     12-1526-cv
     Cox v. Onondaga Cnty. Sheriff’s Dep’t.

 1                    UNITED STATES COURT OF APPEALS
 2
 3
 4                        FOR THE SECOND CIRCUIT
 5
 6                           August Term, 2012
 7
 8   (Argued: February 20, 2013               Decided: July 23, 2014)
 9
10                        Docket No. 12-1526-cv
11
12   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
13
14   STEVEN COX, THOMAS BINGHAM, EDWARD KALIN, MICHAEL McCARTY, and
15   ROBERT SCOTT FELDMAN,
16
17              Plaintiffs-Appellants,
18
19                   v.
20
21   ONONDAGA COUNTY SHERIFF’S DEPARTMENT; KEVIN E. WALSH, in his
22   individual and official capacity; JOHN WOLOSZYN, in his
23   individual and official capacity; DEPUTY SHERIFF O’DELL WILLIS,
24   in his individual and official capacity; ONONDAGA COUNTY;
25   NICHOLAS PIRRO, ONONDAGA COUNTY EXECUTIVE; JOANNIE MAHONEY,
26   ONONDAGA COUNTY EXECUTIVE,
27
28              Defendants-Appellees.
29
30   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
31
32   B e f o r e:    WINTER, CHIN, and DRONEY, Circuit Judges.
33
34       Appeal from grant of summary judgment by the United States

35   District Court for the Northern District of New York (Norman A.

36   Mordue, Judge) dismissing appellants’ Title VII retaliation

37   claims.   We hold that the employer’s investigation into

38   appellants’ claims of racial harassment was not an adverse

39   employment action.   We also hold that while appellants have

40   established a prima facie case of retaliation based on threats
 1   of discipline against appellants for filing a false report with

 2   the EEOC, the employer has demonstrated a non-retaliatory

 3   purpose as a matter of law.   We therefore affirm.

 4                             A.J. BOSMAN, Bosman Law Firm, LLC,
 5                             Rome, NY, for Plaintiffs-
 6                             Appellants.
 7
 8                             CAROL L. RHINEHART, Onondaga County
 9                             Department of Law, Syracuse, NY, for
10                             Defendants-Appellees Onondaga County
11                             Sheriff’s Department, Kevin E. Walsh,
12                             O’Dell Willis, Onondaga County,
13                             Nicholas Pirro, and Joannie Mahoney.
14                             LAURA L. SPRING, Sugarman Law Firm,
15                             LLP, Syracuse, NY, for Defendant-
16                             Appellee John Woloszyn.
17
18   WINTER, Circuit Judge:
19
20        Onondaga County Sheriff’s Department (“Department”) Deputies

21   Steven Cox, Thomas Bingham, Edward Kalin, Michael McCarty, and

22   Robert Scott Feldman appeal from Judge Mordue’s granting of

23   summary judgment dismissing their complaint.   That complaint

24   asserted retaliation for their complaints of racial harassment to

25   the Equal Opportunity Employment Commission (“EEOC”), in

26   violation of Title VII, 42 U.S.C. § 2000e-3.

27        We hold that the Department’s initiation and conduct of an

28   investigation into:   (i) the white appellants’ claims of racial

29   harassment alleged to have been generated by an African American

30   officer, and (ii) a complaint against appellants for filing false

31   reports with the EEOC of such harassment, were not adverse

32   employment actions.   We also hold that threats by the Department


                                      2
 1   to charge appellants with making a false report to the EEOC

 2   established a prima facie case of illegal retaliation but that

 3   the Department has shown a non-retaliatory purpose, and

 4   appellants have presented no evidence of pretext.

 5                                 BACKGROUND
 6
 7        On review of a grant of summary judgment dismissing a

 8   complaint, we view the record in the light most favorable to

 9   appellants.   Gallo v. Prudential Resid. Servs., Ltd., 22 F.3d

10   1219, 1223 (2d Cir. 1994).

11        The present dispute began when appellants Cox, McCarty,

12   Feldman, and Bingham, as well as a lieutenant, non-appellant Jim

13   Raus, shaved their heads to demonstrate solidarity with appellant

14   Kalin, a cancer patient who lost his hair as a result of

15   chemotherapy treatments.     All were employed as “transport/custody

16   officers” in the Onondaga County Sheriff’s Department.    On August

17   26, 2005, appellants and Raus filed what is known as a “blue

18   form” complaint, initiating an internal departmental procedure,

19   alleging racial harassment.    A blue form complaint usually

20   results only in an informal investigation and not in a full

21   investigation by the Department’s internal investigation arm, the

22   Professional Standards Unit (“PSU”).

23        In the blue form complaint, the deputies and lieutenant

24   stated that they had been the victims of rumors, based on their

25   shaved heads, that they were “skinheads” –- i.e. members of a


                                        3
 1   white-supremacist group.   The complaint alleged that “rumors and

 2   the talk in the Custody Division [was then] that [the deputies

 3   and Lieutenant Raus were] members of a skin head organization.”

 4        It also stated that “this vicious labeling of [the deputies

 5   and lieutenant] was apparently started by a[n] African American

 6   Deputy, who work[ed] with [them] in the Transport Unit.”

 7   Specifically, the blue form complaint alleged that an African

 8   American Deputy, O’Dell Willis, had approached Cox and questioned

 9   him about why his head was shaven.   It further alleged that

10   shortly thereafter, other, unnamed African American Deputies

11   approached Cox, Feldman, and McCarty and questioned them about

12   their shaved heads.   None of the inquiries, whether by Willis or

13   by the unnamed deputies, was alleged to have been accusatory or

14   confrontational.   Finally, the complaint alleged the

15   complainants’ belief that the rumors had made the workplace

16   “racially hostile and unsafe” and in addition, “put [their]

17   families, wives and children in danger.”   It appears from

18   developments described infra that while Department employees had

19   asked about why appellants’ heads were shaved and perhaps

20   mentioned the existence of the rumors, the accusatory harassment

21   was by inmates.

22        The Department’s Assistant Chief Wasilewski instructed

23   former Captain Woloszyn to investigate the complainants’

24   allegations.   Woloszyn’s investigation concluded with a report


                                      4
 1   dated October 21, 2005, that found no evidence of

 2   harassment.    According to Woloszyn’s report, certain deputies had

 3   inquired, but not in a hostile way, why the deputies had shaved

 4   their heads.    According to Woloszyn’s report, none of the

 5   appellants had heard Department members directly accuse them of

 6   being skinheads.   Rather, they had heard only from others that

 7   such comments had been made.    However, after being interviewed by

 8   Woloszyn, Lieutenant Raus withdrew as a complainant because he

 9   “was not approached by anyone and did not feel harassed but was

10   misled [by Cox] into believing” that harassing conduct had

11   occurred.

12        The Woloszyn report settled little.     The subsequent PSU

13   investigation, discussed infra, revealed that while Woloszyn’s

14   conclusions about the lack of first-hand testimony about

15   accusatory behavior was correct so far as it went, he may not

16   have actually interviewed appellants McCarty or Bingham, or

17   several other deputies, whom he claimed to have interviewed.

18   Nevertheless, with the assistance of then-Union president Deputy

19   Dan Mathews and a union attorney, the five appellants filed

20   individual racial harassment complaints with the EEOC between

21   September 29 and October 12, 2005.

22        Appellants’ EEOC complaints, which were under oath, differed

23   materially from their blue form complaint.    Instead of alleging,

24   as they did in the blue form complaint, a non-hostile encounter


                                       5
 1   in which Willis simply asked Cox why his head was shaven, Cox and

 2   McCarty stated to the EEOC that an unnamed African American

 3   Deputy had accused them of being skinheads in a face to face

 4   confrontation.   On this record, the reference to an African

 5   American Deputy has to be understood to be Willis.    Willis is the

 6   only African American Deputy mentioned by name in the blue form

 7   complaint, which strongly implies -- all but expressly states --

 8   that Willis is the source of the allegedly harassing rumors.     The

 9   PSU investigation, described infra, collected testimony that

10   Willis was believed by all to be the source.   The complaint in

11   the present matter named Willis as a defendant and directly

12   alleged that the hostile environment was “fanned by the actions

13   of Defendant Willis.”   On this record, the reference to an

14   unnamed African American Deputy would have been understood, then

15   and now, to mean Willis.   Finally, statements by Cox, McCarty and

16   Feldman indicated prior, hostile, but unrelated, encounters with

17   Willis.   Nothing in appellants’ brief claims that anyone but

18   Willis was believed to be the source of the alleged harassment.

19        Feldman and Bingham also complained that they had heard from

20   other deputies that they had been referred to as skinheads and

21   called racist by African American Deputies.    Kalin’s complaint

22   stated that he had been confronted with the existence of rumors

23   that he was a skinhead.    Every appellant complained that the

24   Department had acted upon similar complaints of harassment by

                                       6
 1   African American Deputies but failed to act upon theirs.

 2        On October 26, 2005, the Department filed a response with

 3   the EEOC, signed by Assistant Chief Wasilewski.    The response

 4   stated that Wasilewski could find no merit to the harassment

 5   alleged in either the blue form or the EEOC complaint filed by

 6   appellants.   It also stated that “the employer has made every

 7   effort to determine if any harassment has occurred in this

 8   incident.   In furtherance of that end, I have submitted this

 9   entire package to the Onondaga County Sheriff’s Office

10   Professional Standards Unit, our internal investigation arm, for

11   their review, recommendation, and interdiction.”    The submission

12   to the PSU was pursuant to a written Onondaga policy that

13   harassment complaints were to be investigated by the PSU at the

14   Department Chief’s direction.

15        On December 12, 2005, the EEOC dismissed all appellants’

16   complaints and issued a notice to appellants of their right to

17   sue within 90 days.   However, appellants never pursued the

18   harassment claim further.

19        The PSU continued with its investigation.     When it

20   commenced, it had before it:    (i) the original blue form

21   complaint; (ii) the individual EEOC complaints; (iii) Lieutenant

22   Raus’s written withdrawal of his blue form complaint; (iv) the

23   October 21, 2005 report of Captain Woloszyn; and (v) the October

24   26, 2005 statement to the EEOC.   Also before the PSU was a


                                       7
 1   misconduct allegation by Assistant Chief Wasilewski that he

 2   forwarded to the PSU on November 11, 2005.          He alleged that Cox,

 3   McCarty, Feldman, Bingham, Kalin, and Lieutenant Raus violated

 4   Departmental regulations by filing false reports.1           This

 5   allegation was presumably based on the inconsistent factual

 6   claims asserted in the blue form complaint and EEOC filings.

 7   Wasilewski’s misconduct complaint also accused Woloszyn of false

 8   statements, presumably for claiming non-existent interviews in

 9   his report.

10         The PSU thus had before it a variety of issues:           (i) whether

11   appellants had been racially harassed because of rumors started

12   by Willis that they were skinheads; (ii) whether appellants’

13   complaints of racial harassment generated by Willis were

14   knowingly false; and (iii) whether Woloszyn had made a false

15   report regarding his investigation into (i).

16         The issues were yet more complicated.         The misconduct

17   complaint in (ii), if upheld, would support an inference that

18   several white officers had engaged in a coordinated effort to

19   harass Willis, who had earlier prevailed in a Title VII lawsuit

20   against the Department alleging a hostile work environment and



     1
       The misconduct complaint was based on Sections 2.8 and 4.3 of the
     Department’s policy and procedures. Section 2.8 provides, “[m]embers shall
     refrain from actions or conduct while on duty which may discredit a member or
     the Sheriff’s Office.” Section 4.3 provides, “[m]embers shall not make or
     submit a report or document, which contains information known by the member to
     be inaccurate, false or improper . . . nor influence another person to do so.”


                                           8
 1   retaliation.   See Willis v. Onondaga County Sheriff’s Department,

 2   No. 5:04-cv-00828 (GTS-GHL), Dkt. No. 67-68, 77.    The existence

 3   of racial tension in the Department at pertinent times is evident

 4   from the record, as is the belief of appellants that their

 5   grievances were treated less sympathetically than those of

 6   African American officers, particularly Willis.

 7        In that context, Sergeant Smith began the PSU

 8   investigation.    Smith interviewed the appellants individually, in

 9   the presence of a union representative.     None of them, including

10   McCarty and Cox, claimed to have been called a skinhead to their

11   face by another deputy.   Appellants, and most of the other

12   officers in the Department who were interviewed, reported the

13   existence, even persistent existence, of rumors that appellants

14   were skinheads.    However, none had heard any officer make such an

15   allegation, albeit several officers made non-hostile inquiries as

16   to why appellants had shaved their heads.    Some officers also

17   testified to the existence of rumors that Willis had started the

18   rumors.   In his interview with Sergeant Smith, which took place

19   about two weeks after appellants’ interviews, Willis flatly

20   denied that he had said anything to suggest the deputies were

21   skinheads and stated that the whole affair put undue stress on

22   him in his work.

23        During the individual interviews of appellants, each was

24   informed that disciplinary action against them was being


                                       9
 1   considered based on the falsity of the EEOC filings.    In addition

 2   to being questioned on how the skinhead rumors had started and

 3   the inconsistencies in some of their allegations, appellants were

 4   each questioned about the Woloszyn investigation.

 5        Two reports resulted from the PSU investigation.    The first,

 6   dated January 26, 2006, summarized former Captain Woloszyn’s

 7   failure to thoroughly investigate the original blue form

 8   complaint as well as his submission of a false and misleading

 9   report to Assistant Chief Wasilewski in violation of Sections 2.8

10   and 4.3 of the Department’s policies and procedures.    See Note 1,

11   supra.

12        The second, dated January 31, 2006, summarized the

13   circumstances found to involve a violation of Department policies

14   and procedures in the filing of a false EEOC report by Cox and

15   McCarty.   This was based on Cox and McCarty’s conceded lack of

16   first-hand knowledge of harassment or confrontational behavior by

17   Willis, even though each alleged a face-to-face confrontation

18   with Willis in the EEOC complaint.

19        However, Sheriff Walsh, the head of the Department, decided

20   not to take any official action against Cox and McCarty.   Former

21   Captain Woloszyn was demoted.   Between appellants’ interviews and

22   Sheriff Walsh’s decision not to pursue charges against them, Cox

23   and Matthews, the then-acting Union President, unsuccessfully

24   attempted to obtain a copy of the PSU report upon the conclusion


                                     10
 1   of the investigation.

 2        On February 16, 2006, appellants filed a second round of

 3   EEOC complaints, this time alleging that the PSU investigation

 4   and threats of false reports charges were illegal retaliation for

 5   their harassment complaints.   The EEOC found evidence of

 6   retaliation, finding the department’s decision to investigate and

 7   consider disciplinary action against appellants for making false

 8   allegations in an EEOC complaint to have been discriminatory.    It

 9   noted that such actions might “have [had] a chilling effect upon

10   the willingness of individuals to speak out against employment

11   discrimination or to participate in the EEOC’s administrative

12   process or other employment discrimination proceedings.”

13        Appellants were issued notices of their right to sue and

14   timely filed the present action on April 9, 2008.   They alleged,

15   in pertinent part, that they were victims of a hostile work

16   environment and unlawful retaliation by the various appellees in

17   violation of Title VII and N.Y. Exec. Law § 296.    Appellants also

18   alleged violations of 42 U.S.C. §§ 1981, 1983, 1985, and 1988;

19   the Fourteenth Amendment; and Article 1, Section 11, of the New

20   York State Constitution.   Judge McCurn dismissed the claims

21   asserted under 42 U.S.C. § 1981 and the Title VII hostile work

22   environment claims sua sponte.   Cox v. Onondaga Cnty. Sheriff’s

23   Dep’t, No. 5:08-cv-387 (NPM), 2009 U.S. Dist. LEXIS 28101

24   (N.D.N.Y. Apr. 2, 2009).   The remaining claims were later


                                      11
 1   dismissed on a grant of summary judgment by Judge Mordue, who

 2   held that there was no evidence of a requisite adverse employment

 3   action.    Cox v. Onondaga Cnty. Sheriff’s Dep’t, No. 5:08-cv-387

 4   (NAM), 2012 U.S. Dist. LEXIS 43913 (N.D.N.Y. Mar. 29, 2012).

 5           Appellants have appealed the dismissal only of the

 6   retaliation claim.    They also claim that Judge Mordue should have

 7   recused himself because of a prior relationship with Sheriff

 8   Walsh.

 9                                 DISCUSSION

10           We review an appeal from a grant of summary judgment de

11   novo.     See, e.g., Terry v. Ashcroft 336 F.3d 128, 137 (2d Cir.

12   2003).    Summary judgment is appropriate only where there are no

13   issues of material fact and the movant is entitled to judgment as

14   a matter of law.    Id.   We may, however, affirm on any ground with

15   support in the record.    McElwee v. County of Orange, 700 F.3d

16   635, 640 (2d Cir. 2012).

17           In order to show a prima facie case of retaliation in

18   response to a motion for summary judgment, a plaintiff must

19   submit sufficient admissible evidence to allow a trier of fact to

20   find:    (i) conduct by the plaintiff that is protected activity

21   under Title VII; (ii) of which the employer was aware; (iii)

22   followed by an adverse employment action of a nature that would

23   deter a reasonable employee from making or supporting a

24   discrimination claim; (iv) that was causally connected to the


                                       12
 1   protected activity.         Kessler v. Westchester Cnty. Dep’t of Soc.

 2   Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).2

 3           Once an employee establishes a prima facie case, the burden

 4   shifts to the employer to put forth evidence of a non-retaliatory

 5   rationale.       See Holt v. KMI-Continental, 95 F.3d 123, 130 (2d

 6   Cir. 1996).       Once the employer has done so, the employee may

 7   prevail by demonstrating that the stated rationale is mere

 8   pretext.      Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173,

 9   179-80 (2d Cir. 2005).         The employee at all times bears the

10   burden of persuasion to show a retaliatory motive.              Cosgrove v.

11   Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).               The

12   district court held that appellants had failed to establish a

13   prima facie case because they had suffered no adverse employment

14   action.

15           Appellants argue that several aspects of the PSU

16   investigation amount to the requisite adverse employment actions:

17   (i) the investigation was conducted by the PSU instead of within

18   the Department in contrast to other investigations of allegations

19   of harassment or hostile work environment that were handled

     2
         The statutory provision reads in pertinent part:

             It shall be an unlawful employment practice for an employer to
             discriminate against any of his employees . . . because he has
             opposed any practice made an unlawful employment practice by this
             subchapter, or because he has made a charge, testified, assisted,
             or participated in any manner in an investigation, proceeding, or
             hearing under this subchapter.

     42 U.S.C. § 2000e-3(a).


                                             13
 1   internally; (ii) the PSU’s interview of Deputy Willis was less

 2   confrontational than their own; (iii) the PSU interviews were

 3   more preoccupied with the failings of Captain Woloszyn’s

 4   investigation and the authorship of appellants’ paperwork and

 5   filings than with the substance of their allegations; and (iv)

 6   appellants’ request for a copy of the PSU report was denied on

 7   the grounds that disciplinary action was pending.    We deal

 8   separately, infra, with the portion of appellants’ retaliation

 9   claim resulting from the fact that they were informed during the

10   investigation that they could be brought up on criminal and

11   administrative charges based on their false complaint to the

12   EEOC.

13           As noted, adverse employment actions are those that “well

14   might . . . dissuade[] a reasonable worker from making or

15   supporting a charge of discrimination.”    Burlington N. & Santa Fe

16   Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations and

17   citations omitted).    However, “[c]ontext matters,” and so “the

18   significance of any given act of retaliation will often depend

19   upon the particular circumstances.”    Id. at 69.

20   a)   The PSU Investigation

21           An employer’s investigation of an EEOC complaint alleging

22   racial harassment without more -- that is, without additional

23   particularized facts evidencing a retaliatory intent and




                                       14
 1   resulting in, or amounting to, adverse job consequences for the

 2   complainant -- cannot sustain a valid retaliation complaint.

 3        While the relevant statutory provisions do not require an

 4   employer’s investigation, as was the case in Malik v. Carrier

 5   Corp., 202 F.3d 97, 105-06 (2d Cir. 2000) (federal law required

 6   investigation into workplace sexual harassment; failure to do so

 7   was basis for employer liability), they clearly contemplate that

 8   employers facing charges before the EEOC will fully inform

 9   themselves of all relevant circumstances.   After a complaint has

10   been filed, “in writing under oath or affirmation,” the

11   Commission must give notice to the employer within 10 days.     42

12   U.S.C. § 2000e-5(b).   Then the Commission investigates.     After

13   the EEOC has determined that there is reasonable cause to believe

14   that a complaint is true, the respondent (the employer) generally

15   will be asked to submit a position statement with supporting

16   documentation.   29 C.F.R. § 1614.108.   Occasionally, the

17   Commission will conduct a fact-finding conference in order to

18   investigate, which can include a meeting intended to determine

19   what facts are disputed and undisputed.   “Agencies may use an

20   exchange of letters or memoranda, interrogatories,

21   investigations, fact-finding conferences or any other fact-

22   finding methods that efficiently and thoroughly address the

23   matters at issue.”   29 C.F.R. § 1614.108(b).   Then the Commission

24   engages in “informal methods of conference, conciliation, and


                                     15
 1   persuasion.”   42 U.S.C. § 2000e-5(b).   The respondent has 30 days

 2   to reach a “conciliation agreement” with the Commission in order

 3   to remedy the discrimination.   42 U.S.C. § 2000e-5(f)(1).

 4        These provisions clearly contemplate that employers must be

 5   allowed to inform themselves of all facts relevant to an EEOC

 6   complaint.   Employers have a right to answer an EEOC complaint

 7   and are asked not only to engage in conciliation but also are

 8   sometimes asked to present their view of the facts.   If employers

 9   are at risk of liability from conducting a non-overreaching

10   internal investigation, meaningful conciliation and fact

11   conferences are not possible.

12        Moreover, we cannot blind ourselves to the fact that an

13   employer’s failure to conduct an investigation when faced even

14   with an internal complaint, much less a charge to the EEOC, might

15   be viewed as evidence of an indifference to racial

16   discrimination, if not acquiescence in it.   Indeed, we can say

17   with confidence that the law must give breathing room for such

18   investigations to be carried out.    See Malik, 202 F.3d at 106-07

19   (law must take care not to “reduce [employers’] incentives to

20   take reasonable corrective action,” so “employer[s’] conduct of

21   an investigation and determination of its scope must be viewed ex

22   ante”); United States v. N.Y. Transit Auth., 97 F.3d 672, 677-78

23   (2d Cir. 1996) (granting employers leeway in how to investigate

24   and defend against EEOC proceedings); cf. Tepperwien v. Entergy


                                     16
 1   Nuclear Operations, Inc., 663 F.3d 556, 568-70 (2d Cir. 2011)

 2   (fact-finding investigations that do not themselves qualify as

 3   disciplinary action but could lead to disciplinary action, where

 4   engaged in with good reason, do not constitute adverse employment

 5   actions under White).

 6        Therefore, employees who complain of racial discrimination,

 7   whether internally and/or through an EEOC complaint, may not

 8   claim retaliation simply because the employer undertakes a fact-

 9   finding investigation.

10        Having said that, we quickly add that an employer’s

11   investigation may constitute a cognizable retaliatory action if

12   carried out so as to result in a hostile work environment,

13   constructive discharge, or other employment consequences of a

14   negative nature, or if conducted in such an egregious manner as

15   to “dissuade a reasonable worker from making or supporting a

16   charge of discrimination.”   See White, 548 U.S. at 57; see also

17   Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (an

18   investigation that is lengthy in nature, prohibits promotions

19   during its pendency, and by its very nature places a “cloud over

20   [one’s] career” qualifies as an adverse employment action under

21   White).   Compare Rhodes v. Napolitano, 656 F. Supp. 2d 174, 185-

22   86 (D.D.C. 2009) (noting that length and scope of an

23   investigation into unrelated misconduct could satisfy the White

24   standard), with Tepperwien, 663 F.3d at 568-70 (fact-finding


                                     17
 1   investigations engaged in with good reason that could but do not

 2   necessarily lead to disciplinary action constitute trivial harms

 3   or “petty and minor annoyances” that would not unduly dissuade a

 4   reasonable employee from seeking redress under Title VII).

 5        Apart from the threat of disciplinary proceedings, dealt

 6   with separately infra, none of the circumstances relied upon by

 7   appellants, whether viewed individually or collectively, are

 8   sufficient to allow a finder of fact to find illegal retaliatory

 9   acts in the conduct of the PSU investigation.

10        First, appellants claim that their “blue form” complaint

11   about racial harassment was the only such complaint to have been

12   investigated by the PSU.   However, the circumstances fully

13   justified the investigation by the PSU.   Woloszyn’s failures

14   ensured that any further attempt to handle these matters

15   informally would be viewed with great skepticism.   Indeed,

16   appellants have not claimed that any similar matter --

17   allegations of harassment followed by a defective

18   investigation -- had been handled informally.

19        Critically, moreover, the written policy of the Onondaga

20   Sheriff’s Department authorized PSU investigation of harassment

21   complaints at the direction of the Chief.    Unlike the

22   circumstances in Stern v. Columbia University, therefore, the PSU

23   investigation was not conducted by a body established in an ad

24   hoc fashion to look into this matter only.    131 F.3d 305, 309 (2d


                                     18
 1   Cir. 1997).   Even if appellants’ complaint of racial harassment

 2   was the first to result in a PSU investigation, therefore, no

 3   trier of fact could find that it was prompted by a retaliatory

 4   motive or constituted a hostile work environment, constructive

 5   discharge, or deterrent to seeking relief from the EEOC.

 6        Second, appellants rely upon the fact that Deputy Willis was

 7   treated less confrontationally during his PSU interview.

 8   However, Willis’s interview occurred after the interviews of

 9   appellants revealed that, contrary to appellants’ EEOC claim, no

10   appellant (or anyone else) ever saw or heard Willis make any

11   remarks about appellants being skinheads.   Even assuming that the

12   questioning of appellants and Willis was of a different character

13   and the difference might be deemed cognizable retaliation, which

14   we do not decide, there were sound reasons not to be

15   confrontational with Willis.

16        Third, appellants’ arguments regarding the nature and

17   subject of the questioning during their respective interviews is

18   frivolous.    As noted, the PSU had before it a number of issues,

19   all of which resulted from appellants’ claims of racial

20   harassment.   The questioning complained of related to these

21   matters and was clearly legitimate.

22        Finally, also frivolous is appellants’ argument that their

23   request for a copy of the PSU report was denied at the time it




                                      19
 1   was made.   Indeed, appellants identify no cognizable harm from

 2   that denial.

 3   b)   The Threats of False Report Charges Against Appellants

 4         As noted, during the PSU investigation, Sergeant Smith

 5   informed appellants that they might be brought up on charges as a

 6   result of having filed false statements.   When, a month later,

 7   appellants later inquired as to the status of the charges, they

 8   were told that charges were “pending.”

 9         We deal with the threat of false reports charges separately

10   because it raises important issues as to the breadth of legally

11   cognizable claims of retaliation for the filing of charges with

12   the EEOC.   Obviously, such a threat would often –- even usually

13   –- be a deterrent to reasonable employees making or supporting

14   discrimination claims.

15         The statutory language, see Note 2, supra, is quite broad

16   but falls well short of suggesting that an absolute privilege

17   immunizes knowingly false EEOC charges.    Certainly, such conduct

18   might support criminal charges under 18 U.S.C. §§ 1621 (perjury)

19   and 1505 (obstruction of agency proceedings).

20         However, the fact that false charges before the EEOC are not

21   permitted does not necessarily lead to the conclusion that the

22   employers targeted by such charges are entitled to respond with

23   disciplinary action against the filing employee.   Some circuits,

24   see, e.g., Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998 (5th


                                     20
 1   Cir. 1969), have concluded that employers have no authority to

 2   “unilaterally” police abuses of the EEOC process.            Id. at 1005.

 3   Others take the view that, “Title VII was designed to protect the

 4   rights of employees who in good faith protest the discrimination

 5   they believe they have suffered” and not to “arm employees with a

 6   tactical coercive weapon under which employees can make baseless

 7   claims simply to advance their own retaliatory motives and

 8   strategies.”    Mattson v. Caterpillar, Inc., 359 F.3d 885, 890-91

 9   (7th Cir. 2004) (internal quotations omitted); see also Richey v.

10   City of Independence, 540 F.3d 779, 784-86 (8th Cir. 2008) (where

11   documentary evidence results in a conclusion that an employee has

12   violated non-discriminatory company policy, even if the

13   violations occurred in the context of a workplace harassment

14   investigation, resulting adverse employment actions are not

15   retaliatory).

16        One district court in this circuit has seemingly held that

17   such threats are per se illegal retaliation.           See Proulx v.

18   Citibank, N.A., 681 F. Supp. 199, 200-01 (S.D.N.Y. 1988), aff’d

19   without opinion, 862 F.2d 304 (2d Cir. 1988).3           However, this

20   court has applied a “good faith” requirement for protected

21   activity in retaliation cases like the present one.            See Quinn v.

22   Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998),

     3
       We note that while Proulx was affirmed by this court as to the quantum of
     damages, the liability finding was not appealed. See Proulx v. Citibank,
     N.A., 709 F. Supp. 396, 397 (S.D.N.Y. 1989).


                                          21
 1   abrogated in part on other grounds by Nat’l R.R. Passenger Corp.

 2   v. Morgan, 536 U.S. 101 (2002) (“Quinn need not establish that

 3   she successfully described in that complaint conduct amounting to

 4   a violation of Title VII.   She need only demonstrate that she had

 5   a good faith, reasonable belief that the underlying challenged

 6   actions of the employer violated the law.” (internal quotations

 7   and citations omitted)).

 8        In reviewing the facts of these various cases, we find no

 9   inconsistencies in their results when the ordinary McDonnell-

10   Douglas burden-shifting regime, which governs retaliation cases,

11   Terry, 336 F.3d at 141, is applied.   Once the plaintiff has

12   proffered sufficient evidence that a threat of discipline

13   triggered by a claim of discrimination was made, a prima facie

14   case of retaliation will usually have been established.

15        We therefore believe it fairly obvious that a prima facie

16   case has been established in the present matter.   As noted, the

17   burden of producing evidence of a non-retaliatory reason for the

18   threat of discipline shifts to the Department, with the burden of

19   showing pretext falling on plaintiffs, who bear the ultimate

20   burden of showing illegal retaliation.   It may well be that

21   retaliation cases based on such threats are generally strong and

22   the employers’ rebuttals generally non-existent or weak.

23   However, the facts of the present case may be a tad unusual, but




                                     22
 1   they are sufficient to support summary judgment for the

 2   appellees.

 3        Sergeant Smith’s statements about charges for making a false

 4   report being possible were completely reasonable in light of the

 5   record.   Appellants, who had initiated the entire matter, had

 6   given materially inconsistent statements regarding Willis’s

 7   behavior.    These ranged from describing Willis as

 8   (understandably) asking why they had shaved their heads to

 9   stating that Willis had confronted them with accusations of being

10   skinheads.   The latter accusation was, on the record before us,

11   false, and seemingly intentionally so.         A misconduct complaint

12   based on these false accusations had been filed by Assistant

13   Chief Wasilewski and was referred to the PSU.          Informing

14   appellants of the possible results of the investigation was in

15   fact fair to them.4

16        Moreover, the false statements were intended by the officers

17   who made them, who were white, to establish a claim of racial

18   harassment by an African American officer.         In the context of

19   racial tension within the Department, false charges against

20   Willis could be viewed by a reasonable observer as themselves

21   racial harassment of Willis.       Indeed, Willis’s deposition

22   testimony indicated that he felt harassed by the accusations, and


     4
      No due process claim has been asserted by appellants, who were, in any
     event, not charged.


                                          23
 1   the PSU report noted that he felt “undue stress” at work as a

 2   result.

 3        Employers are under an independent duty to investigate and

 4   curb racial harassment by lower level employees of which they are

 5   aware.    See Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009).

 6   This is because the primary purpose of Title VII “is not to

 7   provide redress but to avoid harm.”         Faragher v. City of Boca

 8   Raton, 524 U.S. 775, 806 (1998).          It would therefore be anomalous

 9   to conclude that an employer is not allowed to investigate, with

10   a view to discipline, false complaints of harassment that

11   themselves might be viewed as intended as racial harassment.

12   Otherwise, employers might have to choose between liability for

13   retaliating against one group of employees or liability to

14   another group for not preventing the first group from harassment

15   of the second with false claims.5

16        Our decision is supported by another fact.           Law enforcement

17   officials are required to file reports accurately.           The

18   Department, therefore, has a greater interest in disciplining

19   officers who do not take that obligation seriously than do most

20   employers.   The importance of this policy is underlined by the

21   fact that a generally applicable, non-discriminatory, written
     5
       Smith did not threaten that the charges would be brought unless the EEOC
     charge was dropped so that the matter could be closed rather than
     investigated. Compare Lore v. City of Syracuse, 583 F. Supp. 2d 345, 367
     (N.D.N.Y. 2008) (statement that one will forego criminal and administrative
     charges if an EEOC complaint is dropped qualifies as an adverse employment
     action).


                                          24
 1   policy for dealing with false reporting exists in the Department.

 2   Moreover, a law enforcement officer who has filed a false charge

 3   under oath with a governmental agency may well be cross-examined

 4   about that false filing when a witness in an unrelated case where

 5   the officer’s credibility is in issue.   See Fed. R. Evid. 608(b).

 6         In contrast, appellants have presented no evidence that the

 7   warning about disciplinary action was intended to retaliate for

 8   any reason other than the apparent falsity of their EEOC charges

 9   and the complex circumstances those false charges created.   As

10   noted, they have the ultimate burden of proof on that issue.

11   Therefore, even if appellants have established a prima facie case

12   on their retaliation claim based on the threat of false reports

13   charges, the Department has presented evidence that defeats that

14   claim as a matter of law.

15   c)   Recusal

16         Title 28 U.S.C. § 455(a) requires a judge to recuse himself

17   “in any proceeding in which his impartiality might reasonably be

18   questioned.”   Under the statute, recusal is required in specific

19   contexts not relevant here as provided for in Section 455(b) and

20   also wherever, “an objective, disinterested observer fully

21   informed of the underlying facts, would entertain significant

22   doubt that justice would be done absent recusal.”   United States

23   v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal quotations

24   and alterations omitted).   The pertinent trigger for recusal is


                                     25
 1   the “appearance of partiality,” Chase Manhattan Bank v.

 2   Affiliated FM Ins. Co., 343 F.3d 120, 128-30 (2d Cir. 2003), and

 3   a denial of a motion to recuse is reviewed for abuse of

 4   discretion.   Id. at 126.

 5         Appellants argue that the fact that Judge Mordue recused

 6   himself from matters involving Sheriff Walsh in 2007 and 2009,

 7   see Leader v. Onondaga County, No. 09-cv-0493 (NAM/DEP), 2009

 8   U.S. Dist. LEXIS 39296 (N.D.N.Y. 2009), citing a long

 9   relationship between the two, compels the conclusion that Judge

10   Mordue should have recused himself from this litigation.    We

11   disagree.

12         While at one time there may have been a close relationship

13   between Sheriff Walsh and Judge Mordue, it is undisputed that

14   Judge Mordue, at the time of the instant litigation, had not seen

15   or spoken to Walsh since March 2005.   This fact, absent other

16   details about the relationship, negates any inference of

17   partiality.   See Independent Order of Foresters v. Donald, Lufkin

18   & Jenrette, Ind., 157 F.3d 933, 945 (2d Cir. 1998) (passage of

19   time negates inference of partiality).

20   d)   Unsealing the Record

21         Much of this opinion refers at critical points to parts of

22   the record that have been sealed.    Because of the importance of

23   the sealed material to our disposition of this matter, we order

24   that the entire record on appeal be unsealed.   See Joy v. North,


                                     26
1   692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by parties

2   moving for, or opposing, summary judgment should not remain under

3   seal absent the most compelling reasons.”); accord Stern, 131

4   F.3d at 307 (same).

5                              CONCLUSION

6        For the foregoing reasons, the judgment of the district

7   court is affirmed.

8




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