Lead Opinion
Chiеf Judge WINTER concurs in part and dissents in part in a separate opinion.
Plaintiff-appellant Cynthia A. Richardson (Richardson) appeals from an order of the United States District Court for the Northern District of New York, Scullin, J., granting summary judgment to defendant-appellee the New York State Department of Correctional Service (DOCS). Richardson, an African-American female and former DOCS employee, brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l), 3(a), and New York Exec. L. § 290 et seq., alleging that she was subjected to a racially hostile work environment at the DOCS facilities where she worked and that she was retaliated against when she complained about and filed a lawsuit to remedy that discrimination. In granting summary judgment on Richardson’s Title VII hostile environment claim, the district court concluded (1) that Richardson’s allegations, even if true, were as a matter of law insufficient to establish an actionable hostile environment, and (2) that even if the environment in question were sufficiently hostile, no basis existed for imputing that environment to her employer. Richardson v. State of New York,
Richardson was employed by DOCS from 1988 until 1994 and worked at two separate DOCS facilities during that time period. For the purposes of the summary judgment motion, both DOCS and the district court accepted Richardson’s factual allegations as true. Her allegations concerning each facility are described in turn below.
A. The Auburn Correctional Facility
Richardson was hired by DOCS in December 1988 as a calculations clerk at the Auburn Correctional Facility (ACF) and worked there until July 1992 when she took a medical leave of absence. Richardson alleges that while at ACF approximately ten incidents combined to create a racially hostile work environment that had “mental, emotional and physical” effects on her and that ultimately culminated in the medical leave she commenced on July 16, 1992.
The first incident occurred in February 1989, when Richardson attended a DOCS training session on stress management. At that session, thе instructor, Father James Enright, offered a hypothetical (presumably as an example of a stressful situation) that Richardson deemed racially insensitive because it featured a local African-American family and was set at a local bar frequented by African-Americans. When Richardson objected to the example, Father Enright said something to the effect that “okay well take the same situation, different setting, three black guys.” Richardson’s complaints led to two meetings with supervisors to discuss the incident and Richardson ultimately received a written apology from Father Enright.
The second incident occurred in March 1990 when a supervisor, Mary Cuff, stated in Richardson’s presence that certain African-Americans who were suspects in a recent murder looked like “apes or baboons.” Richardson’s immediate supervisor, Debra Gardner, was present and laughed at the comment. The third incident occurred on Halloween in 1990 when a co-worker, Rita Campagnola, said to Richardson and others something to the effect that “all you spooks have a nice Halloween.” Richardson perceived that the word “spooks” was used as a derogatory term for Black people, and recalled that her co-workers all turned to look at her when the remark was made. The fourth and fifth incidents occurred during a training seminar in November 1990 when Richardson’s co-worker, Bob Greene, repeatedly made comments concerning “Arnold Schwarzenigger,” and another co-worker commented that an unidentified Caucasian had “some nerve bringing his brown-skinned wife to the party.”
Richardson’s complaints about these incidents prompted the DOCS Affirmative Action Office (the “DOCS AAO”) to commence an investigation in late 1990. To this end, DOCS AAO employee Denia Van Houter (Van Houter) looked into the “spooks,” “Arnold Schwarzenigger” and “brown-skinned wife” incidents. After interviewing eight individuals, Van Houter prepared a written report that concluded that the incidents in question occurred as Richardson alleged, and that although “the intent of the comments” appeared “to be for humorous, rather than malicious purposes,” “[a]ll interviewees except complainant ] appears to lack cultural/racial sensitivity.”
Van Houter further noted that at her December 6, 1990 visit to ACF she was “verbally attached [sic] simply because” she “was a Black female.” When asked at her deposition about the experience, Van Houter recalled telling her supervisor “I had just been through a meeting that reminded me of what it must have been like for blacks in the south who might have been lynched. I felt it was like a lynching meeting that I had just bеen through.”
