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July 3, 1995


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

 Plaintiff Hannelore Passonno filed this action pursuant to Title VII of the Civil Rights Act of 1964 (hereinafter "Title VII"), as amended 42 U.S.C. § 2000(e) et seq. The plaintiff alleges that she was discharged from her position as an Associate Director of International Student Services at the State University of New York at Albany on the basis of her sex. She further alleges that her sex was the motivating factor in the University's determination not to give her certain "bumping" rights.

 The matter of Passonno v. State University of New York at Albany, 889 F. Supp. 602, 93-CV-1415, was tried without a jury on May 9, 1995. This Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.


 Plaintiff Hannelore Passonno (hereinafter "plaintiff") was employed by the State University of New York at Albany (hereinafter "the University") upon her graduation from the same institution in 1969. She started out as an Assistant to the Director of International Programs and, in 1986, progressed to the position of Assistant Director of International Programs. In the latter position, plaintiff was mainly in charge of coordinating the University's international study programs which the University had in conjunction with universities abroad. Since plaintiff was German born and spoke three languages either fluently or proficiently, plaintiff had the ideal skills for her position.

 During plaintiff's tenure in the International Programs department, she served under several directors without any incident. This was true until Alex Shane became the Director in 1981. Although the period of 1981 to 1983 was uneventful, problems with Mr. Shane started in 1983, when he had to go to Moscow on business. In Mr. Shane's absence, his secretary, who also served as the office secretary, refused to take orders from the plaintiff who was put in charge of the office in Mr. Shane's absence. Plaintiff attempted to contact Mr. Shane in Moscow to inform him of the problems she was having with his secretary, but such attempts were not successful. After exhausting all possibilities, plaintiff finally approached Mr. Shane's superior, Mr. Simon, to inform him of the difficulties plaintiff was experiencing with the secretary. In turn, Mr. Simon told the secretary to do her job and take orders from the plaintiff.

 Upon Mr. Shane's return from Moscow, Mr. Shane was apprised of the situation in the office and was very upset at plaintiff for "going over his head." Mr. Shane thought the problem should have been resolved without involving Mr. Simon, and blamed plaintiff for not handling it herself. With this incident, plaintiff's professional career with the University was forever altered.

 From the above-mentioned incident in 1983 and until 1988, Mr. Shane did various things to make plaintiff's life miserable, including putting plaintiff on a time clock when no other professionals were required to do so, requiring a doctor's note for any sick days taken by plaintiff, requiring plaintiff to follow a different disbursement procedure for business trips, and letting other more junior people in the office oversee all of plaintiff's work. Moreover, there was an incident in the office where Mr. Shane had assaulted the plaintiff by grabbing her and putting her against the wall while slurring profanities at her. Grievances based on these incidents were filed on behalf of the plaintiff by the Union representing her.

 In February of 1988, plaintiff was transferred from her position to a two part position: clerical work in the Center for Teratology where she worked in the morning and a similar position in the Office of Research where she worked in the afternoon. The two positions were physically located in different buildings. The Union again filed a grievance on plaintiff's behalf. In April of the same year, plaintiff was yet again transferred to the Office of International Student Services as the Associate Director. This position was created especially for the plaintiff, and in this position, she aided foreign student studying in the University with matters relating to immigration, assimilation and others. The Director for this office was Steven Thompson, and unlike the relationship plaintiff had with Mr. Shane, her relationship with Mr. Thompson was amicable. In fact, Mr. Thompson gave plaintiff glowing evaluations for her performance.

 In 1991, New York State, not unlike the rest of the country, was faced with difficult financial times. For the 1991-1992 fiscal year, the State had to cut costs, and the State University system was no exception. More specifically, the State University of New York at Albany was forced to retrench certain positions in order to meet its 1991-92 fiscal budget.

 The Vice Presidents within the University were given the responsibility of determining which positions to retrench within their respective areas. Since plaintiff served under the Vice President for Student Affairs, the Court's findings of fact will focus within that area.

 Within Student Affairs, a select number of individuals commonly referred to as the "cabinet" were put in charge of proