*1 lengthy prison after a sentence and had sentencing due deference giving discretion, bearing proven incapable complying thus far of of judge’s exercise advantages supervised of with the terms of his release. dis- in mind the institutional Cavera, could therefore reason- v. 550 The district court trict courts.” United States (in banc). (2d Cir.2008) relatively long a of 180, ably We conclude that term F.3d necessary pre- release was supervised a district court’s substantive will “set aside pris- vent recidivism in view of the lenient only exceptional cases determination imposed. cannot be on sentence it The district the trial court’s decision where prison to offset a short range permissible of court’s decision located within (internal long period supervised of quotation at 189 sentence with decisions.” Id. omitted). Thus, fine-tuning un- release “is a matter of rather marks substantive “providefs] inconsistency.” than at 88. Because standard Id. reasonableness that, although “exceptional cases this is not an where backstop case[] for those few correct, trial would nonetheless court’s decision cannot be located procedurally decisions,” justice damage range permissible the administration of be- within the imposed shockingly we find the district court did not abuse its cause sentence low, shockingly unsup- imposing or otherwise discretion in a 59-month term of high, Cavera, portable supervised as a matter of law.” United release. See 550 F.3d (2d (internal omitted). Rigas, quotation States v. 583 F.3d at 189 marks Cir.2009). CONCLUSION Leon,
According to the sentence substantively unreasonable because reasons, foregoing judgment For the findings do not the district court’s record AFFIRMED. of the district court is support long period the need for a of su release, operate to
pervised and instead
justify imposition of a below-Guidelines (time of one imprisonment
term of served the 8-14 month Guidelines
month versus
recommendation). explaining its sen
tence, primarily sym the court focused on TEPPERWIEN, James Plaintiff- pathetic factors that counseled favor of Appellant, imprisonment, a below-Guidelines term of v. including caregiv the defendant’s role as OPERATIONS, ENTERGY NUCLEAR But elderly er for his mother. the court INC., Defendant-Appellee.* signaled also distrust of Leon’s use of lib erty, citing “idiocy” severing all con Docket No. 10-1425-cv. fleeing tact with the Probation Office after Appeals, United States Court permitted the NYPD. District courts are Second Circuit. “hedge against relatively thus to lenient [a] imprisonment” by imposing long term of Argued: March supervised er term of release. See United Decided: Oct. (2d Rivera, States v. 192 F.3d 87-88 Cir.1999). only Leon recently begun process reintegrating society into
* caption accordance with the The Clerk of the Court is directed to amend the official *2 above.
CHIN, Judge: Circuit case, In this plaintiff-appellant James employed security as a by defendant-appellee Entergy officer Nu- Operations, (“Entergy”) clear Inc. at the (“Indian Energy Indian Point Center Point”) Buchanan, York. Tepper- New sexually wien contends that he was ha- co-worker, rassed and brought this action asserting below claims for construc- discharge, tive hostile environment sexual harassment, retaliation, under Title Rights VII of the Civil Act of (“Title VII”). § U.S.C. 2000e et seq. *5 Entergy’s summary judg- On motion for ment, Tepper- the district court dismissed claim, discharge wien’s constructive denied the motion as to his hostile environ- trial, ment and retaliation claims. At Entergy found for on the hostile envi- ronment claim Tepperwien and for on the Tepperwien retaliation claim. It awarded compensatory zero dollars in and nominal $500,000 damages in punitive dam- ages. motions, Entergy’s post-trial On pursuant to Fed.R.Civ.P. the district granted court judgment as a matter of law dismissing the retaliation claim. in Ruling alternative, punitive it vacated the (Neil Raymond VanderWoude, Kuntz damages grounds award on the the evi- brief), VanderWoude, Gerosa & Car- dence did not support inference of mal- mel, York, New for Plaintiff-Appellant. ice or part reckless indifference on the (Elisabeth Carey- Catherine M. Masters Entergy. Finally, the district court held Davis, brief), LLP, on the Schiff Hardin Entergy that if judg- were not entitled to IL, Chicago, for Defendant-Appellee. ment as a matter of law on the retaliation
claim, it grant pursuant would a new trial CHIN, Before: KATZMANN and to Rule 59. GLEESON, Judges, Circuit District Tepperwien appeals from the district
Judge.** rulings. court’s affirm. We Judge by separate GLEESON dissents
opinion. STATEMENT THE OF CASE ** Gleeson, Judge The Honorable John United States District for the Eastern District of New you right?” Tepperwien think it’s all re- A. The Facts1 sponded “explain people” that he could not with En- Employment Tepperwien’s 1. Second, away. next time and walked tergy range, Tepperwien went Messina times, Entergy owned At all relevant you him “I think and I privately: said to power plants nuclear operated two friends, very good very good could be began Tepperwien first Point. Indian friends, and we could see each other. And security offi- Point as a working at Indian good you. I take care of And I could could Inc., Services, an inde- cer for Wackenhut jobs ... get you good even at the [ ] February security company, pendent Third, plant.” Tepperwien politely left. opera- took over the Entergy After 2002. the next time was at tions, integrated into the Tepperwien was I range, “[W]hy Messina said to him: don’t security in March 2003. He force you? you-don’t you get excite Don’t excit- September resigned from Tepperwien responded by ed about me?” shoot,” saying ready proceed- “I’m Harassment Verbal Finally, with the drill. the last time ed range was at the part of his with Messi- required, na, officer, security group to re- Messina said to of twelve as a employment annually presence: officers training re-qualify and to ceive “[Cjome on, spring get going, get let’s let’s shoot- of firearms. the use ing. turning re- Jim me on.” started summer *6 from Messi- ceiving training firearms Vito Buttocks-Grabbing Incident 3.The na, security officer. Entergy another instructing 16, 2004, at the fire- Messina was When On November or acting manager as a range, post. arms in the command He was on the ability disquali- wife, He had the to supervisor. telephone telling with his her he was using carrying when, fy early, other officers from coming home as he described firearms, it, and an officer who did not re- armory, came оut of the “Messina many of qualify perform me, my was not able to against put shoved his nails into security buttocks, left, officer. the functions of a quickly and then bolted stop to Messina away.” Tepperwien tried one-year period the course of a Over leaving, but failed. beginning in the summer of Messina reported the incident to his verbally harassed four times. First, officers, in security representative, reported union who turn in front of other you Entergy think the incident to an human re- Tepperwien: asked “Do Messina (“HR”) manager.2 The HR man- you would ever have sex with a man? Do sources York, light Tepper- sitting by designation. dence in the most favorable wien. primarily trial 1. The facts are drawn from the appeal “When an comes to us after a poli- Entergy prevention record. had a harassment verdict, in we view the facts of case cy prohibited the work- harassment prevailing par- light to the place required employees report most favorable all Indus., ty.” Kosmynka v. Polaris 462 F.3d any See of harassment. Pursuant instances Here, (2d Cir.2006). although Entergy including policy, Entergy employees, all respect training prevailing party managers, regarding was the received Employees prevention policy. claim for environment claim and the harassment hostile retaliation, (1) supervisor damages report violations to: or compensatory as could HR; convenience, (2) (3) Employee manager; Con- evi- we view all the matter inclusion, HR ager assigned representative, diversity, a senior on and behavior at Sanseverino, investigate. Third, Grace San- work. Messina was removed from Messina, (which Tepperwien, severino interviewed position had temporary) been Security Superinten- and five others —the firing range, although an instructor at the (Terrence Barry, dent the head of the part this was at least in a consequence of security and four other department) secu- position whether Messina was in the rity officers. told Sanseverino bargaining violation of union unit rules. inci- report that he was reluctant In December a few weeks after dent, suggested and she he do so complained about the but- anonymously. Tepperwien agreed. As a incident, tocks-grabbing fact-finding in- consequence, although spoke she to Messi- (“fact-finder”) vestigation opened into na, directly him she did not confront about his use of sick time.3 He had been out of him accusation. She did ask approximately work for apparent- month whether he had ever been involved with ly injury. as a result of an He used all his touching person, another without indicat- remaining days sick days. and vacation female, ing any male or inappropriate About two weeks after he sustained the place. manner or Messina said he had injury, Tepperwien not. called the spoke security Sanseverino also to all department employees duty department medical during and stated that he had that day, employee reported shift and no injury sustained the while participating having any inappropriate witnessed touch- a hand-cuffing exercise at work. He had ing grabbing. not, however, earlier filled out an accident report or incident hence re-
Tepperwien’s complaint against Messina inju- fused to consider this a work-related sustained, was not and HR ry. Entergy conducted a fact-finder into First, nonetheless took certain actions. all why Tepperwien up had used all Messina) his sick security (including officers were interviewed, time. He was and at required sign to read and a memorandum *7 conclusion of the setting investigation, forth he Entergy’s policy against was is- dis- crimination, harassment, a advising and sued letter that retaliation. he would be Second, security subject all 180 disciplinary officers were re- action if he abused quired to all-day training attend an session his sick time leave in the future. office; (4) O’Hara, reporting system; cerns (5) the on-line Patrick shop the chief steward of hotline; (6) (for union, the ethics and the union Tepperwien’s who called as a wit- bargaining-unit employees). by Tepperwien, explained ness that "when things happen, company conducts a fact trial, Tepperwien 3. At described his under- finding. representative a There’s union there. standing Entergy: aof "fact-finder” at management representative There’s there. fact-finding A is a document. You usual- They questions.” pro- ask A fact-finder is a ly go fact-finding management to a with company investigates cess which "the vari- your rep. and with union And the fact- ous issues.” O’Hara would review "about 30 pretty finder something hap- much: Did findings fact ... a week.” Fact-finders are pen? good? Was it Was it bad? Can we disciplinary in nature and cannot be ... doing find out if we should be some- union, grieved by they and do not fall thing differently? we Shall correct the situ- (ver- Entergy’s discipline within four levels of policy? ation or warning, reprimand, suspension, bal written situations, Under most fact-finders are termination). Depending and findings, on the get helpful, everybody there to be in a room disciplinary a fact-finder could lead to action. and proceed see if some other action has to after that. by Barry; repri- this was a written signed Hair-Touching Incident 4. The personnel in Messina’s placed mand to be work, he returned When that En- advised Messina file. letter with Messina working able to avoid any him to “refrain from tergy expected 29, 2005, August On for some months. behavior and conduct type inappropriate of however, to drive Messina assigned he was him It advised workplace.” in the stay and Messi- he would where post, “[fjailure the terms of this comply During the vehicle. take over na would your termination reprimand will result in “cordial ride, engaging they were as an Nuclear Se- employment of when, de- conversation” curity Officer.”4 it: scribed telling me that he found started Vito 2005, shortly after Messi- In November attractive, me a number things about na returned to work from his administra- looked, way I way I things; leave, Barry, tive met with particular, And in he presented myself. security supervisor, repre- site and union driving my style. hair And we’re liked told that he sentatives. I thing the next post. And up Messina, had wanted to fire but after con- knew, my hands on shoulder he had his others, impоse he decided to sulting with my neck and into the back going up and At one suspension ten-week instead. my head. Barry, said to facetious- point, Tepperwien him, “Terrence, not to touch you going told Messina are to do ly, what going “I’m responded says Messina a letter that I can and now? Give me They I want.” as much as I can—I can kick you protect myself? touch That parted. and groin arrived at their destination if he comes after me?” Vito “[N]o, no, no. If Barry responded, Vito day, Tepperwien reported The next you anybody ever again ever touches security superinten- to the site incident you again, you I want to secure touches con- dent, Cherubini John Cherubini. your post go management and tell Messina, and Messina admitted fronted thought Tep- report it.” He added hair, although he touching Tepperwien’s perwien being “overemotional” removing something just he was contended you I’m to let going “I don’t think said ad- hair. Messina also Tepperwien responded by back on site.” he had “nice telling Tepperwien mitted denying being he was overemotional “was day, Later Messina hair.” every going that he had intention stated paid post.” put off He was walked *8 back on site. investigation pending leave administrative Barry) for a manda- (by referred