Van Houter recommended that DOCS institute a “Cultural Awareness Training” program specifically tailored for the ACF staff, and her suggestion was endorsed by
In the meantime, additional incidents occurred. The sixth overall incident occurred in May 1991 when Cuff commented on pictures of African-American inmates by saying that “black people are so dark you can’t see them anyway.” Richardson did not report this incident out of fear that her co-workers would stop talking to her as they had done after she complained of prior incidents.
The seventh incident occurred in October 1991 when Richardson overheard an unidentified co-worker comment, referring to Richardson, that he didn’t know that “there were any light-skinned niggers” working at ACF. Richardson reported this comment to the DOCS AAO as well as to her supervisor. The record does not indicate that any action was taken in response to the complaint.
The eighth incident occurred in February 1992 when an unidentified co-worker called Richardson a “nigger.”
The tenth and final incident occurred in June 1992 when two co-workers distributed a copy of a racially insensitive joke, titled “Farmer’s Dayvorce,” which included, among other things, use of the word “nigger.” Richardson complained to ACF Superintendent Walker and Deputy Nelson and DOCS immediately respondеd by firing the two workers who distributed the joke. Ultimately the workers were reinstated, but only after their union successfully challenged the terminations in administrative grievance proceedings; one of the workers was promoted to a supervisory position upon her return. In further response, Superintendent Walker wrote a memorandum, which was attached to all ACF employees’ July 9, 1992 paychecks, in which he plainly stated that DOCS prohibited racially insensitive comments and would punish those employees who violated that policy.
Richardson claims that emotional stress caused by racial harassment forced her to take the leave of absence in July 1992. While on that leave in December 1992, Richardson filed discrimination charges with the New York State Division of Human Rights (N.Y.SDHR) and the Equal Employment Opportunity Commission (EEOC). Richardson returned to work in August 1993 at which time, she contends, the discrimination continued.
When Richardson returned from her leave of absence on August 15, 1993, she was assigned to work as a stores clerk at the commissary of a different prison, the Cayuga Correctional Facility (CCF). In contrast to her ACF position, Richardson’s new CCF position brought her into close proximity to the prison population. Richardson contends that at CCF she was again harassed because of her race, and furthermore was retaliated against for having complained about the discrimination she encountered at ACF. For the most part, both DOCS and the district court accepted Richardson’s CCF factual allegations as true for the purposes of the summary judgment motion and they are described below.
First, in August 1993, one of Richardson’s supervisors, James Mahunik, allegedly divulged Richardson’s home address to inmates and told an inmate to be wary of Richardson because she had caused a lot of problems and had gotten people fired at ACF. Richardson informed a program coordinator at CCF and the DOCS AAO about this incident. Almost a year later, in September 1994, co-worker Carol Gam-ba said, in the presence of Richardson and two supervisors, that “some people will do anything for money,” apparently referring to Richardson’s lawsuit. Richardson complained about this incident and DOCS investigated and concluded that Richardson had overheard only part of a conversation that was not about her. Furthermore, two co-workers called Richardson “stupid” and “ignorant” at least fifteen to twenty times during this period.
In October 1994, Richardson found horse manure in her parking spot, although the lot was fenced in and ordinarily would not have horse traffic. Richardson did not report this incident to anyone.
After work on April 12, 1995, while riding a commuter bus along with co-workers and a supervisor, Richardson was struck in the head by a rubber band fired by a coworker, Gamba. Richardson reported this incident to the CCF Superintendent who declined to investigate because the incident did not occur in the workplace. On April 19, 1995, Richardson’s counsel notified DOCS that plaintiff claimed to be experiencing “ongoing racial harassment” and requested that steps be taken to halt it.
