*1 426 rаised, actually liti- clearly ecution was estoppel under of collateral application in the State gated,” “actually decided” follows: law as
the common attorney Leather’s at that hearing. court (1) must proceedings of both the issues might what be con- hearing did mention (2) identical, issues the relevant prosecution argu- strued as a selective actually litigated .and been] have [must passing, But he did so at most ment. (3) prior proceeding, in the decided certainly explicitly, not his op- “full and fair have been must there Moreover, cannot closing argument. we litigation of the issues portunity” for necessarily re- say that the Justice Court (4) the is- proceeding, prior in the (assuming that it was jected argument necessary sup- have [must been] sues made), absolutely no for the court set forth final on the judgment a valid and port findings point on this merits. Finally, the defendants con- conviction. added); see also Doe (emphasis Id. at 368 that no the district court ceded before Cir.1998) 79 Pfrommer, v. pre- prosecution evidence of selective in a case the four-factor test (applying by state criminal sented Leather his law); Restatement involving New York circumstances, we hold trial. Under the (1980) (Second) § (setting Judgments clearly was not raised the issue test). [more- same “The burden forth the counsel or ruled on the State Leather’s ‘on the defendant to demonstrate over] is that this is not a case in court.- It follows rеlitigation whose he seeks that the issue can bar Leather’s estoppel which collateral actually decided in the to foreclose ” § subsequent 1983 suit. Schiro, 510 proceeding.’ U.S. first Dowling v. (quoting 114 S.Ct. CONCLUSION States, 342, 350, United U.S. district court’s dismissal of the The (1990)) (emphasis L.Ed.2d § Its plaintiffs 1983 claim was erroneous. added). therefore and the judgment is VACATED narrow- estoppel is thus both Collateral proceedings REMANDED for con- case is judicata. than er and broader res Unlike opinion. sistent with this judicata, estoppel any collateral bars res in a litigated that was raised and issue subsequently
prior proceeding being from different, parallel proceed- in a
relitigated
ing, provided proceeding that the first of- litigant opportuni- a full and fair
fered In contrast ty litigate the issue. Cynthia RICHARDSON, A. however, estop- preclusion, claim collateral Plaintiff-Appellant, pel prevent litigant does not from rais- proceeding, an issue that he ing, a later DEPARTMENT NEW YORK STATE have, not, in the could but did raise first SERVICE, Au OF CORRECTIONAL result, party, even if a proceeding. As Facility, Defen burn Correctional Leather, specific like could have raised a dant-Appellee. prosecution pri- his defense—selective —in Docket No. 98-7110. preclusion based prosecution, or criminal grounds collateral does not lie estoppel Appeals, United States Court of actually litigat- unless the issue was indeed Second Circuit. ed. Argued Sept. case, therefore, in this question The 16, 1999. Decidеd June prose- not the issue of selective whether or actually litigated in the State cution was record, we can- proceeding.
court On question pros- that the of selective say
MESKILL, Judge: Circuit Cynthia A. Richard- Plaintiff-appellant (Richardson) from an order appeals son for the States District Court the United J., York, Scullin, District of New Northern judgment to defendant- granting Department New York State appellee the (DOCS). Richard- Service of Correctional for- son, female and an African-American brought un- employee, claims mer DOCS Rights Act Title VII of the Civil der 2000e-2(a)(l), 3(a), § 42 U.S.C. seq., alleging § et Exec. L. New York subjected racially to a hostile that she was facilities at the DOCS work environment that she was retali- where worked complained about against when she ated remedy that and filed a lawsuit to discrimi- summary judgment granting nation. hostile Richardson’s Title VII environ- (1) claim, court the district concluded ment true, allegations, even if that Richardson’s law insufficient to a matter of were as hostile environ- establish an actionable (2) ment, if that even the environment hostile, sufficiently no question that environ- imputing basis existed employer. to her York, 797527, at New 1997 WL State of 1997). (N.D.N.Y. The dis- *6-6 Dec. *7 granted DOCS trict court also on Richardson’s Title VII retali- judgment claim, determining that Richardson ation evidence sufficient to es- present failed to (Han- Peebles, Syracuse, N.Y. E. David employ- took adverse tablish that DOCS Estabrook, NY, of coun- Syracuse, cock & a result of her action her as sel), Appellant. for protected activity. in Id. having engaged Finally, granted *7. the district court Tuczinski, Attor- Assistant Marlene O. to dismiss Richardson’s DOCS’s motion York, General, Albany, ney State of New state law claims on Eleventh Amendment (Dennis Vacco, Attorney N.Y. General C. objection that Richardson’s grounds, over York, Schiff, Deputy Peter H. So- of New its Eleventh Amendment DOCS waived General, Crary, Assistant licitor Peter' G. de- immunity it failed to raise the when York, General, Al- Attorney State of New at *1 n. 1. We in answer. Id. fense NY, counsel), bany, Appellee. on Rich- ruling the district court’s affirm as- law claims on two ardson’s state WINTER, Judge, Chief Before: claims, Title VII retaliation pects her LEVAL, Judges. MESKILL and Circuit on the and remand Title VII but we vacate two environment claim part in hostile work Judge concurs Chief WINTER claim. aspects of her retaliation separate opinion. in part and dissents BACKGROUND dent occurred on Halloween 1990 when co-worker, Rita Campagnola, said to employed by Richardson was DOCS Richardson and something others to the until from 1988 1994 and worked at two effect you that “all spooks have a nice separate DOCS facilities that time during Halloween.” perceived Richardson period. purposes For the of the summary “spooks” the word derogato- used as a motion, both DOCS and the dis- ry term for Black people, and recalled that accepted trict court Richardson’s factual her co-workers all turned to look at her allegations as true. allеgations Her con- when the remark was made. The fourth cerning facility each are in turn described and fifth incidents occurred during a train- below.
ing seminar November 1990 when Rich- A. The Auburn Correctional Facility co-worker, Greene, ardson’s Bob repeated- ly made comments concerning “Arnold Richardson was hired in De- DOCS Schwarzenigger,” and another co-worker cember 1988 as a calculations clerk at the commented that an unidentified Caucasian (ACF) Facility Auburn Correctional had “some nerve bringing his brown- there until July worked 1992 when she skinned party.” wife to the took a medical leave of absence. Richard- alleges son approxi- while at ACF complaints Richardson’s about in- these mately ten incidents combined to create a prompted cidents the DOCS Affirmative racially hostile work environment that had (the AAO”) Action Office “DOCS com- “mental, physical” emotional and effects on investigation mence an in late To 1990. ultimately and that culminated end, employee AAO Denia Van medical leave she July commenced on (Van Houter) Houter looked into the “spooks,” “Arnold Schwarzenigger” and The first incident occurred February “brown-skinned wife” incidents. in- After Richardson when attended a DOCS individuals, terviewing eight Van Houter training session on management. stress prepared a report written that concluded session, instructor, At Father that the in question incidents occurred as Enright, James offered a hypothetical alleged, Richardson although “the (presumably an example of a stressful intent of appeared the comments” “to be situation) that racially Richardson deemed humorous, rather pur- than malicious insensitive because it featured local Afri- poses,” “[a]ll interviewees except complain- family can-American and was at a set local appears ] to lack sensi- ant cultural/racial bar frequented by African-Americans. tivity.” When objected example, to the Van Houter further noted that Enright Father said to the ef- something December 1990 visit to ACF she was “okay fect that well take the situa- same *8 “verbally simply [sic] attached because” tion, setting, different guys.” three black she a “was Black female.” When asked at complaints Richardson’s led to meet- two deposition her about the experience, Van ings with supervisors to the inci- discuss Houter telling recalled her supervisor “I dent ultimately and Richardson received a just had through a meeting been that re- apology written from Father Enright. minded me of what it must have like been The second incident in March occurred for blacks in the south might who have supervisor, Cuff, a Mary when stated lynched. been I felt it was a lynching like in presence Richardson’s Afri- certain meeting just that I through.” had been can-Americans who were in suspects a recent murder looked like “apes ba- Van Houter recommended DOCS boons.” Richardson’s supervi- immеdiate a institute “Cultural Training” Awareness sor, Gardner, Debra present was and program specifically tailored for ACF laughed at the staff, comment. The third inci- suggestion and her was endorsed to DOCS May in 1992 letter Walker, incident a ACF, this Hans of Superintendent Thpmas who re- Coughlin, superintendent Van Nelson. Ronald deputy, his and promised in which he a letter sponded approved it were if noted Houter Rich- assured and recurrence prevent 60 to within program such produce could being remind- that instructors was ardson program facility-specific days. No sensitivity in all of importance any kind was ed of the program and no ever held action disciplinary No. training programs. early 1994— 1993 or until late instituted or the the co-worker was taken rec- Van Houter’s years after three some session, training who ran supervisors pro- system-wide ommendation—when session from that participants a nor were response in commenced gram derogatory term was that the advised case. in a different court order dangerous. possibly meantime, oc- incidents additional In incident oc- overall The sixth in curred. incident occurred and final The tenth Cuff commented May 1991 when in curred distribut- co-workers 1992 when two June inmates African-American joke, pictures racially on insensitive copy of a ed a dark people are so that “black by saying which includ- Dayvorce,” “Farmer’s titled Richardson anyway.” them you can’t see the word ed, things, use of among other of fear report this out not incident did to ACF complained “nigger.” Richardson her stop talking to would co-workers her Nel- and Deputy Superintendent Walker complained after she they had done as immediately responded DOCS son and incidents. prior who distributed two workers firing the rein- workers were Ultimately the joke. in Octo- incident occurred The seventh success- stated, their union but after an overheard when Richardson ber in admin- challenged terminations fully comment, referring co-worker unidentified of the one grievance proceedings; istrative Richardson, didn’t know that he supervisory promoted workers any light-skinned niggers” “there were re- her return. further position upon reported working at ACF. Richardson Walker wrote Superintendent sponse, as well as to DOCS AAO to the comment all memorandum, attached to which was does indi- The supervisor. her record July paychecks, employees’ ACF response taken in any action was cate that prohib- plainly he stated which complaint. to the comments racially insensitive ited in Febru- incident occurred The eighth violat- employees punish those who would an unidentified co-worker ary 1992 when policy. ed that The ninth “nigger.”1 called Richardson emotional stress claims that Richardson April during occurred incident by racial harassment forced when, to an response caused training session July of absence take the leave how to address question instructor’s on that December re- leave explained that he While co-worker inmates a charges filed discrimination Richardson Richard- ferred to them “Buckwheat.” Hu- New York State Division with the and other that the instructors alleges son (N.Y.SDHR) Equal Rights man the comment laughed attendees Commission Employment Opportunity that, protests, instructors despite (EEOC). work returned to that use advise the class failed to *9 contends, time, she August 1993 which could in be derogatory fact term was the discrimination continued. complained about Richardson dangerous. by by and was sup- refuted DOCS addressed not Although failed either to Richardson it we will consider court. such opposi- the district As allegation in port in affidavit her this forming for basis among those incidents summary judgment motion tion to DOCS's brief, purported hostile environment allega- appellate Richardson's her mention it in ¡n supplemental claim. complaint, her tion /was Cayuga
B. The Facility Correctional incident the CCF Superintendent who declined to investigate because the inci- When Richardson returned from her dent did not occur in the workplace. On 15, 1993, leave of August absence on 19, April 1995, Richardson’s counsel noti- assigned to work as a stores clerk at fied that plaintiff DOCS claimed to commissary be of a different prison, the experiencing “ongoing racial (CCF). Cayuga Correctional harassment” Facility In and requested steps contrast to her position, ACF taken to halt Richardson’s it. position new CCF brought her into close proximity prison to the population. Rich- Deposition notices in Richardson’s law- ardson contends at CCF she was suit June, were served early 1995. The again race, harassed because of her following incidents all occurred in June furthermore was retaliated 1995: Richardson’s car was scratched in having complained about discrimina- lot; the parking she found hair her food tion she encountered at ACF. For the occasions; on four she overheard co-work- part, most both DOCS and the district inquire ers why she just “wouldn’t go work court accepted Richardson’s CCF factual else;” somewhere she had other co-work- allegations true for purposes of the ers tell her that “we are not crazy ones summary judgment motion and they are here;” she learned that a co-worker had described below. been by warned other co-workers not to First, 1993, in August one of Richard- talk to Richardson notes; because she took supervisors, Mahunik, son’s James alleged- her file locked, cabinets kept in con- ly divulged Richardson’s home address to prior trast to policy, which interfered with inmates and told an to wary inmate ability work; her to do her and she was Richardson because she had caused a lot of given telephone messages intended for problems had gotten people fired at her. When Richardson met with the Su-
ACF. Richardson informed a program perintendent concerns, discuss he coordinator at CCF and the DOCS AAO expressed the view that since many CCF about this later, incident. year Almost a employees lived near or had relatives at September co-worker Carol Gam- ACF, it might be difficult to “change their said, in ba the presence of Richardson and attitudes.” supervisors, two that “some people will do Richardson also alleged that a
anything for co-worker money,” apparently referring made a “disparaging comment” about Na- Richardson’s lawsuit. Richardson com- Americans; tive plained that Gamba this stated that all about incident and in- alike; Black vestigated inmates look and concluded that and that Richardson Quill had remarked that Jewish only part people overheard “like to conversation hold on to money.” was not their Furthermore, about her. Richardson two not, however, co-workers could called pinpoint “stupid” Richardson when these “ignorant” at least incidents twenty fifteen occurred. times during period. By July 1995 Richardson felt she had October Richardson found “no alternative” but take a medical leave horse manure in her parking spot, al- of “in absence order to avoid suffering though the lot was fenced and ordinarily further emotional distress and mental an- would not have horse traffic. Richardson guish.” provided medical doc- report did not this incident to anyone. umentation to justify her absence
After Aрril 12, 1995, work on period July while rid- from 1995 through January ing a 1, 1996, commuter bus along co-workers but failed to respond to DOCS’s supervisor, and a request Richardson was struck that she update documentation the head a rubber band fired justify a co- from January absence worker, *10 reported Gamba. Richardson 1996 light forward. In of her failure to 436 employ conditions, or terms, privileges her for satisfactory explanation
provide race, individual’s ment, of such because DOCS, on relying absence, unexcused 42 origin.” sex, national color, or religion, bar- collective governing the provision Here, 2000e-2(a)(l). Richardson § ab- U.S.C. covering unexcused agreement gaining environ work a “hostile under proceeds re- to have Richardson sences, deemed her to estab requires which theory, ment” 15, Richardson January 1996. as of signed permeated (1) was “workplace that lish amounted actions that DOCS’s claims that discriminatory intimidation with in ret- undertaken retaliatory termination to alter or sufficiently pervasive severe dis- about the complaints for ribution environment, and work of [her] conditions suffered. crimination imputing for exists (2) basis specific August on this lawsuit filed Richardson envi the hostile created conduct com- supplemental filed a 22, and 1994 v. Schwapp employer.” to the ronment discovery, After 1996. June plaint (2d 106, 110 Cir. Avon, F.3d 118 Town of dis- judgment summary for moved omitted); 1997) quotation (citation and internal ap- now and claims missing all res, at 630-31. F.3d 116 Tor judgment court’s from peals motion. granting Environment 1. Hostile DISCUSSION Systems, In v. Harris Forklift court’s the district 295 367, review 126 L.Ed.2d 17, We S.Ct. 114 510 U.S. Dis de novo. case,2 Su summary judgment harassment grant (1993), a sexual 55, F.3d Corp., 157 hostile Elmer Title VII Perkin v. tasio held Court preme is Cir.1998). judgment Summary (2d only where will succeed 61 claim environment no is when “there perva or “severe granted is so properly at issue the conduct “ and material fact any hostile ‘objectively’ as issue an genuine to create sive” as judg to a environment,” is entitled moving party and where ... work or abusive Fed.R.Civ.P. law.” the en perceive[s] a matter “subjectively ment the victim for 21-22, a motion considering 56(c). at Id. When to be abusive.” vironment draw must the court dispute no there is Because 367. 114 S.Ct. all ambi resolve subjectively perceived inferences all factual that Richardson nonmoving party. abusive, of the guities favor hostile environment (2d 625, 630 Pisano, F.3d 116 the envi whether Torres v. here reduces question — U.S. -, denied, Rich Cir.), “objectively” cert. hostile. ronment (1997). 404 563, 139 L.Ed.2d thus be evalu allegations should ardson’s a reasonable whether determine ated to Ra- Environment A. Title VII —Hostile of discrimination target who is person cial Harassment so se working conditions find the would the terms alter as to pervasive vere or for it unlawful VII makes Title the worse.3 employment conditions any indi to discriminate employer 367. S.Ct. 114 id. See “compensation, to the respect vidual one proper as the adopting this standard 3. apply to both standards Generally, the same VII, thosе reject the view of we Title under environment hostile sex-based race-based perspective of to the look courts (noting Torres, See claims. g., a group, e. gender particular ethnic envi evaluating hostile that the standards a "reason- African-American" "reasonable whether are the same claims ronment Arizona, See, Stingley v. (D.Ariz.1992); Harris g., e. Jew.” able F.Supp. based race alleged discrimination v. 428-29 County, 782 sex); Snell Suffolk Co., F.Supp. Paper International 1986) harass (applying sexual Cir. part, 765 (D.Me.), vacated in & n. 12 VII involving Title case law in case recog- we (D.Me.1991). While F.Supp. 1529 harassment). racial support- circuit in this dicta there is nize
437
Hams,
(2d
1295,
Cir.1995);
Torres,
Court
F.3d
Supreme
es
1305
see
a non-exclusive list of factors rel
Appliance
957 F.2d
62
Cir.
of law
fact”
it
and
because
involves “the
1992) (“The
repeated
incidents must be
of a
application
legal
particu
standard to a
continuous;
and
acts
occasional
isolated
lar
facts”.
GAF
v.
Corp. Hey
set of
See
relief.”).
episodes will not merit
(2d Cir.1983).
man,
724 F.2d
737
“isolated,
Although
minor epi
questions
“especially
Such mixed
are
well-
jury
do
sodes of harassment
not merit relief
suited for
determination and sum
VII,” Torres,
631, mary
may
granted only
under Title
F.3d at
when
116
harassment,
single
“even
episode
if
reasonable minds could not differ on the
enough,
severe
can
Greenbеrg,
establish a hostile work
issue.” Mendell v.
environment,”
clear,
Cir.1990)
topic
id. n. 4. Our law
673
(discussing
is
example,
single
“even
incident
context
un
“materiality”
determinations
laws)
sufficiently
(citing
sexual
der
v.
assault
alters
condi
securities
TSC Indus.
438, 450,
employment
and
Northway,
tions of
victim’s
clear
S.Ct.
U.S.
(1976)).
ly
work
Although
creates
abusive
environment”
L.Ed.2d 757
Corp.,
under
VII.
v.
questions may
ripe
Title
Tomka
Seiler
66 such
Pisano,
ing
approach,
such an
see
dard
clear
triers
are not
Torres
makes
of fact
(2d Cir.1997),
gender
we
632-33
be-
determine whether some ethnic or
examining
groups
lieve that
hostile environment
are more thin-skinned than others.
inquiry
largely
perspective
claims from the
of a “reasonable
Such an
would at best concern
person
target
varying
racially
who is the
ac-
ethni-
indeterminate
fluid matters
time,
location,
cally
proper ap-
cording
is
oriented remarks”
current events.
First,
evidence,
proach.
might
argument,
lead
protect
Title VII seeks to
those
It
also
conduct,
targets
supposed group
regarding
that are the
of such
and it
char-
deliberations
undesirable,
perspective,
bystanders
ugly, jury
their
or the
acteristics
even
Second,
speaker,
pertinent.
that is
this stan-
and courtroom scenes.
*12
Id at *5.
district court
threatening.”
the
facts
The
underlying
where
adjudication
the facts are undis-
no
undisputed, that
reached its ultimate conclusion—that
are
automatically mandate
juror
not
the environ-
puted does
reasonаble
could find
rather,
summary
summary judgment;
objectively
by
ment described
appli-
appropriate only where
judgment is
of whether
discriminatory—“regardless
undisputed facts
the
to those
cation of
law
objective
that
applied
the
standard
be
is
reasonably support only one ultimate
will
female,
Afri-
an
an
of
African-American
56(c) (dictat-
conclusion. See Fed.R.Civ.P.
can-American,
a
simply
per-
‘reasonable
must be
ing
summary judgment
that
n. 10.
son.’” Id
genuine
is
issue
granted where “there
no
of
In defense
the district court’s deter-
moving
the
...
any
as to
material fact and
mination,
urges that
principally
judgment
as a matter
party is entitled to
fail
ACF claim must
because
Richardson’s
law”)
added);
Me
(emphasis
see This is
of
was
the harassment she endured
neither
Cir.1998)
(2d
Taylor, 157
F.3d
nor as
as
found
pervasive
as severe
summary judgment
ap-
is
(reflecting that
eases
by
actionable
other
decided
is
only if the evidence
such
propriate
Court,
and
particularly
most
Torres
juror
“compelled
would be
reasonable
Schwapp.
moving party”);
the
accept the view of
Corp.,
F.3d
Lightfoot v. Union Carbide
plaintiff
In
was the first
Schwapp, the
Cir.1997)
(“Summary judg-
by
police
African-American
hired
officer
designed
pierce
pleadings
the
the
Afri-
the defendant town
predestined
flush
those cases that are
out
police
employed
can-American
officer
verdict”).
to result in a directed
during
twenty-month
there
the
du-
entire
employment.
en-
rаtion of his
His hostile
Environment
a. The ACF
claim
vironment
consisted of
total of
evaluating
In
DOCS’s motion
twelve incidents—ten that occurred while
the district
court
summary
town,
employed by
he was
the
and another
law
found
a matter of
that Richardson’s
as
two that
before he
but
occurred
arrived
insufficient to
allegations were
establish
his
during
about which he was made aware
working environment.
actionable hostile
twelve, four
employment. Of the
were
on
generally
The
court
focused
presence
made
his
and two
those
Richardson com
whether
the incidents
“nigger.”
involved
of the
In
use
word
and concluded
plained
“pervasive”
of were
incident,
significant
perhaps
the most
alleged “can
that the slurs and comments
Schwapp
supervisor
spoke
when
with
daily,
commonplace,
not be
con
said
he perceived,
about
harassment
tinuous,
steady barrage
as is re
Schwapp
he
supervisor told
“had
Richardson,
797527, at
quired.”
1997 WL
... at
time all the
understand
one
concluded,
Rather,
al
*4.
the court
“the
in Avon
committed
crimes
blacks”
infrequent,
leged
iso
ACF incidents were
“accept
and that he should
the fact that he
lated,
sporadic” and thus insufficient.
racists
not
‘so
working
The
this conclusion
divid
court reached
” 118
at 112.
sensitive.’
ing
alleged
number of
over
incidents
reversing
grant
district court’s
finding
period,
time
that the
relevant
judgment for
we
the defendant
“time
“aver
gaps” between these incidents
focus on
fre-
exclusively
did
either the
months,”
age[d]
contrasting
fig
(twelve in twenty
quency incidents
alleged
ure with the number of incidents
months),
severity
any
or on the
one
upholding
cases
a claim of hostile work
epithets used
(including
incident
severity
environment.
As to
of the
Id
conduct,
Schwapp’s
any
noted
force of
one incident
merely
the district court
Instead, we viewed the total-
experience).
that “not one
the comments or slurs
alleged
ity of
circumstances and concluded
physically
to have occurred was
“say
that we could not
aas matter of law
VII,
under Title
long
so
the employee
incidents
the[ ]
could not amount to a
subjectively experienced a hostile work en-
claim of hostile work environment.” Id. at
vironment.” Id. at 632.
DOCS may be correct that the conduct
plaintiff
The Torres
complained that her
about which Richardson complains is nei-
supervisor created a hostile
*13
environ
work
ther as pervasive nor as severe as that
by
making crude sexual comments
seen in Torres and Schwapp or other
and overtures and
insulting her race.
cases. But DOCS errs when it assumes
Although we ultimately affirmed the dis
that
those cases establish a baseline.
grant
trict court’s
of summary judgment
“[Tjhere is neither a
‘magic
threshold
(on
ground
that the employer-defen
number’ of harassing incidents
gives
that
dant could not be held liable for its em
rise,
more,
without
to liability as a matter
ployee’s behavior), we held that
plain
law,
of
nor а number of incidents below
produced
tiff had
sufficient evidence to
which a plaintiff fails
aas matter of law to
jury
send to a
her claim that her work
state a claim.” Rodgers, 12
674;
F.3d at
environment was hostile and actionable un
Harris,
see
at
U.S.
pervisor to her a referred as “dumb cunt” spic,” “dumb commented on her Here, a person reasonable could find her anatomy, made sexual innuendos and working conditions if, altered for the worse graphic overtures, sexual and told her to over the course of her three one-half home, “stay go on welfare and collect food year employment: one of supervisors stamps spies” like other out a —made referred to Blacks as “apes or baboons” strong prima facie case of hostile work and stated that African-Americans are “so environment harassment. 116 F.3d at you dark cannot see them anyway,” one 632-33. We “emphatically” rejected the co-worker referred to her as a “light- defendant’s argument that Torres had al skinned nigger,” another “nig- called her leged no more than “a handful of incidents ger,” yet another went out of way his of inappropriate that, behavior as a matter one occasiоn to use the nigger word in her law, of were pervasive” so as to consti presence, others joke circulated a that dis- tute hostile work environment harassment. paraged Blacks and referred to them as at Id. 631. Although agreed we with the “niggers,” while still others used the terms principle “isolated, episodes minor “spooks” and “Buckwheats” refer harassment do not merit relief under Title African-Americans. See Rodgers, 12 F.3d VII,” id., we observed that fact “the at 675 (“Perhaps single no act can more requires the law harassment to be severe quickly ‘alter the employment conditions of pervasive it before can be actionable and create an abusive working environ- does not mean employers are free ment’ than the use an unambiguously from liability all but the egregious most racial epithet such ‘nigger’ by supervi- Torres, of cases.” 631. Rath sor in subordinates.”). the presence of his “ er, we noted that the ‘appalling conduct’ jurors may Reasonable disagree well about alleged in prior cases should not be taken whether these incidents would negatively to ‘mark the boundary of what is action alter the working conditions of a reason- ” Harris, (quoting able.’ Id. 510 U.S. at employee. able But potential for such 367). We summarized that disagreement renders “whenever the harassment is such quali inappropriate. ty quantity employee reasonable would find the conditions her employ We also note that the district court dis- worse, ment altered for the it is actionable counted the Father Enright “spooks” however, cannot, say that record We “to racial animus” infer because Incidents Ac- compels only that result. require draw- “would evidence incidents from those Richard- that the district court cordingly, inference.” we hold ing upon inference mo- *5. as matter of law son, On it concluded WL erred when however, not hostile summary judgment, environment was tion ACF en- Richardson, non-moving party, was law. of Title VII case meaning within the very inferences the benefit titled to rea- rejected. The CCF Environment court Because b.
the district the com- juror could infer sonable conclusion In contrast our hostile, the racially question ments ACF, we with the district agree about those have considered court should allega that Richardson’s court’s conclusion it evaluated light in that when allegations law insufficient as a matter of tions were *14 hostile envi- sufficiency Richardson’s the objectively an hostile to establish that claim. ronment working existed at CCF. Of environment Richard the fifteen incidents about which Further, fo the district court any only three racial complains, have son exclusively “pervasive the on cused almost whatsoever, one and these—that overtones Rich about which ness” of harassment comment disparaging co-worker made a to noting regard complained, ardson Americans, that another oncе about Native only “not one of the com severity that that all of the Black inmates looked alleged to have said ments or slurs occurred Richardson, alike, a once made a remark threatening.” and that third physically was sure, to their 797527, people To “like hold to 1997 at *5 n. 10. be Jewish WL isolated, mild, cannot, evaluating money”—are an factor consider whether standard, objective any whether the under suffice environment is actionable is In physically working environment. complained was create hostile conduct deed, merely only pro an one involves Richardson’s humiliating threatening Harris, may category. 510 at racial The balance utterance. U.S. tected offensive 23, by Supreme But that Richardson not liked 114 367. reflect S.Ct. Hams, may relevant a work environ her CCF co-workers explained Court claim, which is discussed if conduct retaliation may be actionable pervasive as But to sustain Title VII hostile there severe or so below. is cither so must conditions of a reason claim Richardson show working to alter the environment produce From this follows more—she must evidence that she employee. able Id. “isolated, although minor of her proposition that was discriminated because race, merit relief has not Carrero episodes do not and this she done. of harassment Torres, 631, City Housing VII,” Authority, 116 F.3d at v. New 890 under Title York (2d Cir.1989) harassment, 569, if (reiterating 580 single episode “even a enough, complained a hostile work that the conduct of must have severe can establish status). Tomka, environment,” (citing prompted n. 4 66 victim’s id. been 1305). physical well F.3d at Richardson’s Employer Liability 2. at
being directly threatened was never ACF; not endure but a need plaintiff additionally The court reasoned assault be physical or actual threatened if the ACF environment was that even could conclude fore reasonable factfinder claim, support a sufficiently hostile to sum- harassment she endured “severe” mary ap- would have been judgment still within of Title meaning VII. Richardson failed to es- propriate because second element of her claim'— may
A well conclude tablish the factfinder i.e., imputing objectionable specific basis exists ACF was not so environment that created the hostile envi- condi- the conduct negatively as to alter terms and Richardson, the employer. ronment person’s employment. tions of a reasonable
441
*6;
Kracunas,
797527,
88;
Schwapp,
at
see
118 tion.
119 F.3d at
Mur-
1997 WL
see
110; Torres,
ray,
The Court “If the evidence creátes an of fact issue presumed an is abso employer held that employer’s as to whether an is action effec- lutely cases where the harassment liable tively prompt, remedial and supervisor, perpetrated is the victim’s judgment is inappropriate.” Gallagher v. employers may affir although interpose 338, Cir.1998); Delaney, 139 F.3d 348 presumption. mative to rebut that defense see, Kracunas, (hold- g., e. 90 Ellerth, v. Burlington Industries U.S. ing that district court erred in concluding 141 L.Ed.2d 633 that employer’s response, taken four some (1998); Raton, Faragher City v. Boca employer six months after learned of 141 L.Ed.2d U.S. S.Ct. allegations, appropriate as a matter of (1998). contrast, if the harasser is law) Snell, (citing 1104); 782 F.2d at co-worker, will employer victim’s Kotcher, F.2d at 64 (remanding post- is, negligent, if it if it liable bench trial for additional find- “provided either no reasonable avenue for ings employer’s as to reasonableness of complaint knew of harassment but harassment, response noting nothing did about it.” Murray New claims “must be evaluated in of all light *15 College Dentistry, York Univ. circumstances,” including evidence (2d Cir.1995) (citation omitted); 249 “tending supervisors to indicate” that “at see Faragher, (noting least tolerated” their subordinate’s unlaw- general agreement among circuits that conduct). ful harassing negligence governs employer standard lia Here, the court concluded that harassment); bility for co-worker Kracu had Richardson not established that DOCS College, nas v. Iona respond “failed in a to reasonable and Cir.1997) (holding employer may be adequate manner to ... each inci- of the of nonsupervisory liable for harassment Richardson, reported.” dents [she] if personnel provide it a reason “failed WL at *6. In regard, the court knew, complaint able avenue for or if it investiga- found that DOCS “conducted in cаre the exercise reasonable should incidents, reported tions into the attached known, yet have about harassment to employee paychecks reminders failed to take ac appropriate remedial tolerated, would be ... harassment 1604.11(d) (1998) (hold tion”); § 29 C.F.R immediately fired two co-workers ing employers liable for co-worker harass joke.” Dayvorce’ involved in the ‘Farmer’s (or employer agents ment if “the view, Id. In district court’s “each of supervisory employees) knows or should responses was commensurate [DOCS’s] conduct, have known of the it can unless alleged with the of the inci- seriousness show it appropri took immediate and dent.” Id. action”). ate corrective It responded
Of the twelve ACF incidents is true DOCS some about complains, complaints. example, which Richardson ten For Richardson’s by were committed than apology co-workers rather Richardson received written these, supervisors. report Of from after Enright Richardson Father his comments session; supervisor, training ed all but one to either she received a AAO, both, Coughlin Superintendent DOCS does not letter from dispute that it knew about which her acknowledged them. DOCS he discomfort any thus will liable work how the “Buckwheat” comment han- hostile dled; and, perhaps significantly, environment created Richardson’s co most it it “Farm- workers unless can show that took two workers who distributed the joke er’s terminated im- aрpropriate Dayvorce” immediate remedial ac- were inci remaining The two ACF reported that incident mediately once complains which Richardson dents about (that ultimately rein- were those workers (Cuffs aby supervisor were committed griev- of administrative as a result stated that certain African-Americans statements does not diminish ance proceedings in a murder suspects recent who were response speed and force DOCS’s and that “apes looked like or baboons” conduct). their you dark can’t see people “black are so Nonetheless, were other incidents there Faragher, DOCS anyway”). them Under action, took no which DOCS response absolutely held liable Cuffs would be record, after Richard- if, continued harassment as it from appears conduct (or with immediate complaints. “supervisor We thus believe is a son made Cuff em successively higher) authority over the jurors disagree could reasonable Faragher, 118 at 2292-93. ployee.” S.Ct. so responses were about whether DOCS’s If, here, employee-victim appears prompt” as to “effectively remedial and action, tangible employment no suffered a matter of liability as shield DOCS from prevail with an DOCS would able light particularly of Van law. This is so it if could establish affirmative defense 1990. investigation of ACF late Houter’s (1) care it reasonable both that “exercised Van Houter likened the environment ... prevent promptly any and correct during investigation experienced ACF (2) behavior,” and harassing “lynching,” “[a]ll to a and concluded that “unreasonably advantage failed to take except complainant! appears ] interviewees any preventive opportunities or corrective sensitivity.” to lack Van cultural/racial or to avoid harm oth provided [DOCS] conduct recommended that DOCS Houter Faragher Id. at and Bur erwise.” Training” seminar a “Cultural Awareness lington decided after the district *16 at to conduct such offered ACF Court, in this This court’s decision case. days if program sixty given within training review, must deciding in case on direct Despite so. rec- authority the to do this as at time apply the law it exists the of our by Van Houter—DOCS’s ommendation review, Harper Virginia Dep’t v. see of investigator—no Action own Affirmative 86, 90, 2510, Taxation, 509 U.S. approximately training such until occurred (1993); 74 Whitney Empire 125 L.Ed.2d later, years an interval in which three Shield, & 106 Blue Cross Blue F.3d the incidents oc- some of more severe Cir.1997) (vacating 477-78 and re may a close question curred. While the in light for in of manding reconsideration one, court we believe erred law). tervening change in sweeping when it reached conclusion part Cuffs two comments were of that that De- “there was no evidence at larger hostile work environment ACF of respond in a fendant failed to reasonable It is complains. Richardson clear which of inсi- adequate manner to each if summary that is not entitled to ACF,” by the Plaintiff reported dents at question liability on the of for of and that evidence shows that each “[t]he co-workers, it harassment her cannot responses was commensu- the Defendant’s summary judgment entitled to on the alleged rate with the seriousness question liability for harassment her Richardson, 1997 WL incident.” if, above, supervisor. For as we found may at conclude that *5. A factfinder well jurors could that reasonable conclude ad- responses were reasonable and DOCS’s response DOCS’s to Richardson’s com- however, cannot, say as a equate. We inadequate, plaints were unreasonable law matter of the record evidence DOCS cannot as a matter assert Accordingly, compels result. it care” under law “exercised reasonable summary judgment dispute should not have been Faragher. any Nor is there advantage took of all avenues granted ground. on Richardson this
443 ACF made to her. There no complaint disagreement available is that Richard- Faragher Accordingly, at 2293. son engaged protected See activity when she not' judg- complained supervisors DOCS was entitled about harass- ment, question liability her employer filed charge EEOC and filed her at Gallagher, the hostile work environment ACF. lawsuit. at See 349. Rather, granting We reverse court’s order de- the dispute centers on whether fendant’s motion remand with instruc- subjected Richardson was to any adverse the, deny tions to motion. and disadvantaging employment actions
and,
so,
connection,
if
what
if any,
causal
B. Title VII—Retaliation
exists between those
pro-
actions and her
tected activities. Richardson claims she
provides
Title
it
be an
VII
“shall
was retaliated
against
separate
four
employment practice
unlawful
an' em-
ways and we evaluate
in turn.
each
ployer
against any of
to discriminate
his
...
employees
employee]
because [such
1.
Revieres
Performance
any
has
opposed
practice made
unlaw-
alleges
Richardson
that she was
practice by
ful
42
subchapter.”
U.S.C.
when,
first
against
retaliated
1990
2000e-3(a).
after
§
Richardson contends that
complaining
harassment,
about racial
provision by
DOCS violated this
retaliating
received two reviews that
her per
deemed
for complaining
about and fil-
“average”
formance
rather
than “excel
ing
concerning
charges
the harassment she
agree
lent.” We
with the district court
have
claims to
suffered ACF.
that Richardson failed to
establish
We evaluate retaliation claims
question
reviews
constituted an adverse
shifting
under the burden
rules established
or disadvantaging employment decision as
Supreme
by the
Court
McDonnell
required
under
prong
the second
of the
Green,
Douglas v.
U.S.
S.Ct.
prima
retaliation
case.
facie
(1973).
Quinn,
L.Ed.2d
See
matter,
As an initial
as the district court
In the context of a
concluded, the evaluations
rated
summary judgment,
plain
motion for
“average,” not
average.
as below
More
tiff must first demonstrate a prima facie
however,
importantly,
provided
retaliation,
*17
case of
after which the defen
specific
no
to
evidence as what the evalua
dant
pointing
has the
of
burden
evi
actually said,
why
tions
how
or
legitimate,
that there
a
dence
was
nonreta-
deserved better. The record does
con
liatory
complained
reason for the
of action.
tain
of
copies
the evaluations or otherwise
burden,
If the defendant meets its
unwarranted,
they
explain how
and
plaintiff must
that
there
demonstrate
is
when
deposition
asked
her
these
about
potential
sufficient
proof for a reasonable
evaluations,
responded
Richardson
that
jury
proffered legitimate
to find the
reason
she could not
evalua
“remember
exact
merely
pretext
impermissible
a
for
retalia
any
specifics.”
tions or
of the
The conclu-
Gallagher,
tion.
the transfer. Because DOCS has not met tion” for the purposes of a retaliation its of production, burden summary judg- when, claim as Richardson alleges, her may ment granted dismissing Rich- employer allows her co-workers to harass retaliatory ardson’s transfer claim. her because she engaged in protected ac tivity. Compare Gunnell v. Utah Valley 3. Retaliatory Harassment at CCF State College, (10th 152 F.3d
Richardson also contends that DOCS re- Cir.1998) (“[C]o-worker hostility or retalia taliated against her of, when it was aware tory harassment, if severe, sufficiently to, but failed to respond a pattern of retal- may constitute employment ‘adverse ac iatory acts waged against by supervi- her tion’ for purposes of a claim.”), retaliation sors and co-workers at CCF. In particular, Indiana, Knox v. State 93 F.3d alleges personnel CCF (7th Cir.1996) (“No one would were aware of and harassed her because of question the retaliatory effect of many ac protected activities in which she en- tions that put complainant in a more gaged in her attempts fight the harass- unfriendly working environment.... perсeived at ACF. According to Nothing why indicates a different form of Richardson, DOCS’s failure to stop that namely, retaliating against a retaliation — harassment constitutes retaliation prohib- complainant by permitting her fellow em by ited Title VII. ployees to punish her invoking Although Richardson raised theory this rights under Title VII —does not fall with of liability opposition to DOCS’s motion in statute.”), with Manning v. Metro for summary judgment, the district court politan Co., Ins. Life did not (8th address the' argument in opinion Cir.1997) its (rejecting theory and in dismissing claim, Richardson’s retaliation stead requiring “tangible change in duties and DOCS has failed address theory or working conditions that constituted a in its briefing this Court. As discussed material employment disadvantage”), and below, hold that we Richardson established Munday v. Waste Management North must light also viewed contempo Although arguing that Richardson failed to testimony, case, raneous prima elicited make out DOCS and what the dissent facie actually pages found may ten reveals is that transcript, later in the have had legitimate, position non-retaliatory reasons keyboard specialist for reas- did, for which she signing Richardson in manner g., it e. qualified was being was advertised when she she asked to be apparently transferred and reported for work at CCF. We believe reassigned position available evidence, thin, sufficient, albeit at least at at that proffered time. Had DOCS even one prima stage, permit an inference facie suсh support reason may it motion reassignment that the to the less desirable prevailed well have and steered clear of the position was an employment adverse action supposed "Catch-22" envisioned the dis- response taken in prior par to Richardson’s reason, sent. proffered Once DOCS such a ticipation protected activity. plaintiffs A *19 Richardson would have faced the often ardu- prima burden at the stage is not onerous. facie ous proving task proffered reason See Copy Chambers v. Corp., TRM Ctrs. 43 pretext was merely for retaliation and that 29, (2d 1994)’("The F.3d 37 Cir. burden of the reassignment prompted by imper- an proof permit that must be employ met an missible But moving motive. in for plaintiff ment-discrimination to survive a proffer DOCS chose single not to summary judgment prima motion at the facie transfer, non-retaliatory reason for and it
stage (citation, de is minimis." quota internal is not role our to do so now on DOCS’s tion omitted)). marks and alteration behalf. 446 (4th Cir.1997) 239, challenged employment action reaches
America, 243 126 F.3d ” Wanamaker, ig 108 F.3d employer’s instructions level of ‘adverse.’ (holding in engaged who at spy employee nore or activity “ad do constitute protected An a mate employee could suffer evidence action” absent employment verse and rially change adverse in the terms terms, or benefits of em conditions if employment her em conditions affected), adversely cert. ployment knew to take action ployer about but failed — U.S. -, 1053, denied, 140 retaliatory inflicted to abate harassment (1998), and v. East 116 Mattern L.Ed.2d by employer as an will co-workers. Just (5th Co., 702, F.3d 707 104 man Kodak racially or negligence be liable for a Cir.) employer action the na (requiring sexually hostile work environment created employment decision” “ultimate ture of an by if the employer a victim’s co-workers concerning “hiring, granting such as those (or compensating”), reasonably about should know knows leave, and discharging, promoting, about) — that harassment but fails to take denied, -, t. U.S. cer action, Burling appropriately remedial see (1997). 336, 260 118 139 L.Ed.2d S.Ct. Industries, 2267; ton 118 S.Ct. at Kracu adopt the view that unchecked We 89, 119 too College, nas v. Iona F.3d so harassment, if co-worker retaliatory suffi will employer be held accountable severe, ciently may constitute adverse em retaliatory allowing co-worker harassment satisfy action as to the second ployment so if it about that occur knows harassment prima
prong of the retaliation case. facie Knox, stop but fails to act to it. See 93 our prior This is consistent with conclusion (holding at 1334 that “there is noth F.3d addressing constitutes cases what “adverse ing principle to indicate that of em employment action.” responsibility ployer [involved in direct recognized that
We have
Title
by
claims of harassment
does
cо-workers]
employment
does not “define adverse
VII
equally
not extend
other Title VII
job
solely
action
terms of
termination or
claims, such
a claim of unlawful
retalia
benefits,
wages
reduced
and that less
tion,”
approving jury
instruction
may
flagrant reprisals by employers
in
can
ac
employers
be liable for co-worker
deed
adverse.”
v. Colum
Wanamaker
they
when
know
and fail to
tions
about
Co.,
466
Rope
bian
108
Cir.
conduct); Gunnell,
correct
the offensive
“
1997).
time, however,
At the same
‘not
(holding
employer
152 F.3d
every
matter
unpleasant
short
[dis
by
will
liable for
inflicted
harassment
charge
creates a cause of
demotion]
or
(1) supervisory
the victim’s co-workers if
retaliatory
action’
discharge.”
Id.
management personnel
knew about
Derwinski,
(quoting
v.
Welsh
retaliatory
acquiesced
or condoned
(1st
(alteration
Cir.1994))
original).
co-workers,
plaintiffs
harassment
plaintiff may
an “ad
Accordingly,
suffer
(2) supervisory management person
employment
verse
action” if she endures
nel
campaign
orchestrated
co-work
“materially
change in the
adverse
terms
harassment).
er
employment.”
conditions of
See Tor
Here,
Pisano,
alleged
(quoting
res v.
lawsuit. Proof of a causal connection can C. Eleventh Amendment “directly through established evidence argument Richardson’s final retaliatory against animus directed appeаl challenges the district court’s deci (cita DeCintio, plaintiff,” 821 F.2d at sion against to dismiss her state law claims omitted), “indirectly tions by showing DOCS on Eleventh Amendment grounds. protected activity was followed does not contest substance treatment, closely by the discriminatory ruling, of that argues but instead that the ... through other such evidence district court should not have ruled so disparate employees treatment fellow already because the state had waived that conduct,” engaged who similar id. by failing defense to assert it answer. Although Richardson filed the charge EEOC As interpreted, December 1992 the Eleventh January 1994, federal generally prohibits lawsuit she was Amendment5 suits provides: equity, 5. The prosecuted Eleventh Amendment in law or commenced one of the United States Citizens power The Judicial of the United States any shall not construed to extend suit *21 448 implica- overwhelming by such guage or coui't. in federal governments against state no room leave as will the text tions from Hosp. v. & School State See Pennhurst construction.” reasonable other any 106, 89, S.Ct. 104
Halderman, U.S. 465 673, 651, 94 Jordan, 415 v. U.S. Edelman (1984). The Eleventh 67 900, L.Ed.2d 79 (citation (1974) 1347, 662 39 L.Ed.2d S.Ct. au judicial concerned “is Amendment Close, at omitted); 125 F.3d and alteration III of Article power the limits thority and below, failure DOCS’s explained As 39. against brought over actions courts not does in its answer defense the raise 31, York, 125 Newv. Close States.” waiver. unambiguous an such constitute states Cir.1997). the (2d protecting 39 pre Amendment suit, the thе Department Eleventh v. from Motor Co. In Ford of sovereign “(1) 467-68, is 459, each state S.Ct. that 65 supposes Treasury, 323 U.S. (2) that system; (1944), Supreme the entity 347, our federal L.Ed. 89 389 sovereignty of Amendment the nature inherent Eleventh it is held Court an indi explicit suit of an forth amenable and sets policy to be not “declares (cit 36 Id. at such power of judicial consent.” its vidual without on federal limitation 44, Florida, U.S. be 517 issue could v. that the Tribe force” ing compelling Seminole (1996)). Supreme 252 in the 1114, L.Ed.2d time 134 the first 54, 116 S.Ct. raised for later, Edel- “affirm[s] thus thirty years Amendment Some The Eleventh Court. sovereign of held that principle man, Court Supreme fundamental that the “sufficiently judicial au of defense grant Amendment immunity limits Eleventh Pennhurst, jurisdictional at U.S. nature 465 of partakes in Art. III.” thority in the Close, raised F.3d at not be S.Ct. 900; 125 it need see so 98, bar 104 677-78, S.Ct. at 94 U.S. 415 trial court.” 39. reasoning we Indeed, following 1347. immunity is Amendment Eleventh affecting amendment have viewed contrary, absolute, To however. not raised jurisdiction and subject matter our immunity and be may divested state claims dismiss sponte to sua the issue ways: one of two court in federal into haled Atlantic Health York State. New sovereign abrogate the (1) may Congress 1, 4 2 F.3d Googins, v. Trust care Benefits enactment, statutory through a immunity juris Cir.1993). decidedly Despite the v. Fitzpatrick Close, (citing at 36 Eleventh character dictional 2666, 452-56, 445, 96 S.Ct. Bitzer, 427 U.S. argues Amendment, Richardson (2) may (1976)), a state 614 49 L.Ed.2d in its the issue to raise failure DOCS’s sued agree immunity waive its a waiver. constitutes answer (citing court, id. Atascadero see fеderal cases some is correct 238, 234, Scanlon, U.S. 473 Hosp. State Amend- the Eleventh have characterized (1985)). 3142, 171 L.Ed.2d 105 S.Ct. something less than presenting ment as the sec our attention Richardson draws mat- initial bar. As jurisdictional pure York New method, arguing ond bar, the jurisdictional ter, true unlike a immunity Amendment waived its Eleventh Atascadero, waived. See may be defense in its raise the issue failed when DOCS Addition- 241, 3142. 105 S.Ct. 473 U.S. answer. suggested has Court Supreme ally, the the issue obligated raise not that it is determining whether test “The Board Patsy v. See motion. its own fed immunity from has waived a State n. S.Ct. Regents, U.S. one.” stringent a jurisdiction eral-court (1981) (reflecting 73 L.Ed.2d Atascadero, 473 U.S. Amendment Eleventh found waiver is Accordingly, it must “that in the sense jurisdictional lan- express “by the most where stated Const, XI. amend. State, U.S. Subjects Citizens of another Foreign State. any
449
raised and
decided
this Court on its Mascheroni v.
Regents,
Board
28 F.3d
motion,”
own
choosing
not to rule
(10th
on 1554,
Cir.1994).
1558-59
Indeed, the
immunity grounds,
leaving
but
the state Patsy Court explicitly permitted the state
free to
remand);
raise the defense on
but
to raise the
remand,
defense on
even
519-20, 529,
(Pow
see id. at
the district environment, tarily chose Auburn. the CCF on based the claim it dismissed the extent reverse but we un- undisputed facts are these That environment. ACF based claim deposition own by Richardson’s derlined retaliation Title VII Richardson’s On testimony: *23 of the district decision claim, the affirm we [during leave] that And time at Q: the claims it dismissed the extent to court attorney, your say to that it fair is and con- reviews performance on based Depart- Satter, the contacted Mimi grant the but reverse discharge, structive to see Services ment Correctional of prem- claims on the summary judgment of at an- found could position if a to CCF transfer Richardson’s upon ised you facility, correctional other she retaliatory harassment the upon and Auburn? than know, other place a We there. once suffered have claims to Yes. A: of dismissal court’s district the affirm Eleventh on claims law state Richardson’s judgment The grounds.
Amendment a was, come there did question The Q the to is remanded the case vacated advised you were time con- proceedings further for court available position a there was opinion. sistent with Facility? Cayuga Correctional at you concurring in Yes. Judge, A WINTER, Chief part: dissenting part you told? what And Q except opinion majority in the I concur go I didn’t have told that I was A of grant the the reversal of awas Auburn, that there back claim retaliation Richardson’s Correc- Cayuga at available position transfer. upon her far it was based as so tional. dissent. that, respectfully I toAs Cay- at position accept that you Did Q supporting a record colleagues posit My uga? that, after finding factual a Yes, I did. A NYDOCS cоmplaint, a filed discrimination volun- position accept that you Did Q de- a her to less involuntarily transferred tarily? a retalia- from which transfer a job, sirable Yes, I did. A Actually, inferred. might be tory motive that, filing after however, undisputed it is Richard conclude My colleagues asked for complaint, Richardson the by a trier might be found transfer son’s her the transfer, offered and NYDOCS employment adverse an constitute fact to available, option an then only position the allegation action, relying on it. to take chose not. She take it or the one than desirable job less Cayuga infer- permissible no view, can be there my is caselaw While there at Auburn. facts. from these retaliatory motive ence involuntary an holds that properly quite can be found job a different transfer to Local Pursuant NYDOCS Statement adverse been an to have ¶¶ a trier fact 7.1(f) undisputed (proffering 38-41 Rule see, decision, la Cruz e.g., de transfer) employment Richard- surrounding facts Ad Resources (ad- City Human York v. New 4at Opposition, Submissions son’s 16, Servs., Soc. Dep’t min. & about by NYDOCS mitting provided facts circum Cir.1996), hardly applies it that: transfer) undisputed establish the request to a where, response stances Richardson’s (i) transfer occurred the only offers employer employee, job (ii) position request, whether available, the decision leaving (iii) job time, had available employee. transfer not to position Cayuga accepting option of This decision creates Catch-22 for em-
ployers. Once files employee a discrim-
ination claim requests transfer,
offering aof transfer only open
position seems less employ- adverse to the
ee than denying either the request or or-
dering mandatory transfer. If offering a only job
transfer to the sup- available can
port finding retaliation, surely then
denying ordering can one also support
such a An finding. employee who files a
discrimination claim request for trans-
fer, therefore, will have automatically es- prima
tablished a my facie case under
colleagues’ theory. Because that cannot law,
be the I respectfully dissent on that
one issue. TURNER,
David C. behalf
himself and all similarly others
situated, Plaintiff-Appellant,
GENERAL MOTORS ACCEPTANCE
CORP., Defendant-Appellee.
No. 97-9492.
United States of Appeals, Court
Second Circuit.
Argued Sept. 1998.
Decided June