and was Actions Entergy’s 5. Additional With to tory evaluation ensure his psychological Respect Tepperwien to duty. fitness for 2006, 7, the January Tepperwien On was returned to work on November Messina gasA 2005, subject another fact-finder. mask 9, duty. fit for of after he wаs found missing building from a on Discipline,” was discovered He was issued a “Letter steward, O’Hara, company Tepperwien’s the shop [I]f hair.... chief testified sought touching terminate Messi- going that if to Mr. Messina for to terminate 9, 2005, the employment hair, November na's surely an arbitrator employee’s another grievance “clearly” filed a union would have very We were confi- would overturn that. thing only that we ... knew for because "the company that.” think the knew dent. And I that Mr. Messina had touched Mr. sure was security responded route. A have a Tepperwien’s tape fact-finder “We don’t record- why line, Tepperwien you to find out er.... If this was conducted continue we will missing. Tep- the mask reported request you’re cooperating, had not we —since acknowledged that perwien immediately he had not request company will that the assigned equipment checked all his when you.” Tepperwien terminate if asked he post, explained he took over the but he lawyer. could call his He was allowed to impossible him physically that it was for to so, do and a paralegal lawyer’s his at that equipment post, check his as the to permitted participate office was in the stored equipment was not there. meeting by telephone. later,
Approximately two weeks a coun- 2006, January February In when seling Tepperwien to con- letter was issued Tepperwien duty at approximately was on firming that had been he counseled a.m., in, another came officer about an аssigned check inspect equipment and hour Tepperwien and half late. stopped assuming post. when Another security him because was a “there tremendous odor officer, post who held the the shift before coming left, off of him.” The officer re- over, Tepperwien similarly given took turning half an later. Tepperwien hour let counseling a fact-finder and letter for fail- in, supervisor him to a reported and a few ing inspect contingency equipment minutes later that the officer had come in failing gas to notice a mask was miss- late “reeking.” Tepperwien also told ing. The other officer accepted his fact- get officer: “I don’t guy want finding counseling. As discussed be- trouble. He seemed fine. He didn’t slur low, objected, Tepperwien and his counsel- words, trip his didn’t over his feet.” The ing letter was later rescinded. officer was home being later sent unfit duty. for 2006, supervisors In Two other January Tepperwien late initiated a day fact-finder filed a the same and asked complaint Regula- Nuclear (the “NRC”) perwien why tory he admitted “drunk” regarding Commission officer into the work alleged responded sexual site. inap- harassment and propriate “[njobody he was sexual behavior at the said drunk” and Indian advised that Point On he had submitted an firing range. February incident report. it, As asked described attend a meet- much” ing “pretty on “an fact-finder ended regulatory “right NRC matter then and Entergy.” Barry told there.” Tepperwien that his hat,” “name had out picked been In mid-February Tepperwien met though off, even dаy with Barbara Taggart, coordinator of pressed Tepperwien to come in for the Entergy’s Employee Program Concerns meeting. (“ECP”) Point, at Indian to raise certain fact, meeting was about the com- concerns. him put She instructed plaint so, had filed with the concerns in and he did writing, on or NRC, Entergy’s outside at- about February counsel *9 tended. Tepperwien complained asked if he a could about number of matters. tape-record meeting. by complained gas the He told He the was about mask fact- finder, one of no. lawyers Tepperwien the he explaining asked that could not have again again, no by possibly reported and was told this time and discovered the miss- supervising attorney, Darryl ing Shapiro. upon assuming post. mask his He Tepperwien complained counseling asked third time about re- about session cording meeting, counseling and this time and He Shapiro letter. asserted that switch to the suggested Tepperwien was security department in the morale it with Tepperwien his discussed night about shift. complained He “extremely low.” Barry part told he agreed, how wife. He because Barry, and his meeting with from a hat. pulled every weekend off. He asked name had been would have him his retaliation night concern about moved to the shift. expressed to be and was He not Although he did management. completed, he “decid- outage After the was memorandum, matter in his longer.” a little bit stay nights include ed to on met Taggart told when Tepperwien outage, Barry conduct- рrior Just behavior. of Messina’s sexual with her “day crew” of the meeting ed a 6, 2006, Taggart responded On March managers. as several security force as well harass- As for the sexual Tepperwien. security question asked a Another officer ment, the matter had noted that Taggart particular gate, staffing about at actions and corrective investigated been yelled at the officer Barry “exploded” taken, the other officer including moving asking ques- such that he should be (Messina) for shift. As Tepperwien’s off point tions. At some addressed gas relating missing actions conflicts, saying: peo- are “[T]here issue of counseling mask, Taggart noted like each other.” He ple ... that don’t appro- Tepperwien provided session like,” here I don’t people “There are said: the known the time based on at priate Tepperwien. at and stared information, understood management July August In not checked had in a “bullet-resistant enclosure” stationed informa- on additional Based equipment. (“BRE”). security officer was in- Once a however, manage- tion, noted that Taggart BRE, supposed he was not to leave side a and was re- the issue ment had revisited by relieved another officer. until he was counseling As for scinding the letter. a.m., Tepperwien re- approximately At Barry, Taggart acknowl- meeting with a lieutenant telephone call from ceived meeting for the that the notification edged a truck Tepperwien to watch who asked as it could have handled as well “wаs not yard. in the The truck parked that was taken to been,” that action had been view, and he partially recurrence. prevent the issue and address BRE from inside the for about watched it an completed thereafter being relieved another two hours before Survey,” and Satisfaction ECP “Customer of the told the relief officer officer. He was “satisfied” that overall he he noted order, suggested that the lieutenant’s and he was with ECP with his interactions in- supervisor get officer call his relief con- response to his with the “satisfied” watching continue on whether to structions cerns. the truck. “outage” there was In March later, if Tepperwien was asked Point, A week during which the reactors Indian the orders to the officer passed During outag- he repair. shut down were respond- him and who relieved es, security required and con- additional that, Tepperwien yes. A week after ed are shifts combined. sequently a fact-finder” and asked in for “pulled the was to work with Messina was scheduled the truck. assignment watch days about the both days. complained He first two whether he he was asked particular, assignment switched to another and was duty” physical *10 taken “escort day, Tepperwien the third days. On both — The fact-finder end- the truck. charge who representative, union to his spoke —of 566
ed, never Entergy. Tepperwien and received coun- appealed has not respect to seling letter with this incident. from these orders. Following discovery, Entergy moved for Tepperwien Resigns