Deposition notices in Richardson’s lawsuit were served in early June, 1995. The following incidents all occurred in June 1995: Richardson’s car was scratched in the parking lot; she found hair in her food on four occasions; she overheard co-workers inquire why she “wouldn’t just go work somewhere else;” she had other co-workers tell her that “we are not the crazy ones here;” she learned that a co-worker had been warned by other co-workers not to talk to Richardson because she took notes; her file cabinets were kept locked, in contrast to prior policy, which interfered with her ability to do her work; and she was not given telephone messages intended for her. When Richardson met with the Superintendent to discuss her concerns, he expressed the view that since many CCF employees lived near or had relatives at ACF, it might be difficult to “change their attitudes.”
Richardson also alleged that a co-worker made a “disparaging comment” about Native Americans; that Gamba stated that all of the Black inmates look alike; and that Quill remarked that Jewish people “like to hold on to their money.” Richardson could not, however, pinpoint when these incidents occurred.
By July 1995 Richardson felt she had “no alternative” but to take a medical leave of absence “in order to avoid suffering further emotional distress and mental anguish.” Richardson provided medical documentation to justify her absence for the period from July 24, 1995 through January 1, 1996, but failed to respond to DOCS’s request that she update the documentation to justify her absence from January 2, 1996 forward. In light of her failure to
Richardson filed this lawsuit on August 22, 1994 and filed a supplemental complaint in June 1996. After discovery, DOCS moved for summary judgment dismissing all claims and Richardson now appeals from the district court’s judgment granting that motion.
DISCUSSION
We review the district court’s grant of summary judgment de novo. Distasio v. Perkin Elmer Corp.,
A. Title VII — Hostile Environment Racial Harassment
Title VII makes it unlawful for an employer to discriminate against any individual with respect to the “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Here, Richardson proceeds under a “hostile work environment” theory, which requires her to establish (1) that the “workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [her] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Schwapp v. Town of Avon,
1. Hostile Environment
In Harris v. Forklift Systems,
We noted in Schiuapp that in order “[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be ‘more than a few isolated incidents of racial enmity.’ ” Schwapp,
Although “isolated, minor episodes of harassment do not merit relief under Title VII,” Torres,
We are cautioned to consider the totality of the circumstances, see Schwapp,
As the Seventh Circuit has observed, “the existence of racial harassment in a hostile work environment involves an application of facts (the specific discriminatory conditions alleged by the plaintiff) to law (the standards governing the existence of racial harassment and hostile work environment discrimination).” Rodgers v. Western-Southern Life Ins. Co.,
a. The ACF Environment
In evaluating DOCS’s motion for summary judgment the district court found as a matter of law that Richardson’s allegations were insufficient to establish an actionable hostile working environment. The district court generally focused on whether the incidents Richardson complained of were “pervasive” and concluded that the slurs and comments alleged “cannot be said to be commonplace, daily, continuous, or a steady barrage as is required.” Richardson,
In defense of the district court’s determination, DOCS principally urges that Richardson’s ACF claim must fail because the harassment she endured was neither as severe nor as pervasive as that found actionable in other eases decided by this Court, most particularly Torres and Schwapp.
In Schwapp, the plaintiff was the first African-American police officer hired by the defendant town and was the only African-American police officer employed there during the entire twenty-month duration of his employment. His hostile environment claim consisted of a total of twelve incidents—ten that оccurred while he was employed by the town, and another two that occurred before he arrived but about which he was made aware during his employment. Of the twelve, four were made in his presence and two of those involved use of the word “nigger.” In perhaps the most significant incident, when Schwapp spoke with a supervisor about the harassment he perceived, the supervisor told Schwapp that he “had to understand that ... at one time all the crimes in Avon were committed by blacks” and that he should “accept the fact that he was working with racists and not be ‘so sensitive.’ ”
In reversing the district court’s grant of summary judgment for the defendant we did not exclusively focus on either the frequency of the incidents (twelve in twenty months), or on the severity of any one incident (including the epithets used or the force of any one incident on Schwapp’s experience). Instead, we viewed the totality of the circumstances and concluded
The Torres plaintiff complained that her supervisor created a hostile work environment by making crude sexual comments and overtures and by insulting her race. Although we ultimately affirmed the district court’s grant of summary judgment (on the ground that the employer-defendant cоuld not be held liable for its employee’s behavior), we held that the plaintiff had produced sufficient evidence to send to a jury her claim that her work environment was hostile and actionable under Title VII. We held that the conduct about which Torres complained — “constant” harassing conduct in which her supervisor referred to her as a “dumb cunt” and a “dumb spic,” commented on her anatomy, made sexual innuendos and graphic sexual overtures, and told her to “stay home, go on welfare and collect food stamps like other spies” — made out a strong prima facie case of hostile work environment harassment.
