Richardson v. New York State Dept. of Correctional Service, Docket No. 98-7110

• Decision Date: 16 June 1999
• Docket Number: Docket No. 98-7110
• Parties: , Cynthia A. RICHARDSON, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICE, Auburn Correctional Facility, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 426

180 F.3d 426, Cynthia A. RICHARDSON, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICE, Auburn Correctional Facility, Defendant-Appellee.

Docket No. 98-7110.

United States Court of Appeals Second Circuit.

Argued Sept. 24, 1998.

Decided June 16, 1999.

Plaintiff appeals from a judgment of the United States District Court for the Northern District of New York, Scullin, J., dismissing her claims of hostile work environment racial harassment and retaliation brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and dismissing on Eleventh Amendment grounds her pendent state law claims brought under New York Exec. L. § 290 et seq. Affirmed in part, vacated in part and remanded.

DAVID E. PEEBLES, Syracuse, N.Y. (Hancock & Estabrook, Syracuse, NY, of counsel), for Appellant.

MARLENE O. TUCZINSKI, Assistant Attorney General, State of New York, Albany, N.Y. (Dennis C. Vacco, Attorney General of New York, Peter H. Schiff, Deputy Solicitor General, Peter G. Crary, Assistant Attorney General, State of New York, Albany, NY, of counsel), for Appellee.

Before: WINTER, Chief Judge, MESKILL and LEVAL, Circuit Judges. Plaintiff

Chief Judge WINTER concurs in part and dissents in part in a separate opinion.

MESKILL, Circuit Judge:

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)(1), 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, 1997 WL 797527, at * 5-6 (N.D.N.Y. Dec.22, 1997). The district court also granted DOCS summary judgment on Richardson's Title VII retaliation claim, determining that Richardson failed to present evidence sufficient to establish that DOCS took adverse employment action against her as a result of her having engaged in protected activity. Id. at * 7. Finally, the district court granted DOCS's motion to dismiss Richardson's state law claims on Eleventh Amendment grounds, over Richardson's objection that DOCS waived its Eleventh Amendment immunity when it failed to raise the defense in its answer. Id. at * 1 n. 1. We affirm the district court's ruling on Richardson's state law claims and on two aspects of her Title VII retaliation claims, but we vacate and remand on the Title VII hostile work environment claim and on two aspects of her retaliation claim.

BACKGROUND

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, the 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 been through."

Van Houter recommended that DOCS institute a "Cultural Awareness Training" program specifically tailored for the ACF staff, and her suggestion was endorsed by the Superintendent of ACF, Hans Walker, and his deputy, Ronald Nelson. Van Houter noted that if it were approved she could produce such a program within 60 days. No facility-specific program was ever held and no program of any kind was instituted until late 1993 or early 1994--some three years after Van Houter's recommendation--when a system-wide program was commenced in response to a court order in a different case.

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." ¹ The ninth incident occurred during an April 1992 training session when, in response to an instructor's question on how to address inmates a co-worker explained that he referred to them as "Buckwheat." Richardson alleges that the instructors and other attendees laughed at the comment and that, despite her protests, the instructors failed to advise the class that use of the term was derogatory and could in fact be dangerous. Richardson complained about this incident in a May 1992 letter to DOCS superintendent Thomas Coughlin, who responded with a letter in which he promised to prevent recurrence and assured Richardson that instructors were being reminded of the importance of sensitivity in all training programs. No disciplinary action was taken against the co-worker or the supervisors who ran the training session, nor were the participants from that session advised that the term was derogatory and possibly dangerous.

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 responded 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...