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DEWALD v. AMSTERDAM HOUS. AUTH.

June 4, 1993

SUZANNE BORDWELL DeWALD, Plaintiff,
v.
AMSTERDAM HOUSING AUTHORITY, JOHN RICCIO, NELLIE ORSINI, LILLIAM RIVERA and BONNIE PAGE, Individually and as Members of the Board of Directors of the AMSTERDAM HOUSING AUTHORITY, Defendants.



The opinion of the court was delivered by: NEAL P. MCCURN

 MEMORANDUM-DECISION AND ORDER

 Plaintiff commenced this action in October, 1991 against the Amsterdam Housing Authority ("AHA") and four members of the AHA's board of directors, alleging that these defendants terminated her employment as the AHA's Executive Director based upon her age and sex in violation of federal and state law. Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e (1988), and sections 296 and 297 of the New York State Executive Law. Jurisdiction is based upon the existence of a federal question, 28 U.S.C. § 1331 (1988). Presently before the court are defendants' motions for summary judgment or, in the alternative, to preclude plaintiff's introduction of certain witnesses and testimony at trial. *fn1"

 I. BACKGROUND

 The AHA is a public corporation organized pursuant to N.Y. Pub. Hous. Law § 428 (McKinney 1989) for the purpose of managing public housing facilities in Amsterdam, New York. The AHA has a seven member board of directors; five board members are appointed by the mayor of Amsterdam for five year terms, and the remaining two members are elected by tenants of the AHA's facilities to two year terms. See id. § 30. The board is charged with, inter alia, selecting and employing a "Housing Project Manager." See By-Laws of Amsterdam Housing Authority (hereinafter "By-Laws") art. VI. The AHA states that the title "Housing Project Manager" has been replaced by use of the current title for that position, "Executive Director." See Letter from Pamela A. McMahon to Court (Apr. 28, 1993) at 1 (docket entry #40).

 In February, 1987, the board voted 5-1 to hire plaintiff Suzanne Bordwell DeWald, then twenty-five years old, to serve as the AHA's Executive Director. *fn2" The only board member who did not vote in favor of plaintiff was defendant Riccio. Riccio cast his vote instead for Karen Cunningham, another applicant for the Executive Director position. None of the other individually-named defendants were members of the board in February, 1987, when plaintiff was hired. They, however, joined the AHA board at various times during plaintiff's tenure as Executive Director.

 The voluminous record shows that plaintiff's association with the AHA board, and these defendants in particular, was tumultuous at best. The parties have detailed the hostility that plagued the relationship between plaintiff and defendants. Most notably, meetings were marked with name-calling and back stabbing. An air of distrust and bitterness enveloped the board and plaintiff. According to defendants, the tension stemmed from various board members' dissatisfaction with plaintiff's handling of tenant concerns and the contempt with which she allegedly treated board members who disagreed with her. Judicial economy prevents the court from repeating every instance of insubordination and unprofessionalism alleged in defendants' approximately 1,000 pages of submissions. Examples of questionable conduct included three occasions on which plaintiff allegedly interfered with the nominating process for new board members by contacting the mayor to express her opposition to certain appointments. See DeWald Dep. at 104, provided in Def. exh. "J". Also, several tenants complained to their state assemblyman about plaintiff's insensitivity to the needs of disabled tenants, making specific reference to the AHA's lack of handicapped accessible housing. Id. at 266-73. Defendants contend that in the later days of her tenure as Executive Director, plaintiff was especially contemptuous toward board members who opposed her, describing in a local newspaper some of their positions as "focusing on the inane," "absurd," and part of a "petty game." See Def. exh. "H" (copies of newspaper articles quoting plaintiff). Underlying the entire conflict, argue defendants, was a general personality conflict between Riccio and plaintiff that turned political in nature and ultimately cost plaintiff her job. On July 23, 1990, the board voted to terminate plaintiff's employment.

 Plaintiff, not surprisingly, offers a widely divergent version of the circumstances that precipitated her termination. She alleges that the board acted based upon certain members age-based and sex-based animus toward her. Most of her allegations in this regard are directed at Riccio, who from the beginning of plaintiff's employment openly expressed his displeasure with the presence of a young woman as Executive Director. Plaintiff recounts one meeting with Riccio during which he allegedly made his feelings known:

 
On January 30, 1988[,] John Riccio entered my office unannounced and I asked him if he had any concerns regarding my performance. He stated that he did not. I then informed him that I received phone calls from several other Board members indicating that he had expressed concerns about my performance to them. I told him that if he had any problems or concerns regarding my behavior that he should speak to me first. Mr. Riccio became incensed and demanded to know "who squealed" and at that time he got up from his chair and began stalking around my office calling me "dearie" and "sweetie" and how dare a "young girl" like me question him. Mr. Riccio made at least 2 unannounced visits to my office and repeated his tirade, demanding to know "who squealed on him." Mr. Riccio tried very hard to intimidate me through verbal attacks and, in a menacing manner, positioned himself near me during the tirade.

 DeWald Aff. (2/19/93) P 18. On another occasion, in late 1989, the board undertook discussions concerning salary increases for various staff members, including plaintiff. During those discussions, Riccio allegedly commented to other board members who would be voting that "a young girl like [plaintiff] had no business making that kind of money." Id. P 29.

 The tension between plaintiff and the AHA board, and Riccio in particular, peaked at a meeting of the board on July 23, 1990, when the board voted 4-3 to terminate her employment. Defendants Riccio, Orsini, Page and Rivera voted in favor of termination. In urging his fellow board members to vote to fire plaintiff, Riccio allegedly referred to her as an "immature girl," and upon seeing plaintiff after the vote, Riccio allegedly said, "come on, let's be a big girl about this." DeWald Aff. P 32. Plaintiff contends that Riccio's discriminatory attitude toward her sex and age was a substantial factor motivating the board's decision to terminate her employment.

 Plaintiff recognizes that Riccio was just one voting member of the AHA's seven-member board and that his vote alone would not have been enough to cause her termination. Plaintiff maintains, however, that Riccio was an influential member of the board who, when assisted by a second board member's discriminatory motive, held enough leverage to sway sufficient votes in his favor to effect plaintiff's termination. The second board member, contends plaintiff, was defendant Orsini. According to plaintiff, Orsini's impermissible motive was evidenced most clearly by assertions that Orsini made after the vote to terminate plaintiff's employment. Orsini justified her vote to fire plaintiff by reminding tenants who had gathered to support plaintiff that "some of you . . . [who now support plaintiff] came to me with problems-- she was too young, we needed a man or someone with more experience." Def. exh. "H"; accord DeWald Aff. P 30. Orsini's comments were quoted in an Amsterdam newspaper the day after the meeting. See Def. exh. "H" (newspaper article quoting Orsini). Plaintiff alleges that Orsini's independent animus based upon plaintiff's age and sex, coupled with Riccio's leverage over two other board members, created the four votes necessary to seal her fate.

 With respect to Riccio's influence over other board members, plaintiff has presented uncontradicted evidence showing that Riccio, in addition to serving on the AHA board, was also a board member of the Independent Living Center in Amsterdam and that defendant Page was the Independent Living Center's Executive Director. Hence, submits plaintiff, inasmuch as Riccio held some discretion with respect to Page's career and salary, Page was conceivably coerced by fear of retaliation to vote with Riccio on this highly publicized battle for control. Significantly, Orsini was also a member of the Independent Living Center's board of directors and thus wielded similar influence over Page. Finally, plaintiff implicitly contends that defendant Rivera was an AHA tenant who needed Riccio's and Orsini's support in her own eviction proceeding against the AHA and therefore similarly feared that she would suffer personally if she did not obey Riccio's request to vote against plaintiff. By falling in line to follow Riccio's and (to a lesser extent) Orsini's vote to terminate plaintiff's employment, argues plaintiff, these remaining board members unlawfully acted in concert with Riccio's discriminatory scheme.

 In October, 1990, plaintiff filed with the New York State Department of Human Relations ("DHR") a complaint against the AHA and Riccio, claiming that they had wrongfully terminated her employment on the basis of her age and sex. She withdrew her complaint six months later, in April, 1991, and commenced this action pursuant to Title VII of the Civil Rights Act of 1964 and New York State Executive Law.

 II. DISCUSSION

 A. Summary Judgment

 Defendants assert several arguments for why summary judgment should be granted. Defendants can prevail on their motion for summary judgment by establishing that there exists no genuine issue of material fact and that they are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. To withstand the motion for summary judgment, plaintiff need only show that there exists a factual dispute as to her ability to prove her prima facie case. Fed. R. Civ. P. 56(c); Levin v. Analysis & Technology, Inc., 960 F.2d 314, 316 (2d Cir. 1992). If plaintiff successfully shows the existence of such a factual dispute, then resolution of that dispute must be reserved for the trier of fact and summary judgment would be inappropriate. Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991) (citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988)). With this standard as background, the court discusses defendants' arguments seriatim.

 1. Claim under N.Y. Exec. Law § 296

 As previewed above, plaintiff claims that she is entitled to relief pursuant to section 296 of the New York Executive Law. *fn3" That section states, in pertinent part:

 
1 It shall be an unlawful discriminatory practice:
 
(a) For an employer or licensing agency, because of the age . . . [or] sex . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in ...

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