DOCS may be correct that the conduct about which Richardson complains is neither as pervasive nor as severe as that seen in Torres and Schwapp or other cases. But DOCS errs when it assumes that those cases establish a baseline. “[Tjhere is neither a threshold ‘magic number’ of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Rodgers,
Here, a reasonable person could find her working conditions altered for the worse if, over the course of her three and one-half year employment: one of her supervisors referred to Blacks as “apes or baboons” and stated that African-Americans are “so dark you cannot see them anyway,” one co-worker referred to her as a “light-skinned nigger,” another called her “nigger,” yet another went out of his way on one occasion to use the word nigger in her presence, others circulated a joke that disparaged Blacks and referred to them as “niggers,” while still others used the terms “spooks” and “Buckwheats” to refer to African-Americans. See Rodgers,
We also note that the district court discounted the Father Enright and “spooks”
Further, the district court focused almost exclusively on the “pervasiveness” of the harassment about which Richardson complained, noting with regard to its severity only that “not one of the comments or slurs alleged to have occurred was physically threatening.” Richardson,
A factfinder may well conclude that the ACF environment was not so objectionable as to alter negatively the terms and conditions of a reasonable pеrson’s employment. We cannot, however, say that the record evidence compels only that result. Accordingly, we hold that the district court erred when it concluded as a matter of law that the ACF environment was not hostile within the meaning of Title VII case law.
b. The CCF Environment
In contrast to our conclusion about ACF, we agree with the district court’s conclusion that Richardson’s allegations were insufficient as a matter of law to establish that an objectively hostile working environment existed at CCF. Of the fifteen incidents about which Richardson complains, only three have any racial overtones whatsoever, and these—that one co-worker made a disparaging comment about Native Americans, that another once said that all of the Black inmates looked alike, and that a third once made a remark that Jewish people “like to hold on to their money”—are isolated, mild, and cannot, under any objective standard, suffice to create a hostile working environment. Indeed, only one involves Richardson’s protected racial category. The balance may reflect that Richardson was not liked by her CCF co-workers and may be relevant to her retaliation claim, which is discussed below. But to sustain a Title VII hostile environment claim Richardson must show more—she must produce evidence that she was discriminated against because of her race, and this she has not done. Carrero v. New York City Housing Authority,
2. Employer Liability
The district court reasoned additionally that even if the ACF environment was sufficiently hostile to support a claim, summary judgment still would have been appropriate because Richardson failed to establish the second element of her claim'— i.e., that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Richardson,
The Supreme Court recently held that an employer is presumed absolutely liable in cases where the harassment is perpetrated by the victim’s supervisor, although employers may interpose an affirmative defense to rebut that presumption. Burlington Industries v. Ellerth,
Of the twelve ACF incidents about which Richardson complains, ten were committed by co-workers rather than supervisors. Of these, Richardson reported all but one to either a supervisor, the DOCS AAO, or both, and DOCS does not dispute that it knew about them. DOCS thus will be liable for any hostile work environment created by Richardson’s coworkers unless it can show that it took immediate and appropriate remedial action. Kracunas,
“If the evidence creátes an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate.” Gallagher v. Delaney,
Here, the district court concluded that Richardson had not established that DOCS “failed to respond in a reasonable and adequate manner to ... each of the incidents [she] reported.” Richardson,
It is true that DOCS responded to some of Richardson’s complaints. For example, Richardson received a written apology from Father Enright after his comments in the training session; she received a letter from Superintendent Coughlin in which he acknowledged her discomfort at how the “Buckwheat” comment was handled; and, perhaps most significantly, the two workers who distributed the “Farmer’s Dayvorce” joke were terminated im
Nonetheless, there were other incidents in response to which DOCS took no action, and harassment continued after Richardson made her complaints. We thus believe that reasonable jurors could disagree about whether DOCS’s responses were so “effectively remedial and prompt” as to shield DOCS from liability as a matter of law. This is particularly so in light of Van Houter’s investigation of ACF in late 1990. Van Houter likened the environment she experienced during her ACF investigation to a “lynching,” and concluded that “[a]ll interviewees except complainant! ] appears to lack cultural/racial sensitivity.” Van Houter recommended that DOCS conduct a “Cultural Awareness Training” seminar at ACF and offered to conduct such a training program within sixty days if given the authority to do so. Despite this recommendation by Van Houter—DOCS’s own Affirmative Action investigator—no such training occurred until approximately three years later, an interval in which some of the more severe incidents occurred. While the question may be a close one, we believe the district court erred when it reached the sweeping conclusion that “there was no evidence that the Defendant failed to respond in a reasonable and adequatе manner to each of the incidents reported by the Plaintiff at ACF,” and that “[t]he evidence shows that each of the Defendant’s responses was commensurate with the seriousness of the alleged incident.” Richardson,
The two remaining ACF incidents about which Richardson complains were committed by a supervisor (Cuffs statements that certain African-Americans who were suspects in a recent murder looked like “apes or baboons” and that “black people are so dark you can’t see them anyway”). Under Faragher, DOCS would be held absolutely liable for Cuffs conduct if, as it appears from the record, Cuff is a “supervisor with immediate (or successively higher) authority over the employee.” Faragher,
Cuffs two comments were part of the larger hostile work environment at ACF of which Richardson complains. It is clear that if DOCS is not entitled to summary judgment on the question of liability for harassment by her co-workers, it cannot be entitled to summary judgment on the question of liability for harassment by her supervisor. For if, as we found above, reasonable jurors could conclude that DOCS’s response to Richardson’s complaints were unreasonable and inadequate, DOCS cannot assert that as a matter of law it “exercised reasonable care” under Faragher. Nor is there any dispute that Richardson took advantage of all avenues
B. Title VII—Retaliation
Title VII provides that it “shall be an unlawful employment practice for an' employer to discriminate against any of his employees ... because [such employee] has opposed any practice made an unlawful practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Richardson contends that DOCS violated this provision by retaliating against her for complaining about and filing charges concerning the harassment she claims to have suffered at ACF.
We evaluate retaliation claims under the burden shifting rules established by the Supreme Court in McDonnell Douglas v. Green,
To establish a prima facie case of retaliation a plaintiff must show (1) participation in a protected activity that is known to the defendant, (2) an employ- . ment decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse decision. See Van Zant v. KLM Royal Dutch Airlines,
There is no disagreement that Richardson engaged in protected activity when she complained to supervisors about harassment, filed her EEOC charge and filed hеr lawsuit. See Gallagher,
1. Performance Revieres
Richardson alleges that she was first retaliated against in 1990 when, after complaining about racial harassment, she received two reviews that deemed her performance “average” rather than “excellent.” We agree with the district court that Richardson failed to establish that the reviews in question constituted an adverse or disadvantaging employment decision as is required under the second prong of the retaliation prima facie case.
