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January 16, 1993



The opinion of the court was delivered by: THOMAS J. MCAVOY


 In this employment discrimination case Ms. R. Penelope Phillips (Plaintiff) brings five causes of action against her former employer, General Dynamics Corporation. She claims that she was discriminated against on the basis of her gender and age during her tenure with General Dynamics, and that this discrimination resulted in her constructive discharge.

 The first cause of action alleges a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.. The second cause of action alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Finally, the third cause of action alleges a violation of New York State Executive Law § 296. In this motion Defendants seek an order granting them summary judgment on the entire complaint.

 This motion came to be argued before the court on January 11, 1993. Plaintiff has dropped her fourth and fifth causes of action, and in a decision rendered from the bench the court dismissed the third cause of action. Having considered the submissions of the parties and the arguments advanced by counsel on January 11, this constitutes the court's decision on the remainder of Defendants' motion.


 Plaintiff began working for General Dynamics Electric Boat Division on June 8, 1987. Previously, she had been working as a senior contract administrator for Virginia Power at a salary of $ 45,500.00 per anum. When she joined Defendant her salary was $ 41,000.00 per anum. She was hired by James Barney, as a purchasing agent to run the Off-Hull Section of the Purchasing Department. Barney was her supervisor. She had considerably more experience than her counterpart in the On-Hull Section of the Purchasing Department, Ted Hurlock; and Mr. Hurlock was younger than Plaintiff. According to Plaintiff, the work was to be divided equally between the On-Hull and Off-Hull groups.

 Plaintiff claims in her affidavit that Hurlock was assigned a staff with more experience than the staff assigned to her control. In addition, Plaintiff avers that the work was not distributed equally. Instead, she claims that she received a much larger percentage of the work than did Mr. Hurlock. In support of this claim, Plaintiff has supplied the court with evidence of the work load disparity. Moreover, Plaintiff maintains that in Barney's absence Hurlock was given defacto responsibility for the assignment of duties, while Plaintiff was only rarely given this responsibility. Overall, Plaintiff argues that the overwhelming majority of work was given to her and her staff, and that the dearth of responsibility was given to Hurlock.

 During her first year with Defendant, Plaintiff maintains that she received nothing but praise from her supervisor. However, when the employees were ranked, Mr. Hurlock was ranked number one and Plaintiff was ranked number two. Although raises were not given to anyone in the department, Barney was given $ 3,500.00 to distribute as awards to the employees under his supervision. Hurlock received $ 2,500.00, Plaintiff only received $ 1,000.00, and Arthur Foo, a buyer in Mr. Hurlock's department received $ 2,000.00. Plaintiff complained to her supervisor who, according to Plaintiff, indicated for the first time that he was disappointed in her performance. She alleges that he stated "maybe I made a mistake. Do you want me to take the raise back? If you don't like it, you can quit."

 After this incident, Plaintiff began to search for work elsewhere. On November 29, 1988 Plaintiff tendered her resignation to Barney, effective January 3, 1989. However, after tendering her resignation Plaintiff had a conversation with Fred Miller, the Site Manager for the Electric Boat Division. He told her that he did not want to lose a good employee and that he wanted her to stay. Furthermore, he told her that he would look into the problem, and try to find her a position elsewhere. On her last day, January 3, 1989 Plaintiff was notified by Lloyd Higgins in the Refueling Department that there was a position for her in that area.

 Plaintiff maintains that she was told by Van Athanas, the Human Resources Director that there would be no immediate increase in pay, but that she would be eligible for a raise in July of that year. Because of the fact that she had tendered her resignation, Plaintiff was listed as terminated and she did not receive her first paycheck. For reasons which are unclear, Mr. Athanas delayed signing Plaintiff's authorization until March 3, 1989. Plaintiff argues that this delay is further evidence of discrimination. The authorization was then sent to Groton, Connecticut for review by Robert Nardone, Manager of Salary and Administration. Nardone was not officially notified of the transfer until March 26, 1989. This is significant, because as a result of this delay Plaintiff was not eligible for a July raise or a lump sum award. Consequently, with the exception of the lump sum award of $ 1,000.00, Plaintiff had completed two years without a single raise.

 According to Plaintiff's affidavit, while she was in the Refueling Department Kathy Caval, a subordinate employee, informed her that Plaintiff's position would require exposure to radioactive shipments. Plaintiff claims that she was told that while she would only receive a one day training class, other members of the department would receive a week long intensive course on dealing with the radioactive material. Plaintiff believed that this position was dangerous, and resigned effective August 11, 1989. There is no question that Ms. Caval was not a management level employee.

 Plaintiff filed a complaint with the New York State Human Rights Division. This complaint did not mention the radioactivity conversations as a basis for her allegations of discrimination. However, this issue was fairly presented to the Human Rights Division in papers subsequently filed prior to the determination. As of the date of ...

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