Lieutenant Jason Hettler and Site
Security Supervisor James O'Brien conducted the counseling
session. Tepperwien told them the counseling was

retaliation for going to the NRC the previous week and
asked why they were giving him a counseling. They
responded that they did not want to be doing it but were
ordered to do so by Cherubini.
One day during the following week, Barry was
determined to grill Tepperwien about the NRC complaint, but
it was Tepperwien's day off. So Barry called Tepperwien
and lied to him to lure him into work. Barry said someone
was needed on a "regulatory matter" and Tepperwien's name
had been "picked out of a hat." J.A. 247. Tepperwien told
Barry he had doctors' appointments scheduled for that day,
but Barry insisted. Barry falsely assured Tepperwien it
was simple matter, lied to him about who would be present,
and said he would regard it as a "personal favor" if

5
Tepperwien helped out and it would take but a half-hour of
his time. Id. When Tepperwien came in, Barry and two

Entergy lawyers confronted him about the NRC complaint.
Tricked into an obviously adversarial situation, Tepperwien
sensibly asked if a record could be made of what was said.
He was told no, and he was further told that if he
persisted in the request it would be considered a failure
to cooperate and would be grounds for terminating him. The
purported half-hour matter became a hostile three-hour
interview about his sexual harassment complaint, at which
Entergy's lawyer questioned Tepperwien about, among other

things, the January 22 counseling.
Meanwhile, Tepperwien had to deal with having been
disciplined in the form of that counseling.2 It was a

substantial undertaking. The appeal mechanism was a
procedure before the Employee Concerns Program at Entergy.
Tepperwien was advised by Barbara Taggart of that program
to consult an attorney before commencing the process, which
he did. He was required to "put everything in writing,"
J.A. 239, which he did, in a lengthy submission. He had to

2
There is no dispute that Tepperwien was subjected to a
counseling session on January 22, 2006. See J.A. 881-82
(describing January 22 "conversation" as a "counseling" and a
"counseling session"); J.A. 874 ("rescind[ing] the counseling
session"). There is similarly no dispute that a counseling
session at Entergy constitutes "discipline." See J.A. 881-82
(form "document[ing] disciplinary action(s)" and identifying the
action at issue as the equipment counseling).

6
meet with Taggart in mid-February to discuss his appeal.
Although he finally succeeded in persuading Taggart that he

had been improperly disciplined, it took Tepperwien more
than six weeks, from January 22, 2006 through March 6,
2006, to remove the stain of the counseling from his
record. As Cherubini himself put it after the counseling
was rescinded on March 6, Tepperwien was disturbed at the
fact that he had to go to Employee Concerns to erase the
discipline from his record.3
B. The Jury Finding of Retaliation
Viewing the evidence, as we must, in the light
most favorable to Tepperwien, there is no justification for
the majority's holding that the jury's finding of
retaliation amounted to sheer surmise and conjecture. In
concluding otherwise, the majority begins by saying that
factfinders at Entergy were not, as a matter of law,
materially adverse employment actions because they were

"common occurrences," that Tepperwien acknowledged
factfinders were helpful in most situations, and that
"there was good reason for Entergy to initiate" the
factfinders against Tepperwien. Op. at 30.

3
Finally, in mid-March 2006 Tepperwien filed a formal
charge with the EEOC. Thus ensued a bogus (and eventually
aborted) factfinder regarding allowing an officer who had a
strong smell (possibly alcohol) into the facility.

7
 Factfinders were indeed common occurrences, but
not for Tepperwien. He had none until he started engaging

in protected activity in November 2004,4 and then they
happened like clockwork after each of his complaints about
Messina. The majority correctly points out that "[c]ontext

matters" in our determination of whether employer action is
materially adverse, Burlington Northern & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 69, 71 (2006), and it is thus

relevant to our analysis that factfinders were common at
Entergy. However, Burlington Northern instructs us that
the material adversity inquiry probes the "perspective of a
reasonable person in the plaintiff's position." Id.at 69-70
(emphasis added). Here then, we must consider the
perspective of a reasonable person who, like Tepperwien,
had never been subject to any factfinders before making a
complaint of discrimination.5 A reasonable person in such a

4
The majority terms the evidence on this point
"equivocal," Op. at 31, but it isn't, and not even Entergy
suggests that it is. The first factfinder against Tepperwien,
which he indeed claims was an act of retaliation, see Brief for
Appellant at 18, was brought in December 2004, shortly after his
first complaint of sexual harassment. Even if the evidence were
equivocal, our obligation when confronted with such evidence in
this posture is to view it in the light most favorable to
Tepperwien.
5
The majority erroneously claims that Tepperwien's
discipline-free history prior to his protected activity goes only
to the question of whether Entergy had a retaliatory motive, a
question not before us here. Op. at 32. But Tepperwien's
employment history is an integral part of the material adversity
inquiry because it forms the figurative shoes occupied by the
reasonable person we must hypothesize. Indeed, by premising its
determination that the factfinders were not materially adverse on
8
position may well have been dissuaded from making a future
charge of discrimination, despite the fact that factfinders

were common for other employees, and the jury acted within
reason in so finding.
Second, although Tepperwien indeed testified that
in "most situations, fact-finders are there to be helpful,"
J.A. 229 (emphasis added), the clear import of his
testimony as a whole is that in his situation, the
factfinders and the counseling (among other things) were
harmful because they raised the specter of discipline and
were issued not to address a genuine workplace concern but

as punishment for his protected conduct. During one
factfinder, Tepperwien told the investigating officers that
the factfinder was "just another witch hunt, trying to pin
something on me." J.A. 270. He told the officers
conducting the missing equipment factfinder that he was
being made a "scapegoat," and Sanfilippo essentially agreed
there was no basis for the factfinder. J.A. 237.
Tepperwien also explicitly told Hettler and O'Brien, who
conducted the counseling that followed the missing

its factual finding that they were justified by good reasons, the
majority itself acknowledges that evidence of retaliatory motive
and evidence of material adversity often cannot be neatly
separated. As I explain below, see infra 6-7, to the extent that
the justification for an employer's action bears on the adverse
impact of the action, the evidence of the so-called "good
reasons" for the factfinders is insufficient to require us to
hold, as a matter of law, that that they were not materially
adverse actions.
9
equipment factfinder, that he thought the counseling was
retaliation for his complaint the week before to the NRC.

In short, the majority's suggestion that Tepperwien himself
characterized the factfinders and counseling as "helpful"
is an unfair characterization of his testimony as a whole
and disregards our responsibility to view the facts in the
light most favorable to Tepperwien.
The majority's finding that there were "good
reason[s]" for the factfinders usurps the jury's role. The
inference that the factfinders were unwarranted efforts to
pin something on Tepperwien was supported not only by

Tepperwien (though his testimony alone is sufficient to
sustain the jury's verdict), but also by Entergy's own
investigators. As discussed above, Sanfilippo admitted
that of all the people at Entergy he should have been
talking to about the missing equipment, Tepperwien was the
least likely candidate for a factfinder. And when that
bogus factfinder was escalated to a counseling right after
the complaint to the NRC, Hettler and O'Brien told
Tepperwien they did not want to be subjecting him to the
counseling but were ordered to do so by Cherubini. The
jury was permitted to conclude from this evidence, from the
tight temporal proximity between Tepperwien's complaints
and the factfinders and from the overt hostility of Barry
towards Tepperwien and his complaints, that the factfinders

10
were not justified by "good reasons" at all but instead
served to punish Tepperwien for his protected conduct.

The majority also finds, as a matter of law, that
not even the counseling of Tepperwien was a materially
adverse employment action. Its lengthy and strained
reasoning ignores the real-world consequences inflicted on
Tepperwien immediately after he took his complaint outside
of Entergy to the NRC: (a) the counseling, which was a form
of discipline, became part of his employment record; (b) to
challenge the discipline, he needed to invoke the grievance
procedures of the Employee Concerns Program; (c) at the

urging of the Employee Concerns Coordinator, he had to
consult an attorney; and (d) the grievance process took six
weeks and required him to file a detailed written
submission and to submit to an interview with the
coordinator.
That's a lot of trouble to go through in exchange
for complaining of workplace discrimination. It's
certainly enough to dissuade a reasonable worker from
making such a complaint. Yet the majority holds that the
jury's finding to that effect amounted to sheer surmise and
conjecture.
The remainder of the majority's opinion in this
regard divides and purports to conquer the various other
bad things that happened to Tepperwien on the heels of his

11
complaints about Messina. The result neither fairly
characterizes the evidence nor convinces. For example,

trivializing the remarkable fact that Tepperwien's
complaint that he wasn't being protected from Messina
caused Barry to threaten to toss Tepperwien off the work
site, the majority says the threat "was made after
Tepperwien facetiously asked whether he could 'kick Vito in
the groin.'" Op. at 36 (quoting J.A. 217). But that
leaves out some evidence. Barry's threat came after
Tepperwien's statement, but something important happened in
between. Specifically, Barry told Tepperwien to use the

company's reporting policy if Messina harassed him again.
Then Tepperwien, who moments earlier had told Barry that
"Entergy's policies on sexual harassment and violence in
the workplace are not worth the paper they're written on,"
protested that he had already "done that twice." J.A. 217.
That's when Barry made his threat. The jury rationally
could have concluded that because Barry's threat
immediately followed a discussion about making future
complaints, a reasonable person would have been
discouraged, if not dissuaded altogether, from making any
such complaints.
The most egregious example of appellate-court-as-
factfinder is the majority's reliance on Tepperwien's
"Separating Employee Survey." See Op. at 41. When he

12
left Entergy, Tepperwien indicated on a form that he liked
his job and that he'd consider working there again.

Without explaining why, the majority finds this useful in
determining as a matter of law that Entergy did not subject
him to materially adverse employment consequences in
retaliation for his complaints about Messina. One obvious
defect in this approach is that liking one's job or
considering returning to it and reasonably feeling deterred
from complaining about sexual harassment are not
necessarily inconsistent, let alone mutually exclusive, as
the majority suggests. But more importantly, Tepperwien

gave testimony explaining his answers on the survey, which
the majority fails to mention. When asked why he wrote
that he would consider working for Entergy again, he told
the jury that he "didn't want to appear to be a disgruntled
employee." J.A. 282. He elaborated that when filling out
the survey he was "thinking about what was going to happen
in the future," was concerned about whether he was "going
to be able to go to work in another power plant" or "get
another armed security position," and believed the exit
survey "could easily follow [him]" as he sought future
employment. J.A. 284.
Weighing facts like Tepperwien's exit survey
responses and his at-trial explanations of those responses,
alongside all of the other evidence in the case, is

13
quintessentially the function of the jury, not a court on
post-verdict review. The jury in Tepperwien's case heard

about his exit survey, just as it heard Tepperwien's
explanations for the answers he gave in that survey, and it
found that Tepperwien had been subjected to actions that
would dissuade a reasonable worker from complaining of
discrimination. Our job here is limited to determining
whether the evidence, viewed in the light most favorable to
Tepperwien, supports that verdict, not to troll the record
for facts that might have supported a different one.
Contrary to the majority's suggestion, protecting

employees from retaliation by employers does not amount to
treating them "with kid gloves or in a genteel fashion,"
Op. at 40, or "delicately," id. at 43. Nor is Title VII's
commitment to such protection diluted when the workplace
has security risks, like a nuclear power plant or a law
enforcement agency. There is no tension between effective
security and requiring an employer to respect an employee's
right to make good faith complaints of employment
discrimination without being subjected to materially
adverse actions by the employer. The majority's needless
suggestions to the contrary have no support in logic or our
case law, and by demeaning the antiretaliation provision in
Title VII they create the potential for mischief in this
and other unspecified "contexts" in which employers will be

14
permitted to treat employees in the "rough and tumble
manner" in which Tepperwien was treated in this case. Op.

at 40.
Finally, though jury findings are always entitled
to great deference, it is hard to conjure a context in
which they deserve it more than in this one. The Supreme
Court has emphasized that the determination of whether
challenged conduct meets the materially adverse standard is
especially fact-intensive. In Burlington Northern, it
stated that "the significance of any given act of
retaliation will often depend upon the particular

circumstances. Context matters. The real social impact of
workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the
words used or the physical acts performed." 548 U.S. at 69
(internal quotation marks omitted). And earlier this year,
in Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011),
the Court stated that "[g]iven the broad statutory text and
the variety of workplace contexts in which retaliation may
occur, Title VII's antiretaliation provision is simply not
reducible to a comprehensive set of clear rules." Id. at
868. Retaliation claims thus implicate a broad remedial
provision, violations of which are determined only after a
searching review of all aspects of the challenged actions

15
and the wider context in which they occurred in order to
determine the "real social impact of workplace behavior."

Jurors are obviously better suited to determining the
social impact of contemporary workplace behavior than are
judges. The majority thus not only usurps the proper role
of the jury but substitutes for that body a factfinder with
significant, perhaps even disabling, institutional
limitations.
C. The Award of Punitive Damages
For the same reasons it sets aside the jury's
verdict in favor of Tepperwien on the retaliation claim,

the majority also sets aside the jury's award of punitive
damages. Op. at 43. The majority twice repeats its
conclusion that a jury could "only find" that Entergy tried
in good faith to comply with its obligations under Title
VII. Op. at 43, 45. I disagree.
The jury reasonably could have inferred employer
bad faith from evidence, when viewed in the light most
favorable to Tepperwien, that established the following:

 Vito Messina was a problem of long standing in the
Indian Point workplace. He had previously
molested O'Hara, Tepperwien's union
representative. And ten years prior to the events
giving rise to this case, O'Hara's father (who
appears also to have worked at Indian Point) had
said "that's just the way Vito is." J.A. 327.
That "way" was the way Entergy allowed him to be.

 Messina began harassing Tepperwien in 2003. After
a physical sexual assault in November 2004, he

16
 began reporting the harassment. However, shortly
after each in-house complaint was made, he was
hassled by a bogus factfinder, and after the NRC
complaint was made, he was hassled by a bogus
counseling, all despite a spotless prior record.

