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March 25, 1982

Barbara Crum NEALE, Plaintiff,
Denis DILLON, District Attorney of the County of Nassau, in his official capacity, Defendant

The opinion of the court was delivered by: PRATT


Plaintiff Barbara Crum Neale, a former assistant district attorney (ADA) in the Nassau County district attorney's office, brought this Title VII action claiming that, during her tenure as an ADA, she was discriminated against because of her sex, in violation of 42 U.S.C. § 2000e-2. The specific acts of discrimination alleged are: (1) that although plaintiff performed the duties of a deputy bureau chief, she did not receive the salary commensurate with that position; (2) that although she had requested and was qualified for a promotion to deputy bureau chief of the district court bureau, District Attorney Denis Dillon appointed a male to fill that position; and (3) that after having served in a supervisory capacity for several years, she was transferred to the appeals bureau in a non-supervisory capacity. She further alleges that the transfer to the appeals bureau was a retaliatory measure taken after she had indicated to one of Dillon's assistants that she contemplated bringing a lawsuit. Finally, she claims that a combination of circumstances made her position intolerable and that, therefore, the district attorney's actions amounted to a constructive discharge based on discriminatory reasons in violation of 42 U.S.C. § 2000e-2(a)(1).

 Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights on October 5, 1978. On December 4, 1979, plaintiff received a right-to-sue letter from the EEOC. She then commenced this action which was initially assigned to Judge Nickerson. In July, 1981, the case was reassigned to the undersigned who tried it, sitting without a jury, on ten separate dates between October 23 and November 23, 1981. Counsel for plaintiff and defendant submitted post-trial memoranda in December, 1981.

 The court has carefully reviewed the testimony of the 18 witnesses who testified at trial, the exhibits admitted into evidence, and the arguments made by counsel, both at trial and in their pretrial and posttrial briefs. This memorandum constitutes the court's decision in accordance with FRCP 52.


 Certain facts are uncontested, although as in any lawsuit counsel disagree as to the proper interpretation to be given those facts. Barbara Neale was employed as an ADA in the Bronx County district attorney's office from summer, 1972 to January, 1975 when she was hired in Nassau County by defendant Dillon, then a newly elected district attorney. For a period of two months, until March 14, 1975, she was assigned to the appeals bureau, and was then transferred to the county court bureau, where she served as a trial attorney in that bureau for a year.

 In March, 1976, Neale was given the position of "trial supervisor" in the district court bureau. Her duties, as described by defendant Dillon, were to train, counsel, assist, and evaluate the young ADAs in that bureau. Neale served as a trial supervisor for approximately two years, during which time she was assigned a private office. She received no unfavorable written evaluations of her performance while she was a trial supervisor, and during 1977 she received pay increases totaling approximately $ 8,500.

 As trial supervisor, Neale was directly responsible to the bureau chief of the district court bureau. At that time the district court bureau did not have a deputy bureau chief. In the summer of 1977, bureau chief John Kase requested that Neale be given the title of deputy bureau chief and the salary commensurate with the position. The request was denied.

 Plaintiff began an approved maternity leave on March 27, 1978. On April 18, 1978, Ronald Schoenberg was appointed to the position of deputy bureau chief of the district court bureau, a position Dillon decided to create sometime in early 1978. Neale's office was turned over to Schoenberg, and all of Neale's property was removed from the office and left in a shopping cart in the hall. There was no evidence that Dillon was aware of this incident at the time it occurred. Plaintiff learned of this change through telephone calls from ADAs in the office, but received no official communication concerning it. When Neale returned to work on May 8, 1978, she and the district court bureau chief, Patrick Guiney, searched together for an office for her and eventually displaced one of the young ADAs from his desk. At the beginning of June, Neale was told that she was to be transferred to the appeals bureau in a nonsupervisory position. She claimed that her position was intolerable and that she had no alternative but to resign, which she did, in writing, on June 14, 1978.

 It should be noted that counsel for defendant did not attempt to defend the manner in which plaintiff was displaced from her office. He admitted in his opening statement that this particular treatment of Neale was "tacky" and expressed defendant's regret that it had occurred. He denied, however, that it in any way constituted discrimination on the basis of sex.

 Certain facts are contested by the parties. For the purpose of clarity, the court will treat separately each of the allegedly discriminatory acts that plaintiff claims entitle her to relief.


 Plaintiff's Claim for Equal Pay.

 Plaintiff contends that during the two year period that she held the position of trial supervisor of the district court bureau, she performed the duties of a deputy bureau chief but did not receive a salary commensurate with that position. She claims that this disparity was due solely to the fact that she was a woman. To lend credence to her claim, she points to the fact that from January, 1975, when Dillon took office, until May, 1980, she was the only female in the district attorney's office with a supervisory title. Further, Neale states that she did not receive the salary that the male deputy bureau chiefs in other bureaus received during the period Neale served as trial supervisor.

 The Supreme Court recently reaffirmed the fact that a claim of discrimination in compensation may be brought under either Title VII or the Equal Pay Act. County of Washington v. Gunther, 452 U.S. 161, 101 S. Ct. 2242, 68 L. Ed. 2d 751 (1981). Although the court in Gunther addressed itself to the issue of whether the four affirmative defenses of the Equal Pay Act are incorporated into Title VII, an issue not directly before the court in this case, there can be no question that plaintiff, in alleging that she performed work equal in terms of skill, effort, and responsibility to the higher paid position, presents a claim under Title VII for wage discrimination due to sex.

 However, at trial, plaintiff did not establish a case of wage discrimination. Since the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII, 42 U.S.C. § 2000e-2(a)(1) both prohibit wage discrimination, courts have not hesitated to rely on decisions interpreting the Equal Pay Act when they are considering equal pay claims asserted under Title VII. See e.g., Gunther v. County of Washington, 623 F.2d 1303, 1309 (CA9 1979), aff'd, County of Washington v. Gunther, supra; Hays v. Potlatch Forests, Inc., 465 F.2d 1081, 1083 (CA8 1972). To establish a case under the Equal Pay Act, the plaintiff must show that workers of one sex were paid more than workers of the opposite sex for equal work. See Katz v. School District of Clayton, Missouri, 557 F.2d 153, 156 (CA8 ...

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