6. summary 27, 2009, judgment. On March fаct-finder, Tepperwien After the last thorough, decision, 30-page the dis longer decided that he no wished to be J.) (Seibel, trict court granted the motion employed Entergy. He go decided to part and denied the motion in part. profession” x-ray back to his “old tech- Tepperwien v. Entergy Opera Nuclear — if nology determined that he found tions, Inc., (S.D.N.Y. F.Supp.2d —and job, one,” promise another or even “a he 2009). The district court denied the mo resign Entergy. would Septem- On tion to Tepperwien’s hostile environ 3, 2006, he resigning ber submitted letter claims, ment and retaliation granted effective two weeks later. Two la- weeks dismissing the motion his constructive dis ter he filled out a Form W4 with his new charge claim. Tepperwien for moved re employer. consideration of the dismissal of the con claim, discharge structive and the district leaving Entergy, Before court denied the motion. v. “Separating Survey,” filled out a Employee Inc., Operations, Nuclear in which leaving he stated that he was for (S.D.N.Y.2009), F.Supp.2d 427 ECF No. conditions, better working better or more 62. hours, flexible work personal consider- “agree[d]” ations. He also that he would jury The case was tried to a beginning working consider for Entergy again and 13, July 2009. The returned its good working he had a relationship 21, July 2009, verdict on finding for Enter- with supervisor. He “strongly dis- gy on the sexual harassment claim and for agree[d]” that his work environment had Tepperwien claim, on the retaliation atmosphere of teamwork and coopera- awarding, retaliation, respect zero “[ojverall, tion. He “agree[d]” that I was damages pain for and suffering, my job.” satisfied with $500,000 in punitive damages, and zero in nominal damages. B. Proceedings Prior pursuant moved to Fed. In March Tepperwien filed a or, alternatively, R.Civ.P. 50 for new trial charge of sexual harassment and retalia- pursuant to Rule 59 or a remittitur with against tion Entergy with the Equal Em- respect damages. Tepperwien cross- ployment (the Opportunity Commission moved for a trial new on his hostile envi- “EEOC”). Tepperwien right received a ronment claim and to reinstate the con- sue letter from the EEOC on October claim, structive discharge which had been dismissed on summary judgment. He sep- n Tepperwien commenced this action arately be- attorneys’ moved for fees. On January low on 16, 2010, ini- March in a thorough and careful- tially defendants, sued additional including ly considered memorandum decision and Messina, his union order, J.) (Seibel, asserted claims grant- district court law, under federal and state but in Entergy’s orders ed motion judgment as a entered 12, 2007, June 2007 and July matter of law as to the retaliation claim J.) (Brieant, the district and, alternative, court dismissed all granted Entergy a claims except the against Title VII claims new trial on retaliation and vacated the
567
210,
110
ing
Corp.,
v.
Luciano v. Olsten
F.3d
damages award.5
punitive
(2d Cir.1997) (alterations
Inc.,
original)).
in
No. 07 214
Operations,
Nuclear
(S.D.N.Y.
(CS),
Mar.
slip op.
18
CV-433
two
appeal presents
principal
This
is-
2010),
124. The district court
16,
No.
ECF
(1)
court
sues:
whether the district
erred
Entergy’s request
strike
granted
judgment
a matter of law
granting
in
his fee
cross-motion and deniеd
perwien’s
(2)
claim;
the retaliation
dismissing
Judgment
at 29.
as moot. Id.
application
whether, alternatively,
the district court
appeal
this
accordingly, and
was entered
vacating
punitive damages
erred
followed.
respect
award with
to the retaliation claim.
address the two issues
turn.
We
DISCUSSION
novo a
appeal, we review de
On
A. Retaliation
for sum
grant of a motion
district court’s
Title
contains an antiretalia
VII
to Rule 56 or a
mary judgment pursuant
it
provision,
tion
which makes
unlawful for
of law
judgment as a matter
motion for
an
employer
against
an
to discriminate
50,
the same
applying
to Rule
pursuant
opposing any practice
made
employee
by the district court.
applied
standards
Burlington
unlawful
Title VII.
N. &
Pharm.,
Inc. v. United
Advance
See
White,
53,
Ry.
Santa Fe
Co. v.
548 U.S.
(2d Cir.2004)
States,
391 F.3d
390
59-60,
2405,
be construed to
broad
of U.S. at
126
(quoting
S.Ct. 2405
Oncale
conduct.”).6
employer
Servs., Inc.,
v. Sundowner
523
Offshore
75, 80,
998,
U.S.
118 S.Ct.
helpful, get everybody and see subject fact-finding hаd not been to a for proceed some other action has after years filing the three to his prior his that.” complaints. testimony various cited Second, good reason for En- there was however, proposition, equivocal,8 this for is fact-finders, tergy initiate these assuming but even employee thus no reasonable would have subjected until any not fact-finders after materially found them to be adverse or harassment, complained he this of sexual is first, stigmatizing. gas In the mask was proof only retaliatory of causation and a Tepperwien’s missing discovered as- materiality. Again, motive—not of Title signed route; security another officer was protect not employee VII does “all subjected for missing to a fact-finder retaliation,” only pro “retaliation that second, gas In the Tepper- mask as well. injury Burlington, duces an harm.” or permitted security pass wien officer to 2405; Hicks, at 548 U.S. 126 see S.Ct. through security checkpoint and enter assuming F.3d at they 164-65. Even place; apparently the work the officer was causally Tepperwien’s later sent were connected to intoxicated and was home as third, unfit duty. Tepper- protected activity, In the while the three fact-finders— only relating 7. The ”[t]he record contains evidence to a testified that other the December 2004 fact- you fourth fact-finder: I fact-finders can tell about had to do relating of sick finder use stating I with letters that I received appeal, Tepperwien complains leave. On company viоlated or had abused sick time fact-finders, only although he does of three policy. That’s all I can remember.” His trial, however, specify not which ones. At immediately then tried to refresh counsel argue did that this earlier fact-finder was apparent recollection other fact-finders. about retaliatory in nature. approximately “Employee Guide,” the course of self titled occurring over Discussion months, consisting only of brief in eight confirmed that was not resulting discipline— in no quiries, “stepwise” disciplinary an active pro- harms” merely “petty only were “trivial cess. It noted the discussion was annoyances.” slights Burlington, or minor intended to be a “counseling” rather than a 68, 126 suspension, S.Ct. 2405. warning, repri- U.S. verbal letter of
mand,
Hence,
discipline.
or “other”
Counseling
2. The
form itself makes clear that a counseling is
*14
below
or
warning
reprimand.
even
The
Tepperwien argues that the coun
counseling
merely
discussion of
with
seling
respect
he received
to the miss
legitimate safety
missing piece
concern—a
gas
was a material
ac
ing
mask
adverse
safety equipment
of
ac-
agree
tion. We
with the district court that
in
tions
connection therewith.
it was not
a matter
as
of law.
Third,
assuming
even
counseling
First,
counseling was
rescinded after
criticism,
rose
level of some form of
Tepperwien contacted the ECP. See Schi
held, in
we have
the context of the issu
Inc.,
Quality Payroll Sys.,
ano v.
445 F.3d
memo,”
ance of a “counseling
that “criti
(2d Cir.2006)
597, 609
(holding
change
that
(which
an employee
cism of
part
is
оf
employee’s
reporting structure was not
training
necessary
employees
to allow
employment
adverse
action where it was
develop, improve
discipline)
and avoid
is
apology day
rescinded with an
after em
employment
not
an adverse
action.”
ployee complained); Sanders v. N.Y.C.
(Div.
Parole),
Weeks v. N.Y. State
273
Admin.,
749,
Human Res.
361 F.3d
756
of
(2d
76,
Cir.2001),
F.3d
86
abrogated on
(2d Cir.2004) (holding
that
could rea
grounds by
other
R.R. Passenger
Nat’l
sonably
negative performance
find that
Corp.
101,
v. Morgan, 536 U.S.
122 S.Ct.
evaluation did not constitute material ad
(2002).9
2061,
Second,
acknowledged,
focus
clearly
here
was not on Tepperwien,
the counseling did not
him
place
in an
likely
аnd was not
that counseling of this
disciplinary process.
nature,
active
The form it-
given
which was
employ-
to other
Dist.,
Presbyterian
9. Accord
Hosp.,
Irondequoit
v. N.Y. &
W.
Perez
Cent. Sch.
No. 06-CV-
5749(LBS),
3634038,
No. 05 Civ.
2876204,
2009 WL
(W.D.N.Y.
at
2009 WL
at *8
(S.D.N.Y.
3, 2009)
*15
(holding
Nov.
2, 2009) (where
Sept.
job counseling did not
disciplinary reprimand
job
that did not alter
status,
any
pay,
result
diminution of
responsibilities
employ-
or otherwise affect
benefits,
employment
it was not adverse
ac-
sufficiently
ment was not
material
to consti-
tion).
action)',
employment
tute adverse
v.
Potenza
well,
Barry’s comment and
deter a reasonable em-
stare
ees as
would
of discrimination.
are not
complaining
during
employee meeting
from
ma
ployee
Burlington,
terially adverse
See
actions.
circumstances,
of all the
light
(“
at
‘[Person
548 U.S.
meeting by telephone. See
v.
Vazquez
because,
materially
was not
shift
adverse
Corp.,
Southside United Hous. Dev. Fund
clear,
testimony
Tepper
as his own
makes
(NGG)(LB),
No.
2009 WL
06-CV-5997
(E.D.N.Y.
2009)
requested
During
outage,
wien
it.
the
21,
Aug.
*12
combined,
(“Courts
day
and as a
shifts were
conse
Burlington
interpreting
North
to
quence
was scheduled work
empty
ern have
verbal
do
held
threats
met
injury,
with Messina.
with
not cause an
and therefore are not
O’Hara,
steward,
аctions,
to
materially
they
shop
where
union
com
adverse
are
actions.”).
any
plain,
suggested switching
and O’Hara
to
unsupported by
other
retaliation,
stage,
summary judgment
At
motion on
as the district court
the dis-
10.
plaintiff
opinion,
noted in its
trict court concluded that
Rule 50
“evidence at
"presented
suggesting
counseling
evidence sufficient to create a tri-
trial
amounted to
counseling
employment
an adverse
action offered
able issue as to whether
sub-
stantially
presented
retaliatory." Tepperwien
picture
v.
than that
Nuclear
weaker
Inc.,
F.Supp.2d
judgment stage.” Tepperwien
Operations,
summary
at the
Inc.,
(S.D.N.Y.2009).
Operations,
Although there is
v.
No. 07
some ten-
Nuclear
(CS),
(S.D.N.Y.
slip op.
sion between this conclusion
the district
CV-433
at 10
Mar.
2010),
Entergy’s
grant
court's decision to
Rule 50
ECFNo.
wife,
nights.
speaking
violations,
After
for mistakes and rule
or even
perceived
perwien agreed
request,
to make the
mistakes.
It is not surprising
that Tepperwien was treated in
part
every
rough
because he would have
weekend
and tumble manner rather than with
off.
told O’Hara that he
kid
gloves
Hicks,
in genteel
or
fashion.
change,
See
would take the shift
O’Hara made
“
there in the suggest record to Viewing all of the actions in the aggre- objected working nights he ever gate, we conclude that a reasonable em- that he ever asked to be moved back to the ployee in Tepperwien’s situation would not day shift. have been deterred engaging pro- Indeed, tected activities. while the test is Aggregate The Actions in the objective one, it is relevant that Tep- perwien himself was not deterred from
While the actions fail individually complaining complained numerous provide a basis for a reasonable —he Moreover, times. Tepperwien acknowl- subjected conclude that edged, after all the incidents and when it *16 actions, employment material adverse they was clear that he was leaving Entergy, fail aggregate. also in the Individually the that he would working consider for Enter- trivial, placed actions were in context gy again and that overall he was satisfied they remain trivial. Taken in the aggre with job at Entergy. gate, the actions still did not adversely affect in any way. material Accordingly, we hold that the district plus MacDraw, “Zero zero is zero.” Inc. court properly granted Entergy’s motion Fin., Inc., v. Grp. Equip. 33, CIT 138 F.3d judgment for as a matter of law dismissing (2d Cir.1998); 38 Eagle Gorence v. Food the retaliation claim. cf. Ctrs., Inc., (7th 759, Cir.2001) 242 F.3d 763 B. Damages Punitive (“And it simply true, is not we want to emphasize, litigant if a presents an Our decision above obviates the overload of irrelevant or nonprobative punitive need to reach damages the claim. facts, somehow the Nonetheless, irrelevances will add we discuss the claim because up to relеvant evidence of discriminatory punitive damages were only damages They not; intent. do plus zero zero by jury, awarded Tepperwien’s zero.”). lack of punitive entitlement to damages is clear.
