Cox v. Onondaga Cnty. Sheriff’s Dep’t.

12-1526-cv
Cox v. Onondaga Cnty. Sheriff’s Dep’t.
UNITED STATES COURT OF APPEALS 1
2
3
FOR THE SECOND CIRCUIT 4
5
August Term, 2012 6
7
(Argued: February 20, 2013 Decided: July 23, 2014) 8
9
Docket No. 12-1526-cv 10
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STEVEN COX, THOMAS BINGHAM, EDWARD KALIN, MICHAEL McCARTY, and 14
ROBERT SCOTT FELDMAN, 15
16
Plaintiffs-Appellants, 17
18
v. 19
20
ONONDAGA COUNTY SHERIFF’S DEPARTMENT; KEVIN E. WALSH, in his 21
individual and official capacity; JOHN WOLOSZYN, in his 22
individual and official capacity; DEPUTY SHERIFF O’DELL WILLIS, 23
in his individual and official capacity; ONONDAGA COUNTY; 24
NICHOLAS PIRRO, ONONDAGA COUNTY EXECUTIVE; JOANNIE MAHONEY, 25
ONONDAGA COUNTY EXECUTIVE, 26
27
Defendants-Appellees. 28
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B e f o r e: WINTER, CHIN, and DRONEY, Circuit Judges. 32
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Appeal from grant of summary judgment by the United States 34
District Court for the Northern District of New York (Norman A. 35
Mordue, Judge) dismissing appellants’ Title VII retaliation 36
claims. We hold that the employer’s investigation into 37
appellants’ claims of racial harassment was not an adverse 38
employment action. We also hold that while appellants have 39
established a prima facie case of retaliation based on threats 40

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of discipline against appellants for filing a false report with 1
the EEOC, the employer has demonstrated a non-retaliatory 2
purpose as a matter of law. We therefore affirm. 3
A.J. BOSMAN, Bosman Law Firm, LLC, 4
Rome, NY, for Plaintiffs- 5
Appellants. 6
7
CAROL L. RHINEHART, Onondaga County 8
Department of Law, Syracuse, NY, for 9
Defendants-Appellees Onondaga County 10
Sheriff’s Department, Kevin E. Walsh, 11
O’Dell Willis, Onondaga County, 12
Nicholas Pirro, and Joannie Mahoney. 13
LAURA L. SPRING, Sugarman Law Firm, 14
LLP, Syracuse, NY, for Defendant- 15
Appellee John Woloszyn. 16
17
WINTER, Circuit Judge: 18
19
Onondaga County Sheriff’s Department (“Department”) Deputies 20
Steven Cox, Thomas Bingham, Edward Kalin, Michael McCarty, and 21
Robert Scott Feldman appeal from Judge Mordue’s granting of 22
summary judgment dismissing their complaint. That complaint 23
asserted retaliation for their complaints of racial harassment to 24
the Equal Opportunity Employment Commission (“EEOC”), in 25
violation of Title VII, 42 U.S.C. § 2000e-3. 26
We hold that the Department’s initiation and conduct of an 27
investigation into: (i) the white appellants’ claims of racial 28
harassment alleged to have been generated by an African American 29
officer, and (ii) a complaint against appellants for filing false 30
reports with the EEOC of such harassment, were not adverse 31
employment actions. We also hold that threats by the Department 32
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to charge appellants with making a false report to the EEOC 1
established a prima facie case of illegal retaliation but that 2
the Department has shown a non-retaliatory purpose, and 3
appellants have presented no evidence of pretext. 4
BACKGROUND 5
6
On review of a grant of summary judgment dismissing a 7
complaint, we view the record in the light most favorable to 8
appellants. Gallo v. Prudential Resid. Servs., Ltd., 22 F.3d 9
1219, 1223 (2d Cir. 1994). 10
The present dispute began when appellants Cox, McCarty, 11
Feldman, and Bingham, as well as a lieutenant, non-appellant Jim 12
Raus, shaved their heads to demonstrate solidarity with appellant 13
Kalin, a cancer patient who lost his hair as a result of 14
chemotherapy treatments. All were employed as “transport/custody 15
officers” in the Onondaga County Sheriff’s Department. On August 16
26, 2005, appellants and Raus filed what is known as a “blue 17
form” complaint, initiating an internal departmental procedure, 18
alleging racial harassment. A blue form complaint usually 19
results only in an informal investigation and not in a full 20
investigation by the Department’s internal investigation arm, the 21
Professional Standards Unit (“PSU”). 22
In the blue form complaint, the deputies and lieutenant 23
stated that they had been the victims of rumors, based on their 24
shaved heads, that they were “skinheads” –- i.e. members of a 25
3

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white-supremacist group. The complaint alleged that “rumors and 1
the talk in the Custody Division [was then] that [the deputies 2
and Lieutenant Raus were] members of a skin head organization.” 3
It also stated that “this vicious labeling of [the deputies 4
and lieutenant] was apparently started by a[n] African American 5
Deputy, who work[ed] with [them] in the Transport Unit.” 6
Specifically, the blue form complaint alleged that an African 7
American Deputy, O’Dell Willis, had approached Cox and questioned 8
him about why his head was shaven. It further alleged that 9
shortly thereafter, other, unnamed African American Deputies 10
approached Cox, Feldman, and McCarty and questioned them about 11
their shaved heads. None of the inquiries, whether by Willis or 12
by the unnamed deputies, was alleged to have been accusatory or 13
confrontational. Finally, the complaint alleged the 14
complainants’ belief that the rumors had made the workplace 15
“racially hostile and unsafe” and in addition, “put [their] 16
families, wives and children in danger.” It appears from 17
developments described infra that while Department employees had 18
asked about why appellants’ heads were shaved and perhaps 19
mentioned the existence of the rumors, the accusatory harassment 20
was by inmates. 21
The Department’s Assistant Chief Wasilewski instructed 22
former Captain Woloszyn to investigate the complainants’ 23
allegations. Woloszyn’s investigation concluded with a report 24
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dated October 21, 2005, that found no evidence of 1
harassment. According to Woloszyn’s report, certain deputies had 2
inquired, but not in a hostile way, why the deputies had shaved 3
their heads. According to Woloszyn’s report, none of the 4
appellants had heard Department members directly accuse them of 5
being skinheads. Rather, they had heard only from others that 6
such comments had been made. However, after being interviewed by 7
Woloszyn, Lieutenant Raus withdrew as a complainant because he 8
“was not approached by anyone and did not feel harassed but was 9
misled [by Cox] into believing” that harassing conduct had 10
occurred. 11
The Woloszyn report settled little. The subsequent PSU 12
investigation, discussed infra, revealed that while Woloszyn’s 13
conclusions about the lack of first-hand testimony about 14
accusatory behavior was correct so far as it went, he may not 15
have actually interviewed appellants McCarty or Bingham, or 16
several other deputies, whom he claimed to have interviewed. 17
Nevertheless, with the assistance of then-Union president Deputy 18
Dan Mathews and a union attorney, the five appellants filed 19
individual racial harassment complaints with the EEOC between 20
September 29 and October 12, 2005. 21
Appellants’ EEOC complaints, which were under oath, differed 22
materially from their blue form complaint. Instead of alleging, 23
as they did in the blue form complaint, a non-hostile encounter 24
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in which Willis simply asked Cox why his head was shaven, Cox and 1
McCarty stated to the EEOC that an unnamed African American 2
Deputy had accused them of being skinheads in a face to face 3
confrontation. On this record, the reference to an African 4
American Deputy has to be understood to be Willis. Willis is the 5
only African American Deputy mentioned by name in the blue form 6
complaint, which strongly implies -- all but expressly states -- 7
that Willis is the source of the allegedly harassing rumors. The 8
PSU investigation, described infra, collected testimony that 9
Willis was believed by all to be the source. The complaint in 10
the present matter named Willis as a defendant and directly 11
alleged that the hostile environment was “fanned by the actions 12
of Defendant Willis.” On this record, the reference to an 13
unnamed African American Deputy would have been understood, then 14
and now, to mean Willis. Finally, statements by Cox, McCarty and 15
Feldman indicated prior, hostile, but unrelated, encounters with 16
Willis. Nothing in appellants’ brief claims that anyone but 17
Willis was believed to be the source of the alleged harassment. 18
Feldman and Bingham also complained that they had heard from 19
other deputies that they had been referred to as skinheads and 20
called racist by African American Deputies. Kalin’s complaint 21
stated that he had been confronted with the existence of rumors 22
that he was a skinhead. Every appellant complained that the 23
Department had acted upon similar complaints of harassment by 24
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African American Deputies but failed to act upon theirs. 1
On October 26, 2005, the Department filed a response with 2
the EEOC, signed by Assistant Chief Wasilewski. The response 3
stated that Wasilewski could find no merit to the harassment 4
alleged in either the blue form or the EEOC complaint filed by 5
appellants. It also stated that “the employer has made every 6
effort to determine if any harassment has occurred in this 7
incident. In furtherance of that end, I have submitted this 8
entire package to the Onondaga County Sheriff’s Office 9
Professional Standards Unit, our internal investigation arm, for 10
their review, recommendation, and interdiction.” The submission 11
to the PSU was pursuant to a written Onondaga policy that 12
harassment complaints were to be investigated by the PSU at the 13
Department Chief’s direction. 14
On December 12, 2005, the EEOC dismissed all appellants’ 15
complaints and issued a notice to appellants of their right to 16
sue within 90 days. However, appellants never pursued the 17
harassment claim further. 18
The PSU continued with its investigation. When it 19
commenced, it had before it: (i) the original blue form 20
complaint; (ii) the individual EEOC complaints; (iii) Lieutenant 21
Raus’s written withdrawal of his blue form complaint; (iv) the 22
October 21, 2005 report of Captain Woloszyn; and (v) the October 23
26, 2005 statement to the EEOC. Also before the PSU was a 24
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misconduct allegation by Assistant Chief Wasilewski that he 1
forwarded to the PSU on November 11, 2005. He alleged that Cox, 2
McCarty, Feldman, Bingham, Kalin, and Lieutenant Raus violated 3
Departmental regulations by filing false reports. 1 This 4
allegation was presumably based on the inconsistent factual 5
claims asserted in the blue form complaint and EEOC filings. 6
Wasilewski’s misconduct complaint also accused Woloszyn of false 7
statements, presumably for claiming non-existent interviews in 8
his report. 9
The PSU thus had before it a variety of issues: (i) whether 10
appellants had been racially harassed because of rumors started 11
by Willis that they were skinheads; (ii) whether appellants’ 12
complaints of racial harassment generated by Willis were 13
knowingly false; and (iii) whether Woloszyn had made a false 14
report regarding his investigation into (i). 15
The issues were yet more complicated. The misconduct 16
complaint in (ii), if upheld, would support an inference that 17
several white officers had engaged in a coordinated effort to 18
harass Willis, who had earlier prevailed in a Title VII lawsuit 19
against the Department alleging a hostile work environment and 20
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

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retaliation. See Willis v. Onondaga County Sheriff’s Department, 1
No. 5:04-cv-00828 (GTS-GHL), Dkt. No. 67-68, 77. The existence 2
of racial tension in the Department at pertinent times is evident 3
from the record, as is the belief of appellants that their 4
grievances were treated less sympathetically than those of 5
African American officers, particularly Willis. 6
In that context, Sergeant Smith began the PSU 7
investigation. Smith interviewed the appellants individually, in 8
the presence of a union representative. None of them, including 9
McCarty and Cox, claimed to have been called a skinhead to their 10
face by another deputy. Appellants, and most of the other 11
officers in the Department who were interviewed, reported the 12
existence, even persistent existence, of rumors that appellants 13
were skinheads. However, none had heard any officer make such an 14
allegation, albeit several officers made non-hostile inquiries as 15
to why appellants had shaved their heads. Some officers also 16
testified to the existence of rumors that Willis had started the 17
rumors. In his interview with Sergeant Smith, which took place 18
about two weeks after appellants’ interviews, Willis flatly 19
denied that he had said anything to suggest the deputies were 20
skinheads and stated that the whole affair put undue stress on 21
him in his work. 22
During the individual interviews of appellants, each was 23
informed that disciplinary action against them was being 24
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considered based on the falsity of the EEOC filings. In addition 1
to being questioned on how the skinhead rumors had started and 2
the inconsistencies in some of their allegations, appellants were 3
each questioned about the Woloszyn investigation. 4
Two reports resulted from the PSU investigation. The first, 5
dated January 26, 2006, summarized former Captain Woloszyn’s 6
failure to thoroughly investigate the original blue form 7
complaint as well as his submission of a false and misleading 8
report to Assistant Chief Wasilewski in violation of Sections 2.8 9
and 4.3 of the Department’s policies and procedures. See Note 1, 10
supra. 11
The second, dated January 31, 2006, summarized the 12
circumstances found to involve a violation of Department policies 13
and procedures in the filing of a false EEOC report by Cox and 14
McCarty. This was based on Cox and McCarty’s conceded lack of 15
first-hand knowledge of harassment or confrontational behavior by 16
Willis, even though each alleged a face-to-face confrontation 17
with Willis in the EEOC complaint. 18
However, Sheriff Walsh, the head of the Department, decided 19
not to take any official action against Cox and McCarty. Former 20
Captain Woloszyn was demoted. Between appellants’ interviews and 21
Sheriff Walsh’s decision not to pursue charges against them, Cox 22
and Matthews, the then-acting Union President, unsuccessfully 23
attempted to obtain a copy of the PSU report upon the conclusion 24
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of the investigation. 1
On February 16, 2006, appellants filed a second round of 2
EEOC complaints, this time alleging that the PSU investigation 3
and threats of false reports charges were illegal retaliation for 4
their harassment complaints. The EEOC found evidence of 5
retaliation, finding the department’s decision to investigate and 6
consider disciplinary action against appellants for making false 7
allegations in an EEOC complaint to have been discriminatory. It 8
noted that such actions might “have [had] a chilling effect upon 9
the willingness of individuals to speak out against employment 10
discrimination or to participate in the EEOC’s administrative 11
process or other employment discrimination proceedings.” 12
Appellants were issued notices of their right to sue and 13
timely filed the present action on April 9, 2008. They alleged, 14
in pertinent part, that they were victims of a hostile work 15
environment and unlawful retaliation by the various appellees in 16
violation of Title VII and N.Y. Exec. Law § 296. Appellants also 17
alleged violations of 42 U.S.C. §§ 1981, 1983, 1985, and 1988; 18
the Fourteenth Amendment; and Article 1, Section 11, of the New 19
York State Constitution. Judge McCurn dismissed the claims 20
asserted under 42 U.S.C. § 1981 and the Title VII hostile work 21
environment claims sua sponte. Cox v. Onondaga Cnty. Sheriff’s 22
Dep’t, No. 5:08-cv-387 (NPM), 2009 U.S. Dist. LEXIS 28101 23
(N.D.N.Y. Apr. 2, 2009). The remaining claims were later 24
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dismissed on a grant of summary judgment by Judge Mordue, who 1
held that there was no evidence of a requisite adverse employment 2
action. Cox v. Onondaga Cnty. Sheriff’s Dep’t, No. 5:08-cv-387 3
(NAM), 2012 U.S. Dist. LEXIS 43913 (N.D.N.Y. Mar. 29, 2012). 4
Appellants have appealed the dismissal only of the 5
retaliation claim. They also claim that Judge Mordue should have 6
recused himself because of a prior relationship with Sheriff 7
Walsh. 8
DISCUSSION 9
We review an appeal from a grant of summary judgment de 10
novo. See, e.g., Terry v. Ashcroft 336 F.3d 128, 137 (2d Cir. 11
2003). Summary judgment is appropriate only where there are no 12
issues of material fact and the movant is entitled to judgment as 13
a matter of law. Id. We may, however, affirm on any ground with 14
support in the record. McElwee v. County of Orange, 700 F.3d 15
635, 640 (2d Cir. 2012). 16
In order to show a prima facie case of retaliation in 17
response to a motion for summary judgment, a plaintiff must 18
submit sufficient admissible evidence to allow a trier of fact to 19
find: (i) conduct by the plaintiff that is protected activity 20
under Title VII; (ii) of which the employer was aware; (iii) 21
followed by an adverse employment action of a nature that would 22
deter a reasonable employee from making or supporting a 23
discrimination claim; (iv) that was causally connected to the 24
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protected activity. Kessler v. Westchester Cnty. Dep’t of Soc. 1
Servs., 461 F.3d 199, 205-06 (2d Cir. 2006). 2
2
Once an employee establishes a prima facie case, the burden 3
shifts to the employer to put forth evidence of a non-retaliatory 4
rationale. See Holt v. KMI-Continental, 95 F.3d 123, 130 (2d 5
Cir. 1996). Once the employer has done so, the employee may 6
prevail by demonstrating that the stated rationale is mere 7
pretext. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173, 8
179-80 (2d Cir. 2005). The employee at all times bears the 9
burden of persuasion to show a retaliatory motive. Cosgrove v. 10
Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). The 11
district court held that appellants had failed to establish a 12
prima facie case because they had suffered no adverse employment 13
action. 14
Appellants argue that several aspects of the PSU 15
investigation amount to the requisite adverse employment actions: 16
(i) the investigation was conducted by the PSU instead of within 17
the Department in contrast to other investigations of allegations 18
of harassment or hostile work environment that were handled 19
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).
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internally; (ii) the PSU’s interview of Deputy Willis was less 1
confrontational than their own; (iii) the PSU interviews were 2
more preoccupied with the failings of Captain Woloszyn’s 3
investigation and the authorship of appellants’ paperwork and 4
filings than with the substance of their allegations; and (iv) 5
appellants’ request for a copy of the PSU report was denied on 6
the grounds that disciplinary action was pending. We deal 7
separately, infra, with the portion of appellants’ retaliation 8
claim resulting from the fact that they were informed during the 9
investigation that they could be brought up on criminal and 10
administrative charges based on their false complaint to the 11
EEOC. 12
As noted, adverse employment actions are those that “well 13
might . . . dissuade[] a reasonable worker from making or 14
supporting a charge of discrimination.” Burlington N. & Santa Fe 15
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations and 16
citations omitted). However, “[c]ontext matters,” and so “the 17
significance of any given act of retaliation will often depend 18
upon the particular circumstances.” Id. at 69. 19
a) The PSU Investigation 20
An employer’s investigation of an EEOC complaint alleging 21
racial harassment without more -- that is, without additional 22
particularized facts evidencing a retaliatory intent and 23
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resulting in, or amounting to, adverse job consequences for the 1
complainant -- cannot sustain a valid retaliation complaint. 2
While the relevant statutory provisions do not require an 3
employer’s investigation, as was the case in Malik v. Carrier 4
Corp., 202 F.3d 97, 105-06 (2d Cir. 2000) (federal law required 5
investigation into workplace sexual harassment; failure to do so 6
was basis for employer liability), they clearly contemplate that 7
employers facing charges before the EEOC will fully inform 8
themselves of all relevant circumstances. After a complaint has 9
been filed, “in writing under oath or affirmation,” the 10
Commission must give notice to the employer within 10 days. 42 11
U.S.C. § 2000e-5(b). Then the Commission investigates. After 12
the EEOC has determined that there is reasonable cause to believe 13
that a complaint is true, the respondent (the employer) generally 14
will be asked to submit a position statement with supporting 15
documentation. 29 C.F.R. § 1614.108. Occasionally, the 16
Commission will conduct a fact-finding conference in order to 17
investigate, which can include a meeting intended to determine 18
what facts are disputed and undisputed. “Agencies may use an 19
exchange of letters or memoranda, interrogatories, 20
investigations, fact-finding conferences or any other fact- 21
finding methods that efficiently and thoroughly address the 22
matters at issue.” 29 C.F.R. § 1614.108(b). Then the Commission 23
engages in “informal methods of conference, conciliation, and 24
15

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persuasion.” 42 U.S.C. § 2000e-5(b). The respondent has 30 days 1
to reach a “conciliation agreement” with the Commission in order 2
to remedy the discrimination. 42 U.S.C. § 2000e-5(f)(1). 3
These provisions clearly contemplate that employers must be 4
allowed to inform themselves of all facts relevant to an EEOC 5
complaint. Employers have a right to answer an EEOC complaint 6
and are asked not only to engage in conciliation but also are 7
sometimes asked to present their view of the facts. If employers 8
are at risk of liability from conducting a non-overreaching 9
internal investigation, meaningful conciliation and fact 10
conferences are not possible. 11
Moreover, we cannot blind ourselves to the fact that an 12
employer’s failure to conduct an investigation when faced even 13
with an internal complaint, much less a charge to the EEOC, might 14
be viewed as evidence of an indifference to racial 15
discrimination, if not acquiescence in it. Indeed, we can say 16
with confidence that the law must give breathing room for such 17
investigations to be carried out. See Malik, 202 F.3d at 106-07 18
(law must take care not to “reduce [employers’] incentives to 19
take reasonable corrective action,” so “employer[s’] conduct of 20
an investigation and determination of its scope must be viewed ex 21
ante”); United States v. N.Y. Transit Auth., 97 F.3d 672, 677-78 22
(2d Cir. 1996) (granting employers leeway in how to investigate 23
and defend against EEOC proceedings); cf. Tepperwien v. Entergy 24
16

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Nuclear Operations, Inc., 663 F.3d 556, 568-70 (2d Cir. 2011) 1
(fact-finding investigations that do not themselves qualify as 2
disciplinary action but could lead to disciplinary action, where 3
engaged in with good reason, do not constitute adverse employment 4
actions under White). 5
Therefore, employees who complain of racial discrimination, 6
whether internally and/or through an EEOC complaint, may not 7
claim retaliation simply because the employer undertakes a fact- 8
finding investigation. 9
Having said that, we quickly add that an employer’s 10
investigation may constitute a cognizable retaliatory action if 11
carried out so as to result in a hostile work environment, 12
constructive discharge, or other employment consequences of a 13
negative nature, or if conducted in such an egregious manner as 14
to “dissuade a reasonable worker from making or supporting a 15
charge of discrimination.” See White, 548 U.S. at 57; see also 16
Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (an 17
investigation that is lengthy in nature, prohibits promotions 18
during its pendency, and by its very nature places a “cloud over 19
[one’s] career” qualifies as an adverse employment action under 20
White). Compare Rhodes v. Napolitano, 656 F. Supp. 2d 174, 185- 21
86 (D.D.C. 2009) (noting that length and scope of an 22
investigation into unrelated misconduct could satisfy the White 23
standard), with Tepperwien, 663 F.3d at 568-70 (fact-finding 24
17

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investigations engaged in with good reason that could but do not 1
necessarily lead to disciplinary action constitute trivial harms 2
or “petty and minor annoyances” that would not unduly dissuade a 3
reasonable employee from seeking redress under Title VII). 4
Apart from the threat of disciplinary proceedings, dealt 5
with separately infra, none of the circumstances relied upon by 6
appellants, whether viewed individually or collectively, are 7
sufficient to allow a finder of fact to find illegal retaliatory 8
acts in the conduct of the PSU investigation. 9
First, appellants claim that their “blue form” complaint 10
about racial harassment was the only such complaint to have been 11
investigated by the PSU. However, the circumstances fully 12
justified the investigation by the PSU. Woloszyn’s failures 13
ensured that any further attempt to handle these matters 14
informally would be viewed with great skepticism. Indeed, 15
appellants have not claimed that any similar matter -- 16
allegations of harassment followed by a defective 17
investigation -- had been handled informally. 18
Critically, moreover, the written policy of the Onondaga 19
Sheriff’s Department authorized PSU investigation of harassment 20
complaints at the direction of the Chief. Unlike the 21
circumstances in Stern v. Columbia University, therefore, the PSU 22
investigation was not conducted by a body established in an ad 23
hoc fashion to look into this matter only. 131 F.3d 305, 309 (2d 24
18

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Cir. 1997). Even if appellants’ complaint of racial harassment 1
was the first to result in a PSU investigation, therefore, no 2
trier of fact could find that it was prompted by a retaliatory 3
motive or constituted a hostile work environment, constructive 4
discharge, or deterrent to seeking relief from the EEOC. 5
Second, appellants rely upon the fact that Deputy Willis was 6
treated less confrontationally during his PSU interview. 7
However, Willis’s interview occurred after the interviews of 8
appellants revealed that, contrary to appellants’ EEOC claim, no 9
appellant (or anyone else) ever saw or heard Willis make any 10
remarks about appellants being skinheads. Even assuming that the 11
questioning of appellants and Willis was of a different character 12
and the difference might be deemed cognizable retaliation, which 13
we do not decide, there were sound reasons not to be 14
confrontational with Willis. 15
Third, appellants’ arguments regarding the nature and 16
subject of the questioning during their respective interviews is 17
frivolous. As noted, the PSU had before it a number of issues, 18
all of which resulted from appellants’ claims of racial 19
harassment. The questioning complained of related to these 20
matters and was clearly legitimate. 21
Finally, also frivolous is appellants’ argument that their 22
request for a copy of the PSU report was denied at the time it 23
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was made. Indeed, appellants identify no cognizable harm from 1
that denial. 2
b) The Threats of False Report Charges Against Appellants 3
As noted, during the PSU investigation, Sergeant Smith 4
informed appellants that they might be brought up on charges as a 5
result of having filed false statements. When, a month later, 6
appellants later inquired as to the status of the charges, they 7
were told that charges were “pending.” 8
We deal with the threat of false reports charges separately 9
because it raises important issues as to the breadth of legally 10
cognizable claims of retaliation for the filing of charges with 11
the EEOC. Obviously, such a threat would often –- even usually 12
–- be a deterrent to reasonable employees making or supporting 13
discrimination claims. 14
The statutory language, see Note 2, supra, is quite broad 15
but falls well short of suggesting that an absolute privilege 16
immunizes knowingly false EEOC charges. Certainly, such conduct 17
might support criminal charges under 18 U.S.C. §§ 1621 (perjury) 18
and 1505 (obstruction of agency proceedings). 19
However, the fact that false charges before the EEOC are not 20
permitted does not necessarily lead to the conclusion that the 21
employers targeted by such charges are entitled to respond with 22
disciplinary action against the filing employee. Some circuits, 23
see, e.g., Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998 (5th 24
20

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Cir. 1969), have concluded that employers have no authority to 1
“unilaterally” police abuses of the EEOC process. Id. at 1005. 2
Others take the view that, “Title VII was designed to protect the 3
rights of employees who in good faith protest the discrimination 4
they believe they have suffered” and not to “arm employees with a 5
tactical coercive weapon under which employees can make baseless 6
claims simply to advance their own retaliatory motives and 7
strategies.” Mattson v. Caterpillar, Inc., 359 F.3d 885, 890-91 8
(7th Cir. 2004) (internal quotations omitted); see also Richey v. 9
City of Independence, 540 F.3d 779, 784-86 (8th Cir. 2008) (where 10
documentary evidence results in a conclusion that an employee has 11
violated non-discriminatory company policy, even if the 12
violations occurred in the context of a workplace harassment 13
investigation, resulting adverse employment actions are not 14
retaliatory). 15
One district court in this circuit has seemingly held that 16
such threats are per se illegal retaliation. See Proulx v. 17
Citibank, N.A., 681 F. Supp. 199, 200-01 (S.D.N.Y. 1988), aff’d 18
without opinion, 862 F.2d 304 (2d Cir. 1988). 3 However, this 19
court has applied a “good faith” requirement for protected 20
activity in retaliation cases like the present one. See Quinn v. 21
Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998), 22
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

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abrogated in part on other grounds by Nat’l R.R. Passenger Corp. 1
v. Morgan, 536 U.S. 101 (2002) (“Quinn need not establish that 2
she successfully described in that complaint conduct amounting to 3
a violation of Title VII. She need only demonstrate that she had 4
a good faith, reasonable belief that the underlying challenged 5
actions of the employer violated the law.” (internal quotations 6
and citations omitted)). 7
In reviewing the facts of these various cases, we find no 8
inconsistencies in their results when the ordinary McDonnell- 9
Douglas burden-shifting regime, which governs retaliation cases, 10
Terry, 336 F.3d at 141, is applied. Once the plaintiff has 11
proffered sufficient evidence that a threat of discipline 12
triggered by a claim of discrimination was made, a prima facie 13
case of retaliation will usually have been established. 14
We therefore believe it fairly obvious that a prima facie 15
case has been established in the present matter. As noted, the 16
burden of producing evidence of a non-retaliatory reason for the 17
threat of discipline shifts to the Department, with the burden of 18
showing pretext falling on plaintiffs, who bear the ultimate 19
burden of showing illegal retaliation. It may well be that 20
retaliation cases based on such threats are generally strong and 21
the employers’ rebuttals generally non-existent or weak. 22
However, the facts of the present case may be a tad unusual, but 23
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they are sufficient to support summary judgment for the 1
appellees. 2
Sergeant Smith’s statements about charges for making a false 3
report being possible were completely reasonable in light of the 4
record. Appellants, who had initiated the entire matter, had 5
given materially inconsistent statements regarding Willis’s 6
behavior. These ranged from describing Willis as 7
(understandably) asking why they had shaved their heads to 8
stating that Willis had confronted them with accusations of being 9
skinheads. The latter accusation was, on the record before us, 10
false, and seemingly intentionally so. A misconduct complaint 11
based on these false accusations had been filed by Assistant 12
Chief Wasilewski and was referred to the PSU. Informing 13
appellants of the possible results of the investigation was in 14
fact fair to them. 4
15
Moreover, the false statements were intended by the officers 16
who made them, who were white, to establish a claim of racial 17
harassment by an African American officer. In the context of 18
racial tension within the Department, false charges against 19
Willis could be viewed by a reasonable observer as themselves 20
racial harassment of Willis. Indeed, Willis’s deposition 21
testimony indicated that he felt harassed by the accusations, and 22
4 No due process claim has been asserted by appellants, who were, in any
event, not charged.
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the PSU report noted that he felt “undue stress” at work as a 1
result. 2
Employers are under an independent duty to investigate and 3
curb racial harassment by lower level employees of which they are 4
aware. See Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009). 5
This is because the primary purpose of Title VII “is not to 6
provide redress but to avoid harm.” Faragher v. City of Boca 7
Raton, 524 U.S. 775, 806 (1998). It would therefore be anomalous 8
to conclude that an employer is not allowed to investigate, with 9
a view to discipline, false complaints of harassment that 10
themselves might be viewed as intended as racial harassment. 11
Otherwise, employers might have to choose between liability for 12
retaliating against one group of employees or liability to 13
another group for not preventing the first group from harassment 14
of the second with false claims. 5
15
Our decision is supported by another fact. Law enforcement 16
officials are required to file reports accurately. The 17
Department, therefore, has a greater interest in disciplining 18
officers who do not take that obligation seriously than do most 19
employers. The importance of this policy is underlined by the 20
fact that a generally applicable, non-discriminatory, written 21
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).
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policy for dealing with false reporting exists in the Department. 1
Moreover, a law enforcement officer who has filed a false charge 2
under oath with a governmental agency may well be cross-examined 3
about that false filing when a witness in an unrelated case where 4
the officer’s credibility is in issue. See Fed. R. Evid. 608(b). 5
In contrast, appellants have presented no evidence that the 6
warning about disciplinary action was intended to retaliate for 7
any reason other than the apparent falsity of their EEOC charges 8
and the complex circumstances those false charges created. As 9
noted, they have the ultimate burden of proof on that issue. 10
Therefore, even if appellants have established a prima facie case 11
on their retaliation claim based on the threat of false reports 12
charges, the Department has presented evidence that defeats that 13
claim as a matter of law. 14
c) Recusal 15
Title 28 U.S.C. § 455(a) requires a judge to recuse himself 16
“in any proceeding in which his impartiality might reasonably be 17
questioned.” Under the statute, recusal is required in specific 18
contexts not relevant here as provided for in Section 455(b) and 19
also wherever, “an objective, disinterested observer fully 20
informed of the underlying facts, would entertain significant 21
doubt that justice would be done absent recusal.” United States 22
v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal quotations 23
and alterations omitted). The pertinent trigger for recusal is 24
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the “appearance of partiality,” Chase Manhattan Bank v. 1
Affiliated FM Ins. Co., 343 F.3d 120, 128-30 (2d Cir. 2003), and 2
a denial of a motion to recuse is reviewed for abuse of 3
discretion. Id. at 126. 4
Appellants argue that the fact that Judge Mordue recused 5
himself from matters involving Sheriff Walsh in 2007 and 2009, 6
see Leader v. Onondaga County, No. 09-cv-0493 (NAM/DEP), 2009 7
U.S. Dist. LEXIS 39296 (N.D.N.Y. 2009), citing a long 8
relationship between the two, compels the conclusion that Judge 9
Mordue should have recused himself from this litigation. We 10
disagree. 11
While at one time there may have been a close relationship 12
between Sheriff Walsh and Judge Mordue, it is undisputed that 13
Judge Mordue, at the time of the instant litigation, had not seen 14
or spoken to Walsh since March 2005. This fact, absent other 15
details about the relationship, negates any inference of 16
partiality. See Independent Order of Foresters v. Donald, Lufkin 17
& Jenrette, Ind., 157 F.3d 933, 945 (2d Cir. 1998) (passage of 18
time negates inference of partiality). 19
d) Unsealing the Record 20
Much of this opinion refers at critical points to parts of 21
the record that have been sealed. Because of the importance of 22
the sealed material to our disposition of this matter, we order 23
that the entire record on appeal be unsealed. See Joy v. North, 24
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692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by parties 1
moving for, or opposing, summary judgment should not remain under 2
seal absent the most compelling reasons.”); accord Stern, 131 3
F.3d at 307 (same). 4
CONCLUSION 5
For the foregoing reasons, the judgment of the district 6
court is affirmed. 7
8
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