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ALMENDRAL v. NEW YORK STATE OFFICE OF MENTAL HEALT

July 29, 1983

SONYA A. ALMENDRAL, Plaintiff, against NEW YORK STATE OFFICE OF MENTAL HEALTH, et al., Defendants.


The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

Plaintiff, Sonya A. Almendral, a brown-skinned naturalized American citizen of Filipino origin, commenced this employment discrimination action against the New York State Office of Mental Health, the New York State Department of Civil Service, the Manhattan Psychiatric Center ("MPC"), the Kingsboro Psychiatric Center ("KPC"), Dr. Gabriel Koz, John Frangos, L. Smith, Morton B. Wallach, Helen Houston and Edwards Weeks, Jr., alleging that defendants viiolated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2,3 (1976) ("Title VII"), 42 U.S.C. § 1981 (1976), 42 U.S.C. § 1983 (Supp. III 1979), the fourteenth amendment, the New York State Constitution and New York's Civil Service Law, Civil Rights Law and Executive Law, in that they discriminated against her because of race and national origin. *fn1" She seeks a declaratory judgment that she was entitled to be named Chief of Mental Health Treatment Services at MPC as early as July of 1978, as well as an award of back pay, damages for mental and emotional suffering and reasonable costs and attorney's fees.

 Plaintiff first obtained employment at MPC in 1969 as a psychiatric social worker. Depositon of Sonya Almendral at 4. After three months she was promoted to Social Worker Supervisor and, in 1974, she was promoted to the position of Mental Hygiene Treatment Team Leader. Id.

 On September 10, 1977 New York State gave two qualifying examinations for the position of Chief of Mental Health Treatment Services ("Unit Chief"), a promotional examination for persons, such as plaintiff, who were already employed and in civil service line for promotion, and an open competitive examination for others desiring the position. *fn2" Tr. at 14-15; see N.Y. Civ. Serv. Law §§ 51, 52 (McKinney 1983). The tests were identical. Tr. at 23. Plaintiff took the promotional examination, scoring 80.6% for a rank of 19th on the promotion eligible list.Plaintiff's Exhibit 5 (hereinafter "Ex. "). Both lists were certified on May 3, 1978. See Affidavit of William P. Gleason, Answer 9a, 9b (hereinafter "Gleason Affidavit").

 Pursuant to New York's Civil Service Law appointments are made in the following manner. At the request of an agency with a vacancy, or upon the appointment of an acting, temporary or provisional employee, or in the event that a non-permanent incumbent already is placed in an available position, eligible lists, that is, lists of persons who have passed the promotional and open competitive qualifying examinations, are certified to the agency. See N.Y. Civ. Serv. Law § 60; N.Y. Admin. Code tit. 4, § 4.1 (1983); Gleason Affidavit, Answer 12b. The persons on the lists are then canvassed by the agency to ascertain whether they wish to be considered for the vacancy at the facility. Tr. at 208-09, 271, 305-08.

 Generally, the promotion eligible list is canvassed first. Id. Those persons who express an interest in accepting the position are interviewed and, following the interviews, final lists of acceptors are prepared. Tr. at 271. If there are at least three acceptors on the promotion eligible list, the appointing authority must appoint one of the three highest ranking persons on that list or leave the position vacant ("Rule of Three"). *fn3" N.Y. Civ. Serv. Law § 61; N.Y. Admin. Code tit. 4, § 4.2; Tr. at 183-84; see D'Amico v. Leonard, 64 A.D.2d 626, 628, 406 N.Y.S.2d 876, 878 (2d Dep't 1978). If, however, there are less than three acceptors on the promotion eligible list, the appointing authority may select any of the three highest ranking acceptors from the open competitive list. Tr. at 277; see 1957 Op. Att'y Gen. 193-94.

 Plaintiff was first canvassed for promotion in July of 1978, at which time there were four Unit Chief vacancies at MPC, at least some of which were filled by non-permanent appointees. Tr. at 162, 184-88. Of those persons on the promotion eligible list who were canvassed, ten indicated a willingness to accept the position plaintiff sought. Tr. at 272. Of those ten, plaintiff was ranked fourth and was not required to be considered pursuant to the Rule of Three. Id. at 272; N.Y. Civ. Serv. Law § 61.1; N.Y. Admin. Code tit. 4, § 4.2(a). In any event, none of the top three acceptors was chosen and all four positions remained vacant. Tr. at 184, 187.

 Plaintiff was next canvassed for promotion at MPC in November or December of 1978. Tr. at 49-50. The promotion eligible list certified to the MPC by the Department of Civil Service contained twelve names. Tr. at 273.Of those twelve, only two persons, including plaintiff, indicated a willingness to accept the position. Defendant's Ex. B. Since there were less than three acceptors on the promotion eligible list, defendants selected Gayla Blackwell, a black woman from the open competitive list. Tr. at 207, 274-75.

 Plaintiff contends, however, that defendants engaged in conduct which was designed to insure that there would be less than three acceptors on the promotion eligible list. More particularly, she alleges that Dr. Koz, Director of MPC, asked James Amorese to decline to accept the position so that he could reach Gayla Blackwell on the open competitive list. Tr. at 232-33, 235. Plaintiff also contends that the agency failed to reschedule a canvass interview for Margaret Marks, whose canvass interviewer did not appear at the appointed time, notwithstanding the fact that Ms. Marks had requested it to do so. Plaintiff's 9(g) Statement and Memo of Law at 2-3; see Plaintiff's Ex. 36; Tr. at 486-87.

 Following the second canvass in 1978, plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") on March 22, 1979 and with the New York State Division of Human Rights ("NYSDHR") on May 11, 1979, alleging that she had been denied the promotion because of her national origin. Tr. at 140-42; Plaintiff's Ex. 10.

 On April 17, 1979, shortly after she filed her discrimination charges with the EEOC and the NYSDHR, plaintiff was appointed to a Unit Chief position at KPC for a twelve-week probationary period. Pre-Trial Order at 3; Tr. at 197; Amended Complaint, para. 6; see generally N.Y. Civ. Serv. Law § 63. During that time, she received two unsatisfactory performance evaluations. Defendants' Exs. H, I.

 Following the second unsatisfactory evaluation plaintiff again filed charges with the EEOC and the NYSDHR, alleging that she had been harassed and intimidated in retaliation for filing the original charges. Plaintiff's Ex. 12; TR. at 142-45. Plaintiff was terminated from her Unit Chief position at KPC at the close of her probatonary period. See Tr. at 71.

 On July 29, 1979, shortly before she was terminated, plaintiff requested that her name be restored to the promotion eligible list for all facilities. Tr. at 74; Plaintiff's Ex. 13. Following her termination at KPC, she returned to her position as Team Leader at MPC. See Tr. at 78-79. Although a vacancy for a Unit Chief existed at MPC in August or September of 1979, plaintiff's name was not restored to the list for that facility until January of 1980. *fn4" Tr. at 79; Defendants' Ex. G. In the interim, James Amorese, a white Italian who ranked 35th on the promotion eligible list, was appointed to the position. Plaintiff's Ex. 5.

 Plaintiff was next canvassed for promotion in March of 1981. Tr. at 89. While she was among the three highest ranking acceptors from the promotion eligible list and, therefore, qualified to be considered under the Rule of Three, defendants appointed Margaret Marks, a white woman, who was one of the top three acceptors and ranked 17th on the promotion eligible list. *fn5" Tr. at 89-90; Plaintiff's Ex. 5. ...


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