As an initial matter, as the district court concluded, the evaluations rated her as “average,” not as below average. More importantly, however, Richardson provided no specific evidence as to what the evaluations actually said, or how or why she deserved better. The record does not contain copies of the evaluations or otherwise explain how they were unwarranted, and when asked at her deposition about these evaluations, Richardson responded that she could not “remember the exact evaluations or any of the specifics.” The conclu-sory allegation that she deserved an excellent, rather than an average, performance rating is insufficient to establish that the evaluations constitute adverse or disadvantageous actions by DOCS. See Smart v. Ball State Univ.,
2. Transfer in Response to Filing EEOC Charge
Richardson claims that DOCS further retaliated against her when, upon her return from her first leave of absence in August 1993, she was transferred to CCF and assigned a new job that brought her into contact with inmates. The district court concluded that the transfer and reassignment did not constitute an adverse employment decision because Richardson consented to the transfer and failed to apply for an alternative position that was available and for which she was qualified. See Richardson,
We conclude that Richardson did establish a prima facie case of retaliation with regard to the transfer and reassignment. In particular, Richardson testified that she believed that DOCS transferred her to CCF in the hopes that she would quit; that “that whole situation and the stores clerk position was set up to force me out of there.”
There was sufficient evidence to conclude that the transfer and reassignment— which involved different job responsibilities and a move to a position involving contact with the prisoner population—constituted an adverse employment decision. See de la Cruz v. New York City Human Resources Admin. & Dep’t of Social Servs.,
Moreover, because the transfer and reassignment were the first actions DOCS took after Richardson returned from the leave on which she filed her EEOC charge, there was sufficient evidence that the transfer and reassignment were causally related to Richardson’s engagement in protected activity. Accordingly Richardson satisfied her de minimis burden and established a prima facie case of retaliation.
3. Retaliatory Harassment at CCF
Richardson also contends that DOCS retaliated against her when it was aware of, but failed to respond to, a pattern of retaliatory acts waged against her by supervisors and co-workers at CCF. In particular, Richardson alleges that CCF personnel were aware of and harassed her because of the protected activities in which she engaged in her attempts to fight the harassment she perceived at ACF. According to Richardson, DOCS’s failure to stop that harassment constitutes retaliation prohibited by Title VII.
Although Richardson raised this theory of liability in opposition to DOCS’s motion for summary judgment, the district court did not address the' argument in its opinion dismissing Richardson’s retaliation claim, and DOCS has failed to address the theory in its briefing in this Court. As discussed below, we hold that Richardson established a prima facie case of retaliation based on these allegations, and that summary judgment was inappropriately granted in DOCS’s favor on this claim.
Courts disagree about whether an employee suffers “adverse employment action” for the purposes of a retaliation claim when, as Richardson alleges, her employer allows her co-workers to harass her because she engaged in protected activity. Compare Gunnell v. Utah Valley State College,
We adopt the view that unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the second prong of the retaliation prima facie case. This conclusion is consistent with our prior cases addressing what constitutes “adverse employment action.”
We have recognized that Title VII does not “define adverse employment action solely in terms of job termination or reduced wages and benefits, and that less flagrant reprisals by employers may indeed be adverse.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997). At the same time, however, “ ‘not every unpleasant matter short of [discharge or demotion] creates a cause of action’ for retaliatory discharge.” Id. (quoting Welsh v. Derwinski,
An employee could suffer a materially adverse change in the terms and conditions of her employment if her employer knew about but failed to take action to abate retaliatory harassment inflicted by co-workers. Just as an employer will be liable in negligence for a racially or sexually hostile work environment created by a victim’s co-workers if the employer knows about (or reasonably should know about) that harassment but fails to take appropriately remedial action, see Burlington Industries,
Here, Richardson has alleged facts to support a Title VII retaliation claim based on unchecked retaliatory harassment inflicted by her co-workers. The evidence Richardson presented shows that she was the target of abusive treatment from her co-workers at CCF after filing her lawsuit. This included manure in her parking space, hair in her food, a
While a jury may find that Richardson has not suffered a materially adverse change in the terms and conditions of her employment, or that the incidents in question were not connected to plaintiffs litigation, Richardson’s allegations clearly state a prima facie claim of retaliatory harassment—оne that DOCS, by its silence, has failed to rebut. Accordingly, DOCS’s motion for summary judgment should not have been granted, and we reverse the district court’s dismissal of this claim.
4. Constructive Discharge
Finally, Richardson charges that she was constructively discharged when, during her final leave of absence, DOCS deemed her to have resigned when she failed to answer DOCS’s request for medical documentation justifying her continued absence. On this claim, the district court properly concluded that Richardson failed to establish the requisite causal connection between the purported discharge and her filing of the EEOC charge and the federal lawsuit. Proof of a causal connection can be established “directly through evidence of retaliatory animus directed against the plaintiff,” DeCintio,
Although Richardson filed the EEOC charge in December 1992 and her federal lawsuit in January 1994, she was not discharged until January 1996. This two year gap is too wide to support the inference that she was terminated in retaliation for complaining about discrimination, and Richardson failed to adduce any other evidence to indicate that her discharge was the product of retaliatory animus. Nor did Richardson provide evidence that DOCS treated other employees in a dissimilar fashion.
Moreover, even assuming that a causal connection did exist, DOCS has offered a legitimate, nondiscriminatory reason for terminating her employment, i.e., Richardson’s undisputed failure to respond to DOCS’s legitimate demand that she provide written documentation supporting her absence. Because Richardson has not come forward with any evidence (other than her general claim of discrimination) that that reason was pretextual, the district court properly granted DOCS summary judgment on the constructive discharge retaliation claim. See, e. g., Holt v. KMI-Continental,
C. Eleventh Amendment
Richardson’s final argument on appeal challenges the district court’s decision to dismiss her state law claims against DOCS on Eleventh Amendment grounds. Richardson does not contest the substance of that ruling, but instead argues that the district court should not have so ruled because the state had already waived that defense by failing to assert it in its answer.
As interpreted, the Eleventh Amendment
Eleventh Amendment immunity is not absolute, however. To the contrary, a state may be divested of immunity and haled into federal court in one of two ways: (1) Congress may abrogate the sovereign immunity through a statutory enactment, Close,
“The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero,
In Ford Motor Co. v. Department of the Treasury,
Richardson is correct that some cases have characterized the Eleventh Amendment as presenting something less than a pure jurisdictional bar. As an initial matter, unlike a true jurisdictional bar, the defense may be waived. See Atascadero,
Although these decisions may suggest ways in which the Eleventh Amendment differs from other jurisdictional bars, they simply do not establish the proposition that Richardson seeks to advance: that a failure to raise the Eleventh Amendment in an answer constitutes a waiver of the immunity that amendment provides. At most, Patsy raises the question of whether federal courts “are required or merely authorized to consider sua sponte the Eleventh Amendment’s applicability.”’ See Mascheroni v. Board of Regents,
However the Eleventh Amendment immunity may differ from' other jurisdictional bars, the law remains clear that it is jurisdictional enough that it need not be raised in the trial court. See Edelman,
DOCS did not waive its Eleventh Amendment immunity by failing to raise the defense until it moved for summary judgment, and we affirm the district court’s decision to dismiss the state law claims against DOCS on Eleventh Amendment grounds.
CONCLUSION
On Richardson’s Title VII hostile environment claim, we affirm the decision of
Notes
. Although Richardson failed either to support this allegation in her affidavit in opposition to DOCS's summary judgment motion or mention it in her aрpellate brief, the allegation /was ¡n her supplemental complaint, was not refuted by DOCS and was addressed by the district court. As such we will consider it among those incidents forming the basis for Richardson's purported hostile environment claim.
