336 F.

3d 128

Andrew TERRY, Plaintiff-Appellant,

v.
John ASHCROFT,1 Attorney General of the United States in
his official capacity, Department of Justice of the United States,
Individually and in their official capacity, United States
Immigration and Naturalization Service, Individually and in
their official capacity, Defendants-Appellees,
William Slattery, Individually and in his official capacity,
Daniel Molerio, Individually and in his official capacity,
Edward McElroy, Individually and in his official capacity,
Farrell Adams, Individually and in his official capacity, and
Charles Ferrigno, Individually and in his official capacity,
Defendants.
No. 00-6090.

United States Court of Appeals, Second Circuit.

Argued: November 6, 2001.
Decided: July 17, 2003.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT
MATERIAL OMITTED Eric S. Crusius (Linda M. Cronin on brief),
Cronin & Byczek, LLP, Lake Success, New York, for Appellant.
Nicole L. Gueron, Assistant United States Attorney for the Southern
District of New York (Mary Jo White, United States Attorney, and Jeffrey
Oestericher, Assistant United States Attorney, on brief) New York, New
York, for Appellees.
Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.
F.I. PARKER, Circuit Judge.

Plaintiff, Andrew ("Jack") Jackson Terry, a former Special Agent with the

Immigration and Naturalization Service ("INS") appeals from a decision of the

United States District Court for the Southern District of New York (Naomi
Reice Buchwald, Judge) granting summary judgment to defendants. See Terry
v. United States, No. 98 CIV. 8249, 2000 WL 204522 (S.D.N.Y. 2000). Terry
had alleged that defendants violated Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. 2000e, et seq., and the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. 621, et seq., by discriminating
against him on the basis of race, gender, and age; by retaliating against him for
filing related complaints with the agency's Equal Employment Opportunity
("EEO") office; by creating a hostile work environment; and by eventually
constructively discharging him. Terry also alleged that defendants violated his
rights under the Employee Retirement Income Security Act ("ERISA"), 29
U.S.C. 1140, alleging that the fact that he was not vested in his pension was a
basis for defendants' decision to constructively terminate him. On appeal, Terry
argues that defendants were not entitled to summary judgment.
I. BACKGROUND
2

The facts as largely set forth in the district court's opinion are as follows.

Plaintiff, a white male born in 1946, began working for the INS in 1976 at the
age of 30 as a Special Agent in the New York District Office, and continued to
work for the INS in various positions until 1997.

In October 1992, the INS published Vacancy Announcement 92-59 for the
position of supervisory criminal investigator ("Vacancy 92-59"). Plaintiff
applied for promotion to this vacancy. Lesley Smail, an INS personnel staffing
specialist, reviewed candidates' applications and created a "Best Qualified List"
("BQL") which, according to defendants, indicated those candidates who were
best qualified for the position. According to INS policy, such lists are sent to
the selecting officer who may nevertheless select a candidate who is not listed.
Plaintiff was neither placed on the BQL nor selected for the position. Rather,
on December 4, 1992, INS New York District Director William Slattery
selected Farrell Adams, an African-American male born in 1954 whose name
was on the BQL.

In response to Adams' selection, Terry filed a complaint with the EEO alleging
that race and age-based discrimination were behind the decision not to promote
him. Plaintiff alleges that he was wrongfully excluded from the BQL and
wrongfully denied promotion due to his race and age, as evidenced by the INS's
promotion of a younger black man of allegedly inferior qualifications.
Defendants contend that the list was compiled without consideration of race or

age, and that Slattery selected Adams because Slattery had been impressed by
Adams' performance on a difficult assignment for which Adams had
volunteered. Slattery swore under oath that he did not know the names of
applicants who were not listed on the BQL.
6

In 1993, the INS published an announcement for Vacancy 93-01 for the
position of supervisory criminal investigator ("Vacancy 93-01"). Again plaintiff
applied and a "Best Qualified List" was compiled. This time plaintiff's name
appeared on the BQL along with those of 14 other employees. Slattery, INS
Deputy District Director Edward McElroy, and INS Assistant District Director
for Investigations Daniel Molerio reviewed the BQL and selected three other
employees: two females under the age of 40, and one white male over 40 who
was a few years older than plaintiff.

Plaintiff contends that he was denied promotion to Vacancy 93-01 because of

his age.2 In support of this claim, he points to the INS form used to rank
candidates (the "Candidates Ranking Form"), apparently compiled by Smail,
which shows that he was ranked higher than one of the women promoted. He
also testified that Molerio later told him that he would not be promoted because
of his age. Specifically, Terry testified that Molerio said to him: "How old are
you now? ... Look around you. Everyone else is getting promoted. You're not.
Why?"3 Defendants contend that plaintiff was denied promotion because other
employees on the BQL were considered superior and plaintiff was quarrelsome
and unexemplary. Terry disputes this characterization, and alleges that he has
received written commendations for his "outstanding interpersonal skills."4

In November 1993, Terry filed a complaint with the EEO alleging that the
decision not to promote him to Vacancy 93-01 was discriminatory. In January
1994, plaintiff was hospitalized for chest pains and diagnosed with mitral valve
prolapse. The following month he filed a claim for worker's compensation
based on his chest pains. Shortly thereafter, Terry attended the "Police
Olympics" where he won five gold medals. On June 16, 1994, after learning of
Terry's participation in the Police Olympics, Assistant District Director
McElroy suspended plaintiff's authorization to carry a firearm and ordered him
to undergo a "fitness for duty" medical exam. After undergoing such an exam,
Terry was restored to full duty status on August 17, 1994. On September 1,
1994, plaintiff filed an EEO complaint alleging reprisal for his earlier
complaints. Less than two months later, plaintiff was reassigned to the Criminal
Aliens Section where Farrell Adams was his immediate supervisor. Two days
after his reassignment, plaintiff had an altercation with Adams in which he
alleges Adams threatened him. The next day, plaintiff was informed by Charles
Ferrigno, Chief of the Criminal Alien Processing Section, that he was not

allowed to ride in government-owned vehicles.

9

In April 1995, Brian McDonald, a social worker selected by the INS with
whom Terry had met,5 contacted the INS and issued a warning about plaintiff.
In an April 23 letter confirming his warning, McDonald listed several INS
employees with whom Terry allegedly had a history of conflict, and noted that
they "should be mindful of their actions concerning Special Agent Terry."
McDonald explained that he breached Terry's right to confidentiality because
he had a duty to warn which required such a breach. 6 The following day, the
INS placed Terry on paid administrative leave. During plaintiff's leave, Dr.
John Pappas twice examined Terry on behalf of the INS to evaluate his fitness
for duty, concluding in an October 9, 1996 report that plaintiff was fit for duty.
Two months later, on December 17, 1996, the INS advised plaintiff that his
paid administrative leave would terminate on January 2, 1997 and that he
would be reassigned to the Deportation Branch. Plaintiff contends that the
significant delay and reassignment were both retaliation for his EEO
complaints.

10

Plaintiff began work with the Deportation Branch on January 2, 1997. In order
to perform field work, however, Terry was required to carry a firearm. To do
that, he was required to "qualify" on a firing range. Plaintiff claims that when
the firearms qualification schedule was posted two weeks later, his name was
omitted from the list in retaliation for his EEO complaints.7 In support of this
allegation, he cites a recorded conversation in which his supervisor Ethan Enzer
explicitly stated that he had no clearance to send Terry to the range because of
Terry's "ongoing pending action."