 The sexual abuse continued, and in August 2005
there was another physical touching of Tepperwien
in a sexually suggestive manner. Tepperwien
immediately reported that event, and even though
Messina admitted inappropriately touching the
victim's hair, his "punishment" consisted mainly
of ten weeks of paid leave.

 In fact, Barry had wanted to fire Messina, but
after speaking to "unnamed others" at Indian Point
he had to reverse course and bring Messina right
back into the workplace. J.A. 216-17. The
influence of those unnamed others was why Messina
taunted Tepperwien by saying "I'm going to touch
you as much as I want, and there's nothing you can
do about it." J.A. 205.

 When Tepperwien reminded Barry of the prior
harassment and asked what was going to be done to
protect him against further harassment, Barry's
first reaction was to "laugh[] . . . off" the
concern. J.A. 439.

 His second reaction was to tell Tepperwien that if
Messina molested him again, he should just report
it. When Tepperwien protested that that was
insufficient because Messina's abuse had
previously been reported twice and here he was
being welcomed back into the workplace in close
proximity to him, Barry accused him of being
"overemotional" and threatened to kick him off the
site. J.A. 218.

 Right after Tepperwien complained to the NRC in
January 2006, Barry lied to him to lure him to a
meeting on his day off for the sole purpose of
interrogating him about the complaint. Then a
company lawyer threatened to fire Tepperwien for
insisting on recording what was obviously an
adversarial confrontation.

 When a scheduled "outage" (i.e., a turning off of
the nuclear reactors) in early 2006 occasioned a
17
 meeting involving the security management and
staff, Barry made his hostility toward Tepperwien
clear to all. In responding to the outage,
Entergy put Messina back together with Tepperwien,
requiring him to move to6 the less desirable night
shift to escape Messina.
These actions reek of bad faith. The jury was
fully justified in weighing all the evidence and concluding

that Entergy was more interested in protecting Messina from
the consequences of his own sexually harassing behavior
than in protecting his victims from retaliation when they
brought that behavior to Entergy's (and the NRC's)
attention.

D. The Amount of Punitive Damages

The jury in this case heard the typical
instructions regarding punitive damages. It was told that

such damages may be awarded in its discretion to punish
Entergy for outrageous conduct or to deter it from engaging
in similar conduct in the future. It was specifically
asked to consider whether Entergy "may be adequately
punished by an award of actual damages only." J.A. 799.
As for the amount of any punitive damages, the jury was
6
The majority makes much of the fact that Tepperwien
asked to be moved to the night shift. Op. at 38-39. But as the
district judge observed at trial, Entergy scarcely deserves
credit when an employee it failed to protect "got out of Dodge."
J.A. 652. It's one thing if the company separates the harasser
from the victim, but "if the separation of the two is done not by
the company but by the victim," that hardly helps the company's
case. Id. As the district court pointed out, the company could
have moved Messina to the less desirable night shift instead of
requiring by its own inaction that Tepperwien move himself there.
18
told that "in fixing the sum to be awarded, you should
consider the degree to which Entergy should be punished for

its wrongful conduct and the degree to which an award of
one sum or another will deter Entergy or companies like
Entergy from committing wrongful acts in the future." J.A.
799-800.
Equipped with those and other instructions, the
jury decided that Entergy, whose attorney argued to the
jury that there could be no liability unless Tepperwien
proved that Messina was a homosexual, needed punishment and
deterrence, so it awarded $500,000 in punitive damages.

Though the calculation of such damages is anything but a
precise science, given Entergy's size, it's difficult to
quarrel with the jury's assessment that an award of that
size was necessary in order to finally get Entergy's
attention, except to say that it exceeds the statutory cap
of $300,000, of which the jury was unaware. 42 U.S.C. §
1981a(b)(3). Thus, I would reduce the punitive damages
award to $300,000 but otherwise uphold the jury's verdict.
* * * * *
At first blush the configuration of verdicts in
this case seems anomalous. One would think that employer
conduct that is sufficiently egregious to warrant $500,000
in punitive damages would also result in damage to the
plaintiff, and hence merit an award of compensatory

19
damages. But a review of the trial record reveals that
Tepperwien, a former member of the Strategic Air Command

who wore a military bearing on his sleeve, was presented
even by his own attorneys as a tough and honorable soldier
who refused to buckle under Entergy's mishandling of his
complaints about Messina. The jury's determinations that
he needed no compensation despite Entergy's acts of
retaliation but that Entergy needed to be punished and
deterred cannot reasonably be characterized as the result
of surmise or conjecture; to the contrary, they were amply
supported by the evidence at trial. I therefore

respectfully dissent.

20