. Generally, the same standards apply to both race-based and sex-based hostile environment claims. See Torres,
. In adopting this standard as the proper one under Title VII, we reject the view of those courts that look to the perspective of the particular ethnic or gender group, e. g., a "reasonable African-American" or a "reasonable Jew.” See, e. g., Stingley v. Arizona,
. The Chief Judge in his dissenting opinion maintains that Richardson did not suffer an adverse employment decision, and hence did not make out a prima facie case, because she asked to be transferred and was offered and voluntarily accepted reassignment to the only position available at that time.
Richardson acknowledges that she sought a transfer, which is understandable given the difficulties she encountered at ACF. Accordingly, she bases her claim not on the transfer itself, but on her reassignment to the less desirable position of "stores clerk,” a job that involved inmate contact. Moreover, although one exchange in the deposition transcript indicates that Richardson "believed” that the stores clerk job was the only position available at the time of her transfer, her claim
Although arguing that Richardson failed to make out a prima facie case, what the dissent actually reveals is that DOCS may have had legitimate, non-retaliatory reasons for reassigning Richardson in the manner it did, e. g., she asked to be transferred and apparently was reassigned to the only position available at that time. Had DOCS proffered even one such reason in support of its motion it may well have prevailed and steered clear of the supposed "Catch-22" envisioned by the dissent. Once DOCS proffered such a reason, Richardson would have faced the often arduous task of proving that the proffered reason was merely a pretext for retaliation and that the reassignment was prompted by an impermissible motive. But in moving for summary judgment DOCS chose not to proffer a single non-retаliatory reason for the transfer, and it is not our role to do so now on DOCS’s behalf.
. The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens*448 of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const, amend. XI.
. Richardson relies also on language in Blatchford v. Native Village of Noatak & Circle Village,
Concurrence Opinion
concurring in part and dissenting in part:
I concur in the majority opinion except for the reversal of the grant of summary judgment on Richardson’s retaliation claim so far as it was based upon her transfer. As to that, I respectfully dissent.
My colleagues posit a record supporting a factual finding that, after Richardson filed a discrimination complaint, NYDOCS involuntarily transferred her to a less desirable job, a transfer from which a retaliatory motive might be inferred. Actually, however, it is undisputed that, after filing the complaint, Richardson asked for a transfer, and NYDOCS offered her the only position then available, with an option to take it or not. She chose to take it. In my view, there can be no permissible inference of retaliatory motive from these facts.
NYDOCS Statement Pursuant to Local Rule 7.1(f) ¶¶ 38-41 (proffering undisputed facts surrounding transfer) and Richardson’s Submissions in Opposition, at 4 (admitting facts provided by NYDOCS about the transfer) establish as undisputed that: (i) the transfer occurred at Richardson’s request, (ii) the position was the only job available at that time, (iii) she had the option of accepting the Cayuga position or remaining at Auburn, and (iv) she voluntarily chose Auburn.
That these facts are undisputed is underlined by Richardson’s own deposition testimony:
Q: And at that time [during her leave] is it fair to say that your attorney, Mimi Satter, contacted the Department of Correctional Services to see if a position could be found at another correctional facility, you know, a place other than Auburn?
A: Yes.
Q The question was, did there come a time that you were advised that there was a position available for you at Cayuga Correctional Facility?
A Yes.
Q And what were you told?
A I was told that I didn’t have to go back to Auburn, that there was a pоsition available at Cayuga Correctional.
Q Did you accept that position at Cayuga?
A Yes, I did.
Q Did you accept that position voluntarily?
A Yes, I did.
My colleagues conclude that Richardson’s transfer might be found by a trier of fact to constitute an adverse employment action, relying on her allegation that the Cayuga job was less desirable than the one at Auburn. While there is caselaw that quite properly holds that an involuntary transfer to a different job can be found by a trier of fact to have been an adverse employment decision, see, e.g., de la Cruz v. New York City Human Resources Admin. & Dep’t of Soc. Servs.,