11

On February 7, 1997, plaintiff went on medical leave to have surgery on his

toe, and remained on leave until he "retired" that June. Plaintiff alleges that he
was constructively discharged as a result of the hostile treatment he endured
during the course of his employment.

II. DISTRICT COURT PROCEEDING

12

On February 18, 2000, the United States District Court for the Southern
District of New York granted defendants' motion for summary judgment on all
claims and dismissed Terry's complaint. Judgment was entered on February 24,
2000.

13

In granting summary judgment, the district court found that Terry had not stated
a prima facie case of either age or racial discrimination in connection with the

failure to promote him to Vacancy 92-59 because he could not demonstrate that
he had been excluded from the BQL for a discriminatory reason. The district
court credited Smail's testimony that she had not considered age or race in
forming the list. In addition, the district court found that even if Terry had
established a prima facie case, defendants had offered a legitimate, nondiscriminatory rationale for their actions and Terry had not produced evidence
sufficient to show that their stated rationale was pretextual.8 The district court
found that Terry had also not stated a prima facie case for discrimination in
connection with the failure to promote him to Vacancy 93-01, explaining only
that one of the persons selected for that position was a white male who like
Terry was over the age of 40. In addition, the district court found that
defendants had stated a legitimate reason for not choosing Terry because Terry
was known to be quarrelsome and uncooperative. The district court did not
explicitly address that portion of Terry's original complaint in which Terry
alleged that the failure to promote him to Vacancy 93-01 was also the result of
gender-based discrimination.
14

The district court also rejected Terry's claim that he was retaliated against for
filing EEO complaints. In doing so, the district court discussed a number of
discrete instances in which Terry alleged that he had experienced retaliation,
and found that none was sufficient to state a prima facie case.

15

As for Terry's hostile work environment claim, the district court found that
Terry had merely alleged isolated and sporadic harassment and therefore did
not have a hostile work environment claim. The district court indicated that a
hostile work environment claim also could not stand because Terry was able to
complete his work and remained psychologically healthy.

16

Similarly, the district court found that plaintiff's constructive discharge claim
was not actionable because Terry failed to establish that his departure from
employment occurred under circumstances giving rise to an inference of
discrimination and failed to establish that the acts of which he complained
would have compelled a reasonable person to end his employment. The district
court concluded that "the incidents plaintiff describes appear to be attributable
to personal animosity."

17

Finally, the district court denied plaintiff's demand for punitive damages
because "such damages are not available against the government under Title
VII."

18

The district court did not explicitly address plaintiff's ERISA claim. However,

in dismissing his constructive discharge claim in general, the district court

effectively dismissed plaintiff's claim that he was constructively discharged in
violation of ERISA.
III. DISCUSSION
19

This court reviews grants of summary judgment de novo. Scaria v. Rubin, 117
F.3d 652, 653 (2d Cir.1997) (per curiam). Summary judgment is only
warranted upon a showing "that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The burden is on the moving party to establish the absence
of any material factual issues. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether there are genuine
issues of material fact, we are "required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary
judgment is sought." Stern v. Trustees of Columbia Univ. in City of New York,
131 F.3d 305, 312 (2d Cir.1997). We may only affirm if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of [his] claim which
would entitle [him] to relief." Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,
274 F.3d 683, 685 (2d Cir.2001) (internal formatting omitted) (per curiam).
A. Discrimination Claims

20

To establish a prima facie case of age discrimination under the ADEA, a

claimant must demonstrate that: 1) he was within the protected age group; 2) he
was qualified for the position; 3) he was subject to an adverse employment
action; and 4) the adverse action occurred under "circumstances giving rise to
an inference of discrimination." See Roge v. NYP Holdings, Inc., 257 F.3d 164,
168 (2d Cir.2001). Similarly, to establish a claim of racial or gender
discrimination under Title VII, a claimant must show that: 1) he belonged to a
protected class; 2) he was qualified for the position; 3) he suffered an adverse
employment action; and 4) the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory intent. See Collins v.
New York City Transit Auth., 305 F.3d 113, 118 (2d Cir.2002). An "adverse
employment action" is one which is "more disruptive than a mere
inconvenience or an alteration of job responsibilities." Galabya v. New York
City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (quoting Crady v. Liberty
Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)). Examples of
materially adverse changes include "termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material
loss of benefits, significantly diminished material responsibilities, or other
indices ... unique to a particular situation." Id. (quoting Crady, 993 F.2d at 136).

21

Under either statute, once a plaintiff has established a prima facie case, the
burden shifts to the defendant, which is required to offer a legitimate, nondiscriminatory rationale for its actions. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Title VII); Schnabel
v. Abramson, 232 F.3d 83, 87 (2d Cir.2000) (ADEA). Thus, once the defendant
has made a showing of a neutral reason for the complained of action, "to defeat
summary judgment ... the plaintiff's admissible evidence must show
circumstances that would be sufficient to permit a rational finder of fact to infer
that the defendant's employment decision was more likely than not based in
whole or in part on discrimination." Stern, 131 F.3d at 312.
1. Discrimination as to Vacancy 92-59

22

We find that Terry has presented sufficient evidence to make out a prima facie
case of discrimination as to his nonselection for Vacancy 92-59. First, he was a
member of a protected group within the meaning of both Title VII and the
ADEA as he was allegedly discriminated against on the basis of his race and on
the basis of being an age which was over the age of 40.

23

Second, he has shown that he was qualified for the position. It is undisputed
that Terry had seventeen years of experience, twenty-seven citations for
superior accomplishments and outstanding performance, and a history of
positive performance evaluations on a wide range of job elements. By
comparison, the individual selected for the position had only four years of
experience, only four citations for superior accomplishments and outstanding
performance, and had not been evaluated on as many job elements as Terry. In
addition, a review of Terry's application for the promotion, suggests that he met
the qualifications for the promotion as set in the Vacancy Announcement for
the position. Furthermore, the qualifications listed in the announcement for
Vacancy 92-59 are virtually identical to those listed in the announcement for
Vacancy 93-01; defendants do not dispute that Terry was qualified for Vacancy
93-01, and Terry was placed on the BQL for Vacancy 93-01.

24

The district court nevertheless reasoned that Terry was not qualified because he
was not on the Best Qualified List ("BQL") and had failed to show that his
exclusion from the BQL was discriminatory. However, there is a genuine issue
of material fact as to whether Terry's exclusion from the list was
discriminatory. Although defendants contend that the BQL was compiled by
someone who did not know Terry's age or race and that the BQL was the sole
list of applicants known to those making the final promotion decision, the
following handwritten notation appears on Terry's application for the position:
"Race: Caucasian."9 Although there is a factual issue as to who made this

notation and when, the presence of the notation would allow a fact-finder to
conclude that Smail was not telling the truth when she said that she did not
consider race, and that the defendants' stated rationale for the promotion
decision was pretextual.
25

Third, Terry suffered an adverse employment action as a result of the decision

not to promote him. See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002) (a
refusal to promote constitutes an adverse employment action).

26

Finally, viewing the facts in the light most favorable to the plaintiff, the
circumstances under which he was not selected give rise to an inference of
discrimination on the basis of race because his application is marked with his
race and the position was offered to an allegedly significantly less qualified
African-American man. A fact-finder could also conclude that age
discrimination was a factor in the decision because the person selected for the
position was significantly younger than Terry and Terry testified that Assistant
District Director Daniel Molerio, who was at least subsequently involved in
similar promotion decisions, indicated to Terry that Terry was too old to be
promoted. Terry testified that Molerio said to him "How old are you now? ...
Everyone else is getting promoted. You're not. Why?" and "You haven't been
promoted. You're not going to be promoted. Look around you. Everybody else
is younger than you." While Terry testified that these comments were made
several years after Vacancy 92-59 had been filled, the weight to be given these
comments is a matter for the jury, which could infer that age was a factor in
promotion decisions at the New York District Office.

27

Since a prima facie case has been established, the burden of production shifts to
defendants to provide a legitimate, non-discriminatory reason for the refusal to
promote Terry. Defendants have stated that Adams, a black male eight years
Terry's junior, was promoted because he had performed well on a difficult
assignment for which he had volunteered. However, defendants have not
provided a reason for excluding Terry from the BQL, or explained why Adams
was better qualified than Terry other than that Adams was on the BQL and
Terry was not. Accordingly, there is a genuine issue of material fact as to
whether defendants have offered a legitimate, non-discriminatory rationale for
their actions. Thus, summary judgment should not have been granted to
defendants on Terry's discrimination claim stemming from Vacancy 92-59.
2. Discrimination as to Vacancy 93-01

28

Terry argues that his age was considered by those who made the promotion

decisions for Vacancy 93-01.

29

Terry has established a prima facie case of age discrimination as to Vacancy 9301. As with the prior vacancy, he has provided sufficient evidence to show that
he was within a protected age group (i.e., that he was over the age of forty), was
qualified for the position, 10 and was not promoted to the position. He has also
provided sufficient evidence to show that the circumstances surrounding the
promotion decision give rise to an inference of age discrimination. Specifically,
handwritten notations as to candidates' birth dates were on a memorandum
listing the "Best Qualified" candidates addressed to Slattery, although Slattery
stated that the memo he reviewed did not contain any such notations and there
is a factual question as to who made the notations and when. If the notations
were on the memo at the time Slattery was making his decision, an issue that is
for a trier-of-fact to determine, a trier-of-fact could infer that Slattery
considered age.

30

In addition, as previously discussed, Terry testified at his deposition that

Molerio, who assisted Slattery in deciding whom to promote to Vacancy 93-01,
told him in the winter of 1995 or 1996 that he was not going to be promoted and
indicated that only younger persons would be. Although Terry testified that
these comments were made long after the actual hiring decision was made, a
reasonable fact-finder could conclude that they help explain why Slattery, with
the assistance of Molerio, made the particular decision he did regarding
Vacancy 93-01.

31

We note that the fact that one of the applicants hired instead of Terry was over
forty years of age in no way compels the conclusion that Terry was not the
victim of age discrimination. See O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) ("[T]hat one
person in the protected class has lost out to another person in the protected class
is... irrelevant, so long as he has lost out because of his age.") There is sufficient
evidence in the record to raise a triable issue as to whether Terry's age factored
into the decision not to promote him.

32

Since Terry has established a prima facie case, the burden shifts to defendants.
Defendants have offered a nondiscriminatory reason for the promotion
decision, stating that Terry was not promoted because the other applicants were
better qualified and because Terry had a reputation for being quarrelsome.
Defendants, however, have not come forward with evidence as to what about
the other employees made them better qualified; whether or not Terry had a
reputation for being quarrelsome is disputed.11 Accordingly, a reasonable factfinder could conclude that defendants' stated reason was a pretext for unlawful

discrimination. Therefore, summary judgment should not have been granted to

defendants.
B. Retaliation Claims
33

Title VII makes it unlawful for an employer to discriminate against an

employee "because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this subchapter."
42 U.S.C. 2000e-3(a). Title VII is violated when "a retaliatory motive plays a
part in adverse employment actions toward an employee, whether or not it was
the sole cause." Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d
Cir.1993). "To establish a prima facie case of retaliation, an employee must
show `[1] participation in a protected activity known to the defendant; [2] an
employment action disadvantaging the plaintiff; and [3] a causal connection
between the protected activity and the adverse employment action.'" Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (quoting Tomka v.
Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995)). The McDonnell Douglas
burden shifting analysis used in claims of discrimination in violation of Title
VII also applies to retaliation claims brought pursuant to Title VII. See Reed v.
A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996). The same standards
and burdens apply to claims of retaliation in violation of the ADEA. Schnabel,
232 F.3d at 87 (stating that ADEA claims are analyzed under the same
framework as claims brought pursuant to Title VII).

34

Terry contends that his retaliation claim is supported by his evidence of a series
of retaliatory acts including: 1) refusal to promote him to Vacancy 93-01; 2)
suspension of his firearms privileges; 3) transfer in October 1994 into the unit
supervised by Farrell Adams; 4) withdrawal of his vehicle privileges; 5) forced
visits with a social worker who worked for the Employee Assistance Program
at INS, and Terry's subsequent placement on administrative leave for 1 years
following a warning issued by that social worker; 6) transfer to the Deportation
Branch, where his personnel form contained the typed notation "NO
PROMOTION POTENTIAL"; and 7) denial of his annual leave time. If Terry
can meet his burden as to any one of these instances, then granting summary
judgment to defendants on Terry's claim that he was retaliated against for his
EEO activity was not proper.

35

Terry's evidence of retaliation includes evidence suggesting that retaliation was

commonplace in the New York District Office. For example, INS employee
Nancy Diaz testified in her deposition that other INS employees faced
retaliation when they complained about unlawful discrimination. In a taped
conversation with Terry, Roger Mayo, Terry's one-time supervisor, stated that

he too had always worried about experiencing retaliation for his actions and
indicated that he was concerned about retaliation if he testified on Terry's
behalf regarding the conditions of Terry's employment. Consistent with such an
atmosphere, Terry swore under oath that he was informed by Joanne Baldwin, a
personnel management specialist, that Slattery "did not look favorably on
complaints" and that Baldwin therefore "tried to discourage me from filing ...
complaints."
36

1. Alleged retaliatory refusal to promote to Vacancy 93-01

37

In 1993, prior to his application to fill Vacancy 93-01, Terry filed a complaint
with the EEO regarding his unsuccessful application for promotion to Vacancy
92-59, charging that Adams was unqualified for the job. The district court
found that Terry "produce[d] no evidence that any of the selecting officials who
denied him promotion to Vacancy 93-01 were aware of the [previously filed]
EEO complaint ...." However, on a memorandum to Slattery listing the Best
Qualified Candidates, on which is written each candidate's age and gender,
there is also a note indicating "Pending Complaint" by Terry's name and a note
indicating "EEO Activity" by the name of another applicant who was denied
promotion. Defendants do not provide any explanation for these notations, and
there is an open factual question as to when and by whom they were made. The
presence of such notations is evidence from which a reasonable trier-of-fact
could infer that Terry's "Pending Complaint" was a motivating factor in the
promotion decision, particularly when coupled with evidence that other INS
employees who reported problems experienced retaliation.