The context is significant. also The se- curity unit at Indian Point was akin to a Punitive damages are available law unit, enforcement or quasi-military under Title VII employer where an dis command, with a chain of lieutenants and criminates against or retaliates an employ chiefs, handcuffing exercises, deploy- ee with “malice” or “reckless indifference” weapons, ment of and the use of BREs. employee’s federally protected The task of securing a nuclear power plant Ass’n, rights. Kolstad v. Am. Dental 527 significant raised safety 526, 534, concerns not U.S. 119 144 S.Ct. L.Ed.2d environments, and, (1999) found most work 494 42 (quoting U.S.C. understandably, 1981a(b)(l)); § there was little tolerance see Farias v. Instructional
573 (2d not a disre- Inc., Cir. his conduct did evince reckless 259 F.3d 101-02 Sys., 2001). satisfy gard Tepperwien’s federally-protected can this burden plaintiff A for employer that the by presenting very evidence rights. contrary, To (or retaliated) him against effort, discriminated as'dis- part Entergy’s much a knowledge violating it was below, with “conscious to address cussed “ law,” engaged ‘egregious’ that it or concerns. in- conduct from which an ‘outrageous’ or concluded, court and as a As the district indifference
ference of malice
reckless
find,
only
could
so
Enter-
reasonable
Farias,
F.3d at 102.
could be drawn.”
gy
good-faith
comply
made a
effort to
plaintiff
establishes
Evеn where
under Title
It had an
obligations
its
VII.
indifference,
corporate
malice or reckless
poli-
and antiretaliation
antidiscrimination
avail
an affir
may
defendant
still
itself of
cy.
employees, including manage-
All its
was not
mative
that it
liability
Kolstad v. Am. Dental
was
it.”
rageous
that,
reckless
including
presented
faith efforts to
tal
974
damages
sions are
as matter of
discussed above.
sons that we conclude that
He relies
employer may
and made
Kolstad,
managerial agents
Corp.,
(D.C.Cir.1998) (Tatel, J., dissenting)).
[2]
U.S. at
discriminatory
Zimmermann
wholly
“in the
jury’s award
“[1]
defense.
for
behavior on the
indifference or
materially
on
contrary
Barry’s actions
251 F.3d
little if
principally
had an antidiscrimination
punitive damages
punitive damages
without basis.
not be
good
law,
Supreme
comply
any
An
concerns; Tepperwien permitted passing Entergy’s application judg for representative lawyer’s law, have a from his ment as a matter of obligated we are in the participate meeting by office tele- to view the evidence the light most And when phone. Tepperwien complained favorable to Tepperwien, Galdieri-Ambro February Taggart ECP met Realty sini v. Nat’l Corp., & Dev. 136 F.3d him, concerns, (2d listened to his Cir.1998), investi- majority and the gated, responded and in writing. The holds that may grant we only motion if counseling letter was Tepper- evidence, rescinded. viewed, so is so deficient that wien noted afterwards that he was “satis- jury’s findings only could have been fied” with his interactions with ECP and the result of conjecture. sheer surmise and response with the to the concerns he had Op. at (citing Brady v. Wal-Mart raised. Stores, Inc., (2d asked to be moved to 531 F.3d Cir. 2008)). night shift so that he could avoid majority Because the ignores the Messina, mak- first of principles pays only these lip —with ing agreed. second, service to the respectfully I dis decision-— sent.
Far acting maliciously or indiffer-
ently egregiously, showed, the evidence A. Factual find, Background
and a jury only reasonable could to, did, sought address Viewed in light most favorable to perwien’s complaints good faith. It Tepperwien, presented evidence at trial gave heard, him an opportunity to be established the facts set forth below. concerns, listened to his and it took con- Beginning Messina, Vito who steps crete to address them. The district occupied position superior Tepper- that, correctly court held even assuming Point, at wien’s Indian began sexually ha- reasonably could have found for rassing him. sexually Messina had been claim, on his retaliation Enter- harassing men at Indian Point many gy judgment was entitled to as a matter of years. Messina told Tepperwien that he law on the punitive award of damages.
wanted to have sex with him and that CONCLUSION get could him jobs better plant if he ongoing acceded. The abu- We have considered Tepperwien’s re- sive sexual graduated banter in November maining arguments reject them as be- *18 assault, 2004 to a sexual which is when ing without merit. Tepperwien began complain. to above, For the reasons set forth judgment of the district court is affirmed 16, 2004, On November Tepperwien re- in all respects. ported the sexual assault to Human Re- sources. This was complaint his first of GLEESON, JOHN Judge, District discrimination, sex and the first “factfin- dissenting. against der” him soon followed. Essential- juryA found that Entergy ly, retaliated a factfinder at Indian Point is a di- against Tepperwien James for complaining employee rection to an to why show cause of Vito Messina’s ongoing sexual overtures he or she shouldn’t be found to have violat- and unwanted sexual contacts. It also ed a rule. For example, as em- found that Entergy’s treatment of Tepper- ployee and union shop steward Alfred wien punitive warranted damages. trial, These Hicks explained at someone “[i]f was verdicts are entitled to deference. In absent ‘x’ days, number of company complaint stroking he admitted why out wien’s for a find ask fact-finder would days.” many thereupon so hair. employee was absent this on the information Depending by placing him him on ten “punished” J.A. 440. factfinder, disciplin- through the gleaned paid weeks of leave.1 action, of em- including termination ary Entergy brought Messina back to work could ployment, follow. taking early November 2005 without against Tepperwien first factfinder The Tepperwien him. any steps protect that he had allegation him to an subjected about Ter- complained this to Tepperwien he privileges his sick time while abused In- Barry, Security Manager at rence in- to a work-related hospitalized due laughed off Barry Point. first him dian early to December jury from December told that if Messina Tepperwien and then was his alleged “abuse” 2004. again, him sexually Tepperwien harassed hospitalization within report failure to his management. report Tepper- should it to hours, he not have though even could before, that he’d done that wien observed period because reported during fact, good it hadn’t much twice done bleeding. for internal in critical care once again because Messina was back Messina, unpunished August workplace proximity Tep- in close undeterred, Tepperwien on to came Tepperwien accused perwien. in a vehi- They together were work again. being “overemotional” and threatened to Tepper- Messina said he found cle when off site. J.A. 218. kick him the Tep- his on put attractive and hands wien exchange This occurred November shoulders, perwien’s neck hair. When 17, 2005, again once a factfinder Messina insisted protested, closely Tepperwien’s protected followed really wanted Messina to January activity. Specifically, early just much as wanted him as Messina touch equipment” factfinder “missing 2006 the Besides, said, touching. Messina to do objected commenced. want, as much I going you “I’m to touch falsely ac- claiming being he was inquiry, can it.” nothing you do about and there’s cused, Sanfilippo and Lieutenant —who Tepperwien continued J.A. 205. When conducting the factfinder on behalf by saying how object, responded Messina agreed him. Entergy essentially — by “playing hard to being “cute” he was all be guys we should “Out get.” J.A.205. this,” told Sanfilippo to about talking imme- the incident Tepperwien reported we “you’re likely guy the least perwien, diately. response The initial of the Site fact-finding.” J.A. should be Cherubini, John Security Superintendent, in January, Later escalated was, “[W]hy you punch him out?” didn’t by tak- complaint of sexual harassment explained that a J.A. Entergy to the NRC. ing it outside of easily men could between two armed fight *19 as well. Entergy’s retaliation escalated to something into that would have escalate 2006, week, 22, January on very next The Regulatory to the Nuclear reported be was (“NRC”), missing equipment factfinder which the Cherubini Commission Messina, “counseling,” up a sanction As ratcheted to a had to avoided. for agreed be Entergy characterizes as “disci- Tepper- was about itself when he confronted up on it. supposed to coun- never followed attend 1. Messina also didn’t, and seling, but he testified he 576 881; lawyer Entergy’s questioned Tep- J.A. Lieutenant which
pline.” J.A.
