# Cynthia A. Richardson v. New York State Department of Correctional Service, Auburn Correctional Facility > Court of Appeals for the Second Circuit · June 16, 1999 · 180 F.3d 426 URL: https://www.frixlaw.com/law-library/cases/9492227 ## Case - **Full name:** Cynthia A. RICHARDSON, Plaintiff-Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICE, Auburn Correctional Facility, Defendant-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 16, 1999 - **Citations:** 180 F.3d 426; 76 Empl. Prac. Dec. (CCH) 46,070; 80 Fair Empl. Prac. Cas. (BNA) 110; 1999 U.S. App. LEXIS 13249; 1999 WL 391551 - **Precedential status:** Published - **Opinion:** Concurring in part by Winter - **Judges:** Winter, Meskill, Leval - **Cited by:** 686 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492227 ## How later opinions describe it (automated extraction) - finding that plaintiffs transfer to a position that “involved different job responsibilities and ... involve[ed] contact with the prisoner population,” where plaintiff testified that she believed she was transferred “in the hopes that she would quit” was a materially adverse e… - finding sufficient evidence to support a conclusion that a transfer requested by plaintiff constituted an adverse employment action where there was evidence that another, more desirable, lateral job opening for which plaintiff was qualified may have existed but was not offered… - stating that if defendant establishes a legitimate nondiscriminatory reason, “plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.” - finding “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” - holding that, unlike here, the defendant “chose not to proffer a single non- retaliatory reason for [the adverse employment action]” ## Opinion text WINTER, Chief Judge, 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 position 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., 82 F.3d 16 , 21 (2d Cir.1996), it hardly applies in circumstances where, in response to a request by the employee, the employer offers the only job available, leaving the decision whether or not to transfer to the employee. *451 This decision creates a Catch-22 for employers. Once an employee files a discrimination claim and requests a transfer, the offering of a transfer to the only open position seems less adverse to the employee than either denying the request or ordering a mandatory transfer. If offering a transfer to the only job available can support a finding of retaliation, then surely denying or ordering one can also support such a finding. An employee who files a discrimination claim and request for transfer, therefore, will have automatically established a prima facie case under my colleagues’ theory. Because that cannot be the law, I respectfully dissent on that one issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492227. Public record. Not legal advice.