38

The district court found that even if Terry had made out a prima facie case, his
claim would fail nevertheless because defendants had provided a legitimate,
nondiscriminatory reason for not promoting him: that the other candidates were
better qualified. However, the wholly unexplained presence of the notations
"EEO action" and "pending complaint" on the list of candidates is sufficient
especially given the evidence of a pattern of retaliatory action in the agency
to create a genuine issue of material fact regarding the pretextual nature of
defendants' rationale. Moreover, Terry has put forth sufficient evidence to allow
a reasonable fact-finder to conclude that not all of the candidates selected were
in fact better qualified. For example, one of the selectees received a lower
ranking on the candidates ranking form for Vacancy 93-01 than Terry did.12
Accordingly, summary judgment was improper on Terry's retaliation claim
based on his non-promotion to Vacancy 93-01.

39

2. Alleged retaliatory suspension of firearms privileges

40

Terry alleges that his firearms privileges were denied to him in retaliation for
his EEO complaints.

41

In June 1994, a number of months after his January 1994 hospitalization for
chest pains and related problems, Terry's firearms privileges were suspended
and Terry was ordered to undergo a fitness-for-duty medical exam. According
to defendants, the privileges were suspended pending the outcome of the
medical exam and Terry's return to full duty status.13 On August 17, 1994,
Terry was restored to full duty status and defendants imply (but never state)
that Terry regained his firearms privileges at that time. Terry, however, asserts
that he never received re-authorization to carry a firearm.

42

According to Terry, this lack of authorization became a particular problem

when, in January 1997, he returned to work after a 1 year administrative leave
and was placed in the Deportation Branch. He alleges that Deportation Agents
working in the field were required to carry a firearm. To be allowed to carry a
firearm, Terry needed to qualify at a shooting range.14 In a taped telephone
conversation, Terry's immediate supervisor, Ethan Enzer, explicitly stated that
he had no clearance to send Terry to the range because of his "ongoing pending
action," apparently referring to Terry's EEO activities.

43

Terry has stated a prima facie case of retaliation. See Richardson v. New York
State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir.1999). First, he has shown
that he participated in a protected activity known to his employer. Second, a
reasonable fact-finder could conclude that the suspension of Terry's firearms
privileges constituted an adverse employment action. Terry's deposition
suggests that a firearm may well be an essential tool for a Special Agent, and
that the lack of one for a significant period of time could limit the types of
assignments an Agent may take and, therefore, limit the development of the
Agent's career. Third, Terry has presented sufficient evidence for a trier-of-fact
to conclude that there was a causal connection between the protected activity
and the adverse decision. Enzer's statement supports the conclusion that such a
connection existed between the refusal to allow Terry to qualify and his EEO
activity. The existence of a retaliatory refusal to allow Terry to regain his
privileges would in turn support the inference that the original suspension was
retaliatory as well.

44

Terry has also provided sufficient evidence to show that defendants' stated
reasons for the original suspension and the refusal to allow him to qualify were
pretextual. First, insofar as Terry can show that his firearms privileges were
never reinstated, a reasonable fact-finder might infer that defendants' reason for

suspending them in 1994 (that Terry was diagnosed with chest pains and Mitral
Valve Syndrome) were pretextual, because his privileges were not reinstated
even after he subsequently passed a medical exam and was reinstated as fit-forduty. Second, while defendants claim that no adverse action was taken against
Terry because no member of the Branch was allowed to go to the range until
February, and thus Terry was not singled out,15 Enzer's statements could be
read as indicating that the only reason Terry was not allowed to go to the range
earlier was because of his EEO activity.
45

Thus, summary judgment on Terry's retaliation claim stemming from denial of

his firearms privileges was inappropriate.

46

3. Alleged retaliatory transfer in October 1994

47

On October 11, 1994, when Terry returned from a nearly three-month-long

medical leave, he was transferred to the Criminal Aliens Section, the INS unit
supervised by Farrell Adams. Terry alleges that this transfer was in retaliation
for his EEO complaints and points to a tape recorded phone conversation he
had in 1999 with Roger Mayo, Terry's supervisor before the transfer. In that
conversation, Terry asked Mayo why he was transferred and Mayo responded
that, "My belief is that they were trying to screw you." In his subsequent
deposition, Mayo downplayed the comment, explaining that by "screw" he had
meant "discipline", and that the transfer had been an attempt to discipline Terry
by placing him under Adams who was thought to be a tougher supervisor than
Mayo.

48

Defendants respond that the transfer was not retaliatory because it occurred two
years after Terry made an EEO complaint in June of 1993 concerning his nonselection for Vacancy 92-59. This ignores the fact that Terry had filed other
EEO complaints in November 1993 and September 1994, and that given that
Terry was on leave when he filed the latter and October 11 was apparently his
first day back it would not have been possible to subject him to a retaliatory
transfer for that complaint at any earlier point in time. Defendants also contend
that Mayo's comments merely indicated that the transfer was a form of
discipline. However, even assuming that this was the case, it does not show a
lack of retaliation, as discipline can be retaliatory if done to punish an
individual for complaining. Thus, Terry has presented sufficient evidence for a
trier-of-fact to conclude that the transfer was in retaliation for his EEO activity.

49

Terry has also presented sufficient evidence for a trier-of-fact to conclude that
the transfer was an "adverse employment action." An internal transfer can be an

adverse employment action if "accompanied by a negative change in the terms

and conditions of employment." Morris v. Lindau, 196 F.3d 102, 113 (2d
Cir.1999). In Richardson, 180 F.3d at 444, we held that a plaintiff had
sufficiently alleged an adverse employment action when she testified that she
believed the defendant had transferred her to a different position "in the hopes
that she would quit." Similarly, Terry alleges that the INS transferred him into
Adams's unit with the intent to harass him, and has put forth evidence sufficient
to permit a trier-of-fact to conclude that his supervisors believed that he would
find the new assignment to be adverse. Indeed, even defendants' proffered
reason that the transfer was intended to "discipline" Terry suggests that
the INS supervisors who ordered the transfer perceived it as adverse. Terry
clearly also felt it to be adverse and within two days of starting in Adams' unit,
Terry was having personal problems with Adams.
50

Since Terry has put forth sufficient evidence for a trier-of-fact to conclude that
his transfer was a retaliatory, adverse employment action, and since the
defendants' proffered rationale of "discipline" is consistent with a retaliatory
motive, summary judgment was not appropriate.

51

4. Alleged retaliatory withdrawal of vehicle privileges

52

On October 14, 1994, three days after Terry returned to work from medical
leave and found himself assigned to Adams' unit, he was told he could no
longer ride in a government car.16 Terry claims that this prohibition was
retaliatory. Defendants respond that there was no nexus between Terry's EEO
activity and his vehicle suspension. Defendants claim that Terry's vehicle
privileges were legitimately suspended because it was INS policy that
government vehicles are only issued to persons who are on full duty, and that
Terry was on "light duty" through January 9, 1994 on his doctor's orders. Terry
counters that this action was retaliatory. He alleges that defendants were aware
that he was able to successfully engage in activities requiring significant
physical exertion because they knew he had excelled at the Police Olympics. In
addition, he testified that no other ill agents were prohibited from riding in
government cars. Consistent with this testimony, Ferrigno admitted at his
deposition that he could not recall a single other instance in the 21 years he had
worked for the INS in which an employee had not been allowed to ride in a
government-owned vehicle because of his or her illness. This court fails to see
any rational relationship between Terry's "light duty" status and the prohibition
against his riding in a government-owned vehicle, and the defendants have
failed to explain how a potential heart condition made it any less appropriate
for Terry to merely sit in a moving car.17 Moreover, the only evidence of a
policy similar to that which defendants claim existed is Molerio's affidavit

which states that government vehicles are only issued to persons of full duty
status. However, the question before us is not whether a failure to issue Terry a
vehicle could be seen as retaliatory, but rather whether the failure to even allow
him to ride in one could be seen as retaliatory. Defendants have failed to put
forth evidence of a policy which would support the prohibition against merely
riding in government-owned vehicles.
53

Even if this court were to accept the defendants' explanation as legitimate,

Terry has put forth sufficient evidence to support a finding that it was merely
pretextual. First, the suspension occurred one day after a verbal altercation
between Terry and Adams at which, according to Terry's affidavit, Adams
allegedly told Terry that "we'll take care of you tomorrow." Second, defendants
fail to explain why the vehicle suspension apparently continued after Terry
returned to full duty status.

54

Finally, defendants assert that the vehicle suspension could not be an adverse
employment action. A reasonable trier-of-fact, however, could conclude that
the inability to ride in a government-owned vehicle was a sufficiently adverse
employment action where it would require plaintiff to undertake an allegedly
much more taxing commute than would otherwise have been possible and
where it appears that to fully engage in his new position Terry would have had
to perform field work.

55

Because sufficient evidence was presented to create a genuine issue of material

fact as to whether the prohibition against riding in a government vehicle was
retaliatory, granting summary judgment to defendants on plaintiff's retaliation
claim was improper.

56

5. Alleged retaliatory requirement to see a social worker, and resulting

placement on administrative leave for 1 years

57

Terry alleges that he was forced to see social worker Brian McDonald in
retaliation for his EEO complaints. He further alleges that the "Tarasoff"
warning issued by McDonald and his subsequent placement on administrative
leave for 1 years also resulted from a retaliatory motive.

58

The first allegation is wholly unsupported because Terry presents no evidence

that defendants ever required him to meet with McDonald. The second
allegation, however, is supported by evidence and should be heard by a trier-offact.

59

Contrary to the district court's conclusion, Terry has presented sufficient

evidence for a trier-of-fact to conclude that there was a causal connection
between his complaints and his placement on administrative leave. The district
court stated that there was a lapse of over six months between when plaintiff
filed an EEO complaint in September 1994 and when he was placed on leave.
However, Terry's complaint alleges that he also filed an EEO complaint in
February 1995, slightly less than three months before being placed on
administrative leave. Moreover, reviewing the evidence in the light most
favorable to Terry, it appears that there was no meaningful lag time between his
EEO activity and the onset of frequent harassment,18 and a series of other
retaliatory acts.

60

Also contrary to the district court's conclusion, Terry has presented sufficient
evidence to permit the inference that defendants' stated rationale i.e., the
seriousness of a Tarasoff warning was pretextual. Specifically, Terry has
presented evidence that would allow a reasonable fact-finder to conclude that
the warning was not credible, and that Terry's supervisors knew that it was not.
Evaluating Terry some months later, Dr. Pappas stated that:

61

It is also my opinion, based on Mr. McDonald's lack of cooperation with this

evaluation, that his Tarasoff Warning does not appear to be credible and
germane to Mr. Terry's current functioning. Of particular significance, is that
Mr. Terry never made any specific threats towards any individual, nor did he
articulate any plan to carry out any harm against any individual. This
information was ... verified by Mr. McDonald.

62

Consistent with this assessment, Terry testified that the warning was not the
result of any threat he posed, but rather the result of pressure placed on
McDonald by the INS which caused McDonald to compromise his professional
integrity and declare Terry to be a threat. Terry testified that McDonald
acknowledged to Terry that he knew the INS was "after" Terry and that the INS
would "go to great lengths" to "get" him. Terry also testified that McDonald
told him that he had never seen so much INS paperwork about one person, and
stated "If I could, I would like to see you in a one-man office out in Montauk
Point looking for German submarines." Terry testified that he interpreted this
statement as indicating that McDonald thought Terry was in some danger.
Assuming that McDonald so testified at trial or that Terry's statements as to
what McDonald said to him are admissible despite the hearsay rule, such
statements might well make a reasonable fact-finder skeptical of the reasons
offered by defendants for Terry's placement on administration leave.

63

Since Terry thus presented sufficient evidence to create a genuine issue of

63

Since Terry thus presented sufficient evidence to create a genuine issue of

material fact as to whether his placement on administrative leave was in
retaliation for his EEO complaints, summary judgment on plaintiff's retaliation
claim was improper.

64

6. Alleged retaliatory transfer to the Deportation Branch and accompanying

"no promotion potential" notation in his file

65

Terry contends that his transfer to the Deportation Branch when he returned
from his lengthy administrative leave was a demotion. Terry alleges his new
position was less prestigious and less glamorous than his previous position. He
also complains that the transfer was accompanied by poor working conditions,
including a failure to issue him any credentials or a badge, failure to initially
give him a computer password or to give him computer training, and failure to
provide him with either a desk or a workspace for his first two weeks in the
position. Terry also claims that he was given low-level ministerial work which
was unlike that assigned to other deportation officers. Finally, he notes that his
transfer form contained the typed notation "NO PROMOTION POTENTIAL."

66

Defendants respond by setting forth a non-discriminatory reason for

transferring Terry out of the Investigations Branch: a recommendation from Dr.
Pappas that Terry not work under supervisors with whom he'd had conflicts in
the past. Since Molerio was one of those supervisors and was also the indirect
supervisor of every special agent in the Investigations Branch, defendants claim
that in transferring Terry to the Deportation Branch, the INS was merely
following Pappas' recommendation.

67

Terry, however, has produced sufficient evidence for a reasonable fact-finder to

conclude that this rationale is merely pretextual. Specifically, Terry's evidence
suggests that his supervisors transferred him in order to induce him to resign.
Terry swore under oath that upon arriving at the deportation office, he spoke
with his new supervisor who informed him that she had no idea that he had
been reassigned to her office. According to Terry's affidavit, she then called
Robert Bronillet, a personnel management supervisor at the district office, who
stated: "you mean to say he really showed up?"

68

By comparison, we find that Terry has failed to show that the "no promotion
potential" notation on his personnel form was itself retaliatory. Defendants
explained that the INS routinely uses such notations when an employee has
reached the top of the promotional ladder for the position he or she currently
holds and can no longer be promoted non-competitively within that position.
Terry has not provided any evidence to the contrary, nor has he alleged that he

would have been eligible to receive non-competitive promotions in his former

position.
69

Since we find that a genuine issue of material fact exists with respect to
whether the transfer was retaliatory, although not as to whether the promotion
notation was retaliatory, summary judgment on plaintiff's retaliation claim was
not proper.

70

7. Alleged retaliatory denial of annual leave time

71

Although not discussed in the district court's opinion, Terry testified in his
deposition that because he was put on administrative leave, he was not able to
use his 1996 annual leave time. He testified that he therefore requested that this
leave time be "restored" so that he could use it later. This request was denied.
Terry alleges that this denial was in retaliation for his refusal to quit in response
to being reassigned to the Deportation Branch. Consistent with this allegation,
Terry testified that he was able to restore his 1995 annual leave time and that
defendants never indicated that there had been a change in policy or practice.