238.
about,
Security Supervisor
perwien
among
things,
and Site
Jason Hettler
other
the
counseling
the
22
January
counseling.
O’Brien conducted
James
told
the coun-
Tepperwien
session.
them
Meanwhile, Tepperwien had to deal with
going
for
seling was retaliation
in
having
disciplined
been
the form that
previous
why
week
asked
the
NRC
counseling.2 It
awas
substantial under-
giving
counseling. They
him a
they were
taking.
appeal
pro-
The
was a
mechanism
they
want
responded that
did not
to be
Employee
before
cedure
the
Concerns
do
doing
by
it but were ordered to
so
at
Program Entergy. Tepperwien was ad-
Cherubini.
Taggart
program
vised
Barbara
of that
week,
day
the
Bar-
during
following
One
attorney
to consult an
commencing
before
ry
grill Tepperwien
was determined to
process,
the
which he did. He was re-
complaint,
Tep-
it was
about the NRC
but
quired
“put
writing,”
everything
to
J.A.
day
perwien’s
Barry
off. So
called
did,
he
a lengthy
which
submission.
perwien and
to him lure him
lied
into
Taggart
He had to meet with
in mid-
Barry
work.
said someone was needed on
February
appeal. Although
discuss his
a “regulatory
matter” and
he finally
persuading Taggart
succeeded in
had
“picked
name
been
out of a hat.” J.A.
improperly disciplined,
that he
been
it
Tepperwien
247.
told Barry he had doc-
weeks,
took
more
than six
appointments
day,
tors’
scheduled for that
January 22,
from
March
through
Barry
Barry falsely
insisted.
assured
remove
counseling
the stain of the
matter,
simple
it was
lied to from his record.
put
As Cherubini himself
him about who would be
present,
said it after the counseling was rescinded on
regard
as a “personal
would
favor” if
6, Tepperwien
March
was disturbed
Tepperwien helped out and it would take
go
fact that he had
to Employee
Con-
Id. When
but a half-hour of his time.
discipline
cerns to erase the
rec-
in,
came
En-
and two
ord.3
tergy lawyers confronted him about the
complaint.
obviously
NRC
Tricked into an
Jury Finding
B. The
Retaliation
situation, Tepperwien sensibly
adversarial
evidence,
must,
if a
Viewing
asked
record could be made of what
as
we
no,
light
said. He was told
and he was
most
to Tepperwien,
favorable
there
further
told that
if he
persisted
justification
is no
the majority’s holding
for
request it
jury’s
finding
would be considered
failure to that
retaliation
cooperate
grounds
conjecture.
and would be
termi-
amounted
sheer surmise and
otherwise,
him.
nating
purported
concluding
half-hour mat-
majority
be-
ter became a
gins by saying
hostile three-hour interview
that factfinders at
not,
law,
about his sexual
complaint,
materially
harassment
at were
as a matter of
tion(s)”
dispute
identifying
There is no
at issue
action
subjected
counseling
January
equipment counseling).
to a
session
(describing
2006. See
881-82
J.A.
Janu-
ary
“counseling”
as a
"conversation”
Finally,
in mid-March 2006
session”);
("re-
“counseling
J.A.
charge
filed a formal
with the EEOC. Thus
session”).
scinding]
counseling
aborted)
(and
bogus
eventually
There is
ensued a
fact-
*20
similarly
dispute
counseling
no
that a
regarding allowing
session
finder
an
who had
officer
Entergy
alcohol)
"discipline.”
at
strong
constitutes
See J.A.
(possibly
smell
into the facil-
(form "documenting] disciplinary
ity-
881-82
ac-
they
well
been
from mak-
may
because
have
dissuaded
actions
employment
adverse
occurrences,”
Tepper-
discrimination,
that
charge
a future
of
de-
ing
were “common
help-
were
acknowledged factfinders
spite
wien
the fact that factfinders were com-
situations,
that
was
“there
ful in most
employees,
mon for other
and the
the
Entergy to initiate”
reason for
good
in so finding.
acted within reason
atOp.
against Tepperwien.
factfinders
Second, although Tepperwien indeed
situations,
in
testified that
“most
fact-find-
common
were indeed
occur-
Factfinders
(em-
helpful,”
ers are there to be
J.A. 229
rences,
He had
Tepperwien.
but not for
added),
phasis
clear
of
testi-
import
the
his
in
engaging
protect-
until
none
he started
situation,
as a
in his
mony
whole is that
2004,4
activity in November
and then
ed
counseling (among
factfinders and the
the
after
of
they happened like clockwork
each
things)
they
other
were harmful because
major-
complaints about Messina. The
specter
discipline
raised the
of
and were
“[cjontext
that
ity correctly points out
a genuine workplace
issued
to address
in
determination of whether
matters”
our
protect-
punishment
concern but as
for his
adverse,
materially
employer action is
factfinder,
During
conduct.
Tep-
ed
one
Ry.
Fe
Burlington Northern & Santa
Co.
perwien
investigating
told the
officers that
White,
53, 69,
126 S.Ct.
v.
548 U.S.
“just
factfinder
another witch
the
was
(2006),
thus
he they deserve in which conjure a context Supreme The this one. than more exit Tepperwien’s like Weighing facts that the determina- emphasized has Court explana- at-trial and his survey responses meets challenged conduct tion of whether all of alongside responses, those tions espe- is standard materially adverse case, quintes- in the evidence the other Burlington North- cially fact-intensive. not a jury, of the sentially the function any significance ern, “the it stated review. post-verdict court depend will often act of retaliation given exit about heard case Tepperwien’s Con- circumstances. particular upon ex- heard as it survey, just impact social The real matters. text in that gave answers for the planations aon depends often behavior workplace it found that survey, and *23 circumstances, surrounding place. previously He had molested constellation of O’Hara, relationships which are expectаtions, represen- union by simple a recitation of fully captured years tative. And to prior ten per physical case, acts giving the words used events rise to this (who U.S. at 2405 formed.” 548 S.Ct. appears O’Hara’s father also to (internal omitted). Point) quotation marks And have worked at Indian had said year, Thompson this in v. N. Am. just earlier way “that’s Vito is.” J.A. 327. — Stainless, LP, —, “way” U.S. 131 S.Ct. way Entergy That was the al- (2011), Court 178 L.Ed.2d lowed him to be. statutory “[g]iven stated that the broad (cid:127) began Messina harassing variety workplace text and the of contexts in physical 2003. After a sexual as- occur, may in which retaliation Title VII’s began sault in November he re- simply provision antiretaliation not redu However, porting the harassment. comprehensive to a set clear cible of after shortly complaint each in-house at rules.” Id. 868. Retaliation claims thus made, was by bogus he was hassled implicate provision, remedial viola broad factfinder, and after the NRC com- of only tions which are determined after a plaint made, was he was hassled searching of all of chal aspects review bogus counseling, despite spotless all lenged actions the wider context prior record. they which occurred order to determine (cid:127) continued, The sexual abuse and in impact workplace the “real social of behav August 2005 was physi- there another obviously ior.” Jurors are better to suited cal touching Tepperwien of in a sexual- determining impact contempo the social of ly suggestive manner. rary workplace judges. behаvior than are event, immediately reported that majority only usurps The thus not though even inap- Messina admitted proper jury role of the but substitutes for hair, propriately touching the victim’s body significant, per a factfinder with “punishment” mainly consisted of haps disabling, even institutional limita ten of paid weeks leave. tions. (cid:127) fact, Barry had wanted fire C. The Damages Award Punitive of Messina, but speaking after to “un- For the same reasons sets aside the named others” at Indian he Point had jury’s verdict in favor of to reverse bring course and Messina claim, majority the retaliation also sets right back workplace. into the J.A. jury’s punitive aside award of dam- 216-17. The influence of un- those ages. Op. at 572-73. The majority twice why named others was taunt- Messina repeats jury its conclusion that a could ed Tepperwien by saying going “I’m “only good find” that tried in faith want, you touch I much as comply obligations with its Title under nothing you there’s can do about it.” Op. VII. 573-74. disagree. I J.A. 205. jury reasonably
The could have inferred (cid:127) When reminded employer evidence, bad faith from when the prior harassment and asked what viewed the light Tep- most favorable to going protect be done to him perwien, that established the following: against harassment, Barry’s further
(cid:127) Messina was a problem long Vito first ... “laugh[ reaction was to off’ ]
standing in the Indian Point work- the concern. J.A. 439. Damages Punitive D. The Amount to tell (cid:127) reaction His second him molested if that Messina typical perwien case heard this it. When report just should damages. again, punitive regarding instructions protested be damages may that such told It was abuse Messina’s because punish Enter- insufficient in its discretion awarded twice reported been deter it previously or to conduct outrageous gy *24 back being welcomed he was in the conduct and here in similar engaging from proximity in close workplace to consid- asked specifically into the It was future. being him of him, Barry “may adequately be accused Entergy to whether er to damages and threatened of actual award by “overemotional” an punished any J.A. of the site. for amount off As the kick him only.” J.A. 799. that was told jury the damages, to complained punitive (cid:127) after Right awarded, you to be the sum fixing lied Barry “in January in the NRC En- degree to which the consider his meeting on should a him to to lure himto wrongful its for punished be should tergy interro- of purpose for the sole day off which award degree to and the Then conduct complaint. the him about gating Entergy deter another will or one sum to fire of lawyer threatened company a from commit- Entergy like companies recording insisting on future.” J.A. in acts the wrongful ting con- adversarial obviously an what was 799-800. frontation. (i.e.,
(cid:127) “outage” other instruc- those and a scheduled Equipped When with reactors) in Entergy, the nuclear that turning tions, jury off decided the in- meeting that the attorney argued 2006 occasioned to early whose management security unless liability Tepper- the no volving could be there hostility toward staff, made his was a homosexu- Messina proved that wien deterrence, respond- so to all. clear al, рunishment needed Messi- put damages. Entergy $500,000 outage, punitive in to the ing awarded it Tepperwien, together damages with of such na back the calculation Though science, less de- given to the En- him to move precise requiring anything but escape quarrel to Messina.6 size, shift to night it’s difficult sirable tergy’s an award that jury’s assessment the The faith. reek of bad These actions finally to order necessary in size was that the all weighing in justified fully jury that attention, say to except Entergy’s get concluding that evidence and $300,000, of cap of statutory exceeds the Messina protecting in more interested 42 U.S.C. unaware. jury was the which sexually of his own consequences the from the 1981a(b)(3). Thus, I reduce would § his protecting than behavior harassing $300,000 but to award damages punitive brought they when retaliation victims from jury’s verdict. the uphold otherwise (and the Entergy’s that behavior NRC’s) attention. [*] [*] # [*] [*] [*] by company the by but the the two is done fact of the majority makes much company’s case. victim,” helps night hardly to moved asked be out, district com- pointed But Op. at 571-72. court As the shift. Id. district trial, scarcely de- less judge observed moved Messina pany could have employee it failed when an credit requiring by serves its shift instead night desirable It's Dodge.” J.A. 652. “got out of protect move himself inaction own haras- separates company thing if one there. victim, separation of "if ser configuration At first blush the of ver- case seems anomalous.
dicts this One employer
would think that conduct that is $500,000
sufficiently egregious warrant punitive damages would also result
damage plaintiff, and hence merit an compensatory
award of damages. But
review of the trial record reveals that Tep-
perwien, a former member of the Strategic military
Air Command who wore a bearing sleeve,
on his presented even *25 attorneys tough
own as a and honorable
soldier who refused to buckle under Enter-
gy’s mishandling his complaints about jury’s
Messina. The determinations that compensation
he needed no despite Enter-
gy’s acts of retaliation but that Entergy punished
needed to be and deterred can- reasonably be characterized the re- conjecture;
sult surmise or to the con-
trary, they were amply supported by the
evidence at trial. I therefore respectfully
dissent. VALDIVIEZO-GALDAMEZ,
Mauricio
Petitioner
v.
ATTORNEY GENERAL OF STATES,
the UNITED
Respondent.
No. 08-4564.
United States Court of Appeals,
Third Circuit.
Argued: Feb.
Opinion Nov. filed: