Penz v. Fields

Background

Wallesca Penz sued Superintendent Leroy Fields under 42 U.S.C. § 1983, a statute that allows claims against state officials for violating federal rights. Penz alleged that Fields violated her Fourteenth Amendment right to be free from gender-based discrimination by retaliating against her for filing an earlier lawsuit alleging sexual harassment by Fishkill Lieutenant Al Washer.

Penz claimed that Fields retaliated by requiring her to undergo an Employee Health Services examination before returning to work and by refusing to allow her to return on light duty. She also argued on summary judgment that Fields failed to adequately investigate her sexual-harassment complaints.

Penz had been on workers’ compensation leave after an inmate attacked her and injured her neck, back, and knee. A state-retained physician later determined that she was unfit to perform the essential duties of a correction officer. DOCCS’s human-resources evidence stated that Central Office Personnel, rather than a facility superintendent, decided whether an employee returning after extended leave needed an examination and whether the employee qualified for light duty. Penz disputed that account and testified that Fields told her he had decided to require the examination.

Summary-judgment standard

Summary judgment is appropriate when the evidence shows that no genuine dispute exists about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. The court must view the evidence in favor of the nonmoving party, but unsupported assertions and evidence that would not allow a reasonable jury to rule for that party are insufficient.

Personal involvement

Fields argued that he could not be liable because he was not personally involved in the alleged retaliation. He relied on evidence that he was on leave when Penz underwent the examination, later retired, and lacked authority over return-to-work decisions after lengthy medical leave.

The court rejected summary judgment on that ground. Although Penz’s declaration conflicted with her deposition testimony, her testimony provided some evidence that Fields participated in the decisions. The court stated that it could not resolve witness credibility on summary judgment. Penz therefore created a triable factual issue about whether Fields was involved.

Retaliation claim

The court nevertheless granted summary judgment on the retaliation claim. A retaliation claim under the Fourteenth Amendment and § 1983 requires evidence that the plaintiff engaged in protected activity, the employer knew about it, the employer took materially adverse action, and the protected activity caused that action. After an employer offers a legitimate, non-retaliatory reason, the plaintiff must provide evidence from which a reasonable jury could find that retaliation was the but-for cause—meaning the action would not have occurred without the retaliatory motive.

The court assumed, without deciding, that Penz had established an initial retaliation case. It found that Fields had offered legitimate reasons for the challenged actions. The evidence attributed the examination requirement to Penz’s lengthy absence, her physician’s “fair” prognosis, and the physically demanding duties of a correction officer. The evidence also stated that Penz was sixty-five percent disabled and therefore did not qualify for light duty under DOCCS’s requirements, and that the examination found her unfit for the essential duties of a correction officer.

The court concluded that Penz’s evidence did not support a reasonable finding that those explanations were a pretext for retaliation. Her lack of personal knowledge of the DOCCS policy did not overcome sworn testimony describing the policy. Her prior-experience argument was undermined by evidence that she had undergone a medical examination after an earlier work-related injury. Her comparison to C.O. Joel Feijoo relied on what Feijoo allegedly told her, which the court treated as inadmissible hearsay for purposes of summary judgment.

The court also held that an alleged failure to investigate the sexual-harassment complaints was not an adverse employment action when the alleged retaliation was for filing those same complaints. The court stated that a failure to investigate could qualify only if it were retaliation for a separate protected act.

Disposition

The court granted Fields’s motion for summary judgment. It dismissed Penz’s retaliation claim, directed the clerk to terminate the motion, and ordered the case closed. The opinion does not state that the dismissal was with or without prejudice.