72

The denial of restoration of lost leave time is not sufficient to support a

retaliation claim, however, as it is legally insufficient to constitute an adverse
employment action. By the time Terry was informed of the denial on February
28, 1997, he was no longer working as he was on medical leave. He never
returned to work, allegedly because he was constructively discharged.
Therefore, there is no reason to believe that Terry would ever have had the
opportunity to use his annual leave time had it been granted.19

73

That the denial of annual leave is not sufficient to support a retaliation claim is,
however, of little practical consequence to Terry because his other evidence of
retaliation is more than sufficient to defeat summary judgment.
C. Hostile Work Environment Claim

74

In order to prevail on a hostile work environment claim under Title VII, a

plaintiff must show that "the harassment was `sufficiently severe or pervasive
to alter the conditions of the victim's employment and create an abusive
working environment.'" Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002)
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997));20 see
also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78, 118 S.Ct. 998,
140 L.Ed.2d 201 (1998) (stating that a hostile work environment is created "
[w]hen the workplace is permeated with discriminatory intimidation, ridicule,

and insult that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment"). We have
explained that "[t]his test has objective and subjective elements: the misconduct
must be `severe or pervasive enough to create an objectively hostile or abusive
work environment,' and the victim must also subjectively perceive that
environment to be abusive." Alfano, 294 F.3d at 374 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Among the
factors to consider when determining whether an environment is sufficiently
hostile are "the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
Harris, 510 U.S. at 23, 114 S.Ct. 367. In determining whether a hostile
environment exists, we must look at the "totality of the circumstances."
Richardson, 180 F.3d at 437-38. "As a general rule, incidents must be more
than `episodic; they must be sufficiently continuous and concerted in order to
be deemed pervasive.'" Alfano, 294 F.3d at 374 (quoting Perry, 115 F.3d at
149). The same standards apply to hostile work environment claims brought
under the ADEA. Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310,
318 (2d Cir.1999).
75

While the standard for establishing a hostile work environment is high, we have
repeatedly cautioned against setting the bar too high, noting that "[w]hile a
mild, isolated incident does not make a work environment hostile, the test is
whether `the harassment is of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for the worse.'"
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir.2000)
(quoting Torres v. Pisano, 116 F.3d 625, 632 (2d Cir.1997)). The environment
need not be "unendurable" or "intolerable." Id. Nor must the victim's
"psychological well-being" be damaged. Fitzgerald v. Henderson, 251 F.3d
345, 358 (2d Cir.2001). In short, "`the fact that the law requires harassment to
be severe or pervasive before it can be actionable does not mean that employers
are free from liability in all but the most egregious cases.'" Whidbee, 223 F.3d
at 70 (quoting Torres, 116 F.3d at 631).

76

Terry alleges that acts discussed previously in this opinion in relation to his
retaliation claim, along with a number of other incidents, created a hostile work
environment. For example, he also presents evidence that Adams told his coworkers not to speak to Terry; that his supervisors told co-workers that Terry
was "nuts," having a nervous breakdown, suffered from "emotional problems,"
and had made threats against INS employees; and that Ferrigno broke into
Terry's desk and purposefully discarded some of Terry's personal belongings in
order to harass him.

77

Defendants respond that these events were too sporadic and isolated to create a
hostile work environment, that Terry admitted in his deposition that he did not
perceive Adams's treatment of him as severe or pervasive and that it did not
interfere with his work, and that there is no evidence that the treatment Terry
complains about was motivated by his race or age.

78

By contrast, we find that Terry has set forth sufficient evidence to permit the
inference that he suffered from a hostile work environment. First, Terry has
alleged facts sufficient to find that the conduct of which he complains was
pervasive. While each incident on its own may not have been particularly
severe, we have explained that "a work environment may be actionable if the
conduct there is either so severe or so pervasive as to alter the working
conditions of a reasonable employee." Richardson, 180 F.3d at 440. To the
extent that the district court suggested that conduct must always be both severe
and pervasive to be actionable under a hostile work environment theory, it was
therefore mistaken.

79

Contrary to defendants' assertions, plaintiff is not complaining merely about

sporadic and isolated events, but rather about his daily working conditions.
Terry claims and his co-worker Agnes Black so testified at her deposition
that Adams and other INS supervisors purposefully harassed Terry and made
his work environment unusually and unnecessarily unpleasant on a nearly daily
basis. Indeed, Black testified that "the actions that [Adams] took against Mr.
Terry on a daily basis" led her to conclude that "Adams lived to make Jack
Terry's life hell on Earth." Black testified that there were "several incidences"
when she was told not to speak to Terry; that on one such occasion she was
attempting to discuss an INS case with Terry when Adams "came running out
of his booth and ordered me away from [Terry]" and "told me under no
circumstances was I to talk to Jack Terry"; that on another occasion Terry
summoned Black to his desk, and she observed "Mason Rhuelen [sic], who was
then a supervisor, Farrell Adams, and Charles Ferrigno standing around his
desk and all of them had their fingers pointing at him"; and that "at least on a
weekly basis," Ferrigno "had his forefinger pointing in Jack Terry's face,
standing at his desk yelling at him".

80

Second, a reasonable fact-finder crediting Terry's testimony could find that the
harassment was sufficiently severe or pervasive to alter the conditions of
Terry's employment and to create an abusive working environment. Defendants
argue that Terry failed to show that he subjectively experienced a hostile work
environment because he admitted in his deposition that he was still able to do
his job despite the alleged harassment. Defendants' suggestion that a hostile
work environment claim cannot stand where a plaintiff is still able to

successfully perform the basic functions of his or her job is without merit. See
Whidbee, 223 F.3d at 70. The question, rather, is whether the conditions under
which those tasks must be performed have been altered for the worse. Id.
Whether or not the harassment interferes with an employee's ability to work is
merely one factor to be considered when looking at the totality of
circumstances to determine whether a hostile work environment has been
created. Moreover, we note that Terry has claimed that certain forms of the
harassment (e.g., denial of firearms privileges) directly interfered with his
ability to perform his job.
81

Third, Terry has alleged facts sufficient to allow a fact-finder to conclude that
defendants' alleged hostility was based on a prohibited factor. For example,
Terry's co-worker Agnes Black testified that Adams "race-baited" and that he
treated white employees with contempt, but was warm with non-white
employees. Assuming that Black describes such statements or conduct at trial, a
reasonable fact-finder could conclude that race was a motivating factor in the
harassment. Similarly, a reasonable fact-finder could conclude, based on the
evidence, that a retaliatory motive played a role in the creation of a hostile work
environment. As discussed previously, a reasonable fact-finder could conclude
that a number of discrete adverse employment actionsfrom placement on
leave to denial of firearms privilegeswere motivated by retaliatory intent. As
this court recognized in Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir.2000),
one type of hostility can exacerbate the affect of another. Id. at 572. Here,
hostile racial attitudes could have exacerbated the affect of retaliation-based or
age-based hostility and vice versa.
D. Constructive Discharge Claim

82

Terry alleges that his eventual "retirement" was in fact a constructive discharge.
1. Timeliness

83

Defendants argue that the constructive discharge claim is not timely because
Terry failed to exhaust available administrative remedies in a timely fashion.
Defendants presume that if Terry was constructively discharged, Terry's
constructive discharge arose from his reassignment to the Deportation Branch
in 1997.

84

It is true that Terry failed to bring an EEO claim as to either constructive

discharge or the transfer to the Deportation Branch within the specified time
period. Under 29 C.F.R. 1614.105, Terry was required to bring complaints of

discriminatory treatment to the agency's EEO office within 45 days of the

alleged discriminatory act.21
85

The requirement that a claim be first raised with the EEO office, however, is
not a jurisdictional one. Boos v. Runyon, 201 F.3d 178, 183 (2d Cir.2000). As
the Supreme Court has stated, "filing a timely charge of discrimination with the
EEOC is ... a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); see also Briones v. Runyon,
101 F.3d 287, 290 (2d Cir.1996).

86

This court has treated the requirement that a federal employee bring a complaint
to his or her EEO for resolution, see 29 C.F.R. 1614.105, as analogous to the
requirement that a private sector employee first bring a complaint to the
attention of the Equal Employment Opportunity Commission ("EEOC") for
resolution. See Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir.2001)
(treating the requirement that a plaintiff exhaust her administrative remedies by
bringing a complaint to an EEO office as identical to a requirement that a
private claimant exhaust administrative remedies provided by the EEOC).

87

Where there exists a requirement that a Title VII claim first be presented to the
federal EEOC, we have recognized three situations in which claims not raised
in an EEO charge are "sufficiently related to the allegations in the charge that it
would be unfair to civil rights plaintiffs to bar such claims in a civil action": 1)
where "the conduct complained of would fall within the `scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination'"; 2) where the complaint is "one alleging retaliation by an
employer against an employee for filing an EEOC charge"; and 3) where the
complaint "alleges further incidents of discrimination carried out in precisely
the same manner alleged in the EEOC charge." Butts v. City of New York Dep't
of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir.1993) (superceded on
other grounds); see also Alfano, 294 F.3d at 381. As the administrative
exhaustion requirement is the same under the ADEA as it is under Title VII, we
find that such exceptions also apply to claims brought pursuant to the ADEA.

88

Here, Terry's claim falls within at least the second exception. 22 Terry contends
that his discharge was due, at least in part, to defendants' "retaliatory conduct,"
and most of the incidents which Terry cites as providing the basis for his
constructive discharge claim, he had previously alleged were done to retaliate
against him for his EEO complaints. As such, Terry's EEO complaints prior to
the transfer were sufficient to exhaust his administrative remedies. Indeed, to
not allow such an exception would have the perverse result of rewarding the

most egregious forms of retaliation. The more effective an employer was at

using retaliatory means to scare an employee into not filing future EEO
complaints, the less likely the employee would be able to hold the employer
liable for that retaliation because the less likely the employee would risk filing
an EEO complaint as to the retaliation. In addition, requiring a separate EEO
filing "could have the perverse result of promoting employer retaliation in order
to impose further costs on plaintiffs and delay the filing of civil actions relating
to the underlying acts of discrimination." Butts, 990 F.2d at 1402.
89

2. Waiver of claim of constructive discharge in violation of ERISA

90

In his original complaint, Terry claimed that defendants violated his rights
under ERISA, 29 U.S.C. 1140, alleging that the fact that he was not vested in
his pension was a basis for defendants' decision to constructively terminate
him. As discussed previously, the district court did not explicitly address
plaintiff's ERISA claim. However, in dismissing his constructive discharge
claim in general, it also dismissed plaintiff's claim that he was constructively
discharged in violation of ERISA.

91

Terry's brief on appeal does not mention his ERISA claim, nor does it anywhere
discuss his theory that the fact that his pension had yet to vest was a basis for
the defendants' decision to constructively terminate him. Nor was the ERISA
claim raised at oral argument. Accordingly, Terry has waived his right to
pursue this claim.
3. Evidence of constructive discharge

92

An employee is constructively discharged when his employer, rather than

discharging him directly, intentionally creates a work atmosphere so intolerable
that he is forced to quit involuntarily. Kirsch v. Fleet St., Ltd., 148 F.3d 149,
161 (2d Cir.1998); Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89
(2d Cir.1996). We have explained that working conditions are intolerable when,
viewed as a whole, they are "so difficult or unpleasant that a reasonable person
in the employee's shoes would have felt compelled to resign." Chertkova, 92
F.3d at 89 (quotations omitted). In addition, to state a prima facie case of
constructive discharge, Terry must establish that the constructive discharge
"occurred in circumstances giving rise to an inference of discrimination on the
basis of [his] membership in [a protected] class." Id. at 91. Proof of such a
causal connection "can be established `directly through evidence of retaliatory
animus directed against a plaintiff,' or `indirectly by showing that the protected
activity was followed closely by discriminatory treatment ... through other

evidence such as disparate treatment of fellow employees who engaged in

similar conduct.'" Richardson, 180 F.3d at 444 (quoting DeCintio v.
Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987)).
93

We find that Terry has presented sufficient evidence to allow a reasonable factfinder to conclude that a reasonable person in Terry's position would have felt
compelled to terminate his employment. First, as discussed previously, Terry
has made a sufficient showing for a reasonable trier-of-fact to find that Terry
was experiencing a hostile work environment which involved pervasive,
unabated harassment by his supervisors. Second, Terry testified that Adams
told him that "your days are numbered" and that Molerio told him that his
"life's over with" and that "you're going to be brought up on more charges."
Such comments would allow a reasonable person to infer that he was not
wanted as an employee and that he was going to be forced out of the INS's
employment. In addition, as mentioned previously, Terry alleges that upon
arriving at the deportation office, he spoke with his new supervisor who
informed him that she had no idea that he had been reassigned to her office, and
that when she contacted Robert Bronillet, a personnel management supervisor
at the district office, about the matter, he responded by stating: "you mean to
say he really showed up?" The import of these comments is not only in the
words themselves, but in how a reasonable person in Terry's position might
have viewed them in conjunction with the other circumstances of his
employment, and whether such a person would have felt compelled to resign as
a result. See generally, Chertkova, 92 F.3d at 89-90 (discussing similar
comments). Finally, Terry's co-worker Agnes Black testified that it was her
opinion, based on her observations and experience, that Adams was trying to
make "Terry's life so miserable he would quit", and presumably she would be
able to explain the specific basis for this opinion at trial.23

94

Second, we find that Terry has put forth sufficient evidence to allow a trier-offact to conclude that the constructive discharge occurred under circumstances
giving rise to an inference of discrimination on the basis of his membership in a
protected class. Terry does not allege that just a single event caused him to be
constructively discharged, but rather that such a discharge resulted from the
cumulative, unabated harassment that he experienced.24 As discussed
previously, Terry has set forth sufficient evidence for a reasonable fact-finder to
conclude that Terry experienced pervasive harassment in retaliation for his
EEO complaints.

95

Since Terry has put forth sufficient evidence for a trier-of-fact to conclude that
a reasonable person would have felt compelled to leave his job, and that the
conditions that would have resulted in such compulsion were the result of an

improper motive, summary judgment should not have been granted to

defendants on Terry's claim of constructive discharge in violation of Title VII
and the ADEA.
E. Punitive Damages
96

The district court denied Terry's demand for punitive damages under Title VII.
The district court was correct in concluding that punitive damages are not
available under Title VII. See 42 U.S.C. 1981a(b)(1) (prohibiting awards of
punitive damages against the federal government); Tomka v. Seiler Corp., 66
F.3d 1295, 1313-15 (2d Cir.1995) (holding that "individual defendants with
supervisory control over a plaintiff may not be held personally liable under
Title VII" and stating that "it appears that Congress contemplated that only
employer-entities could be held liable for compensatory and punitive damages"
under Title VII).

97

We note that the district court did not pass on the closely related issue of
availability of "liquidated damages" under the ADEA. C.f. McGinty v. New
York, 193 F.3d 64, 70-71 (2d Cir.1999) ("ADEA's added liquidated damages
may fairly be characterized as `punitive in nature,' . . . they do after all provide
an ADEA victim with more than his or her out-of-pocket damages or any other
strictly compensatory amounts.") Given the preliminary posture of this case and
the lack of briefing on the issue, we express no view on the availability of such
damages.25

IV. CONCLUSION
98

For the reasons stated above, we VACATE the district court's grant of
summary judgment on Terry's ADEA claims and his Title VII claim except in
so far as it is premised on gender-based discrimination, and REMAND for
further proceedings on those claims consistent with this opinion. However, we
AFFIRM the district court's grant on summary judgment on Terry's ERISA
claim. We also AFFIRM the district court's decision as to the unavailability of
punitive damages under Title VII. Finally, we award costs on appeal to
plaintiff-appellant.

Notes:
1

John Ashcroft became the United States Attorney General effective February
2001, to succeed Janet Reno. Under Fed.R.Civ.P. 25(d)(1), Ashcroft is

automatically substituted as a defendant in this action

2

In his original complaint, Terry alleged that gender was also a motivating factor
in the decision not to promote him to vacancy 93-01. However, on appeal Terry
does not raise this allegation, choosing instead to limit his claim to
discrimination on the basis of age. Accordingly, Terry has waived any
argument that the failure to promote him to that position was motivated by
gender-based discriminatory intent. Notably, the district court also did not
discuss the gender-based allegation in Terry's original complaint

There are several different recollections of this conversation by Terry in the

record. Another description is as follows: "I was told by Molerio in this
stairwell ... look at you, you're almost I don't know what he said at that time
I guess I was in my late forties at that time. You're never going to be
promoted. You're forty something. You're never going to be promoted. Look
around. Look who is being promoted. People who don't have your credentials,
your education, your background, you know."

These alleged commendations, however, are not in the record before this court

It is not clear from the record exactly what precipitated these visits, but some
years earlier in 1990 Terry had explicitly requested that the INS provide him
with mental health assistance

Specifically, McDonald stated that he made a "Tarasoff Decision." The terms

"Tarasoff decision" or "Tarasoff warning" are derived from the landmark
caseTarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal. Rptr.
14, 551 P.2d 334 (1976), in which the California Supreme Court held that when
a psychotherapist determines that his or her patient poses a serious danger of
violence to a specific person, the psychotherapist has a duty to use reasonable
care to protect the likely victim which may require him to warn that individual.

Defendants maintain that the entire Deportation Branch was not listed on that
schedule, and that therefore Terry was not singled out

The district court erroneously suggested that Terry's only evidence of

discrimination in the Vacancy 92-59 promotion decision was Terry's subjective
belief that he was more qualified. The district court also stated that no
derogatory comments about race or age were alleged, and suggested that
derogatory comments are necessary to show pretext. We note that we have
never held that derogatory comments are required to show pretext, although
certainly such comments might be evidence of pretext

Defendants argue that plaintiff's argument that the Caucasian notation is

evidence of discrimination is mistaken because the personnel specialist who

compiled the list averred that she did not know the race of any of the applicants
before creating it. Defendants contend that plaintiff has not introduced evidence
contradicting this averment. To the contrary, the notation itself is evidence that
a reasonable trier-of-fact could find to be contradictory of the personnel
specialist's version of the facts
10

The fact that he was placed on the BQL for the position also indicates that the
INS believed him to be at least minimally qualified

11

Of course, if Terry's alleged reputation for being quarrelsome were shown to be

based on his tendency to file non-frivolous EEO complaints, the existence of
such a reputation could not be a legitimate, non-discriminatory rationale for not
promoting him

12

We note that the fact that Terry's EEO complaint might not have been the only
reason why he was not hired does not change our analysisSee Desert Palace,
Inc. v. Costa, ___ U.S. ___, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003); Gordon v.
New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000).

13

The record does not contain any evidence of an INS policy requiring or
recommending such a suspension

14

The record does not contain any evidence as to the existence or nature of INS
policies regarding firearm qualification requirements

15

The district court inexplicably credited this version of events even though Terry
had offered evidence that the only reason he was not allowed to go to the range
was his "ongoing pending action."

16

Charles Ferrigno, Chief of the Criminal Aliens Processing Section, allegedly

explained the restriction to Terry as follows: "you need to take public
transportation to the office. In other words, you cannot hitch a ride with other
agents."

17

While the defendant's burden is "one of production, not persuasion" and

therefore this court cannot undertake a credibility assessment, the defendant
must offer evidence sufficient for the trier-of-fact to conclude that the proffered
reason was the actual cause of the complained of adverse actionSee Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000).

18

This alleged harassment is discussed in depth in section III(C) infra

19

There is no indication in the record that such leave time could have been
"cashed out" upon the termination of Terry's employment

20

To prevail on a hostile work environment claim against the INS, Terry must
also show that there is a specific basis for imputing the conduct he complains
of to the INSRichardson, 180 F.3d at 440-41. However, an employer is
presumed to bear absolute liability in cases where, as here, the harassment is
perpetrated by the victim's supervisor, although an employer may interpose an
affirmative defense to rebut that presumption. Id. Since Terry maintains that the
harassment was perpetrated by his supervisors, and the INS has offered no such
defense, Terry has satisfied the requirement that he show a specific basis for
imputing the conduct to the INS.

21

The assignment to the Deportation Branch was made December 17, 1996 and
Terry began work on January 2, 1997. Defendants urge that the EEO complaint
for constructive discharge should have been filed within 45 days, either by
January 31, 1997 or, at the latest, by February 17, 1997. However, after that
assignment, Terry did not file a claim of discriminatory retaliation and
harassment until April 2, 1997, and did not file one for constructive discharge
until March 20, 1998

22

We therefore need not consider whether the other exceptions might apply

23

We note that the mere fact that Adams was no longer Terry's direct supervisor
at the time Terry's employment ended does not mean that a reasonable factfinder could not conclude that his actions contributed to Terry's alleged
constructive discharge

24

This is sufficient to state a valid claim for constructive discharge. InChertkova,

92 F.3d at 90, we recognized that a constructive discharge claim can be
premised on the cumulative affect of a number of adverse conditions in the
workplace.

25

Several courts have held that such damages are not available against the federal
governmentSee Smith v. Office of Pers. Mgmt., 778 F.2d 258 (5th Cir.1985);
Gibbons v. Burnley, 737 F.Supp. 1217 (D.Me.1990); Grandison v. United
States Postal Serv., 696 F.Supp. 891, 896 (S.D.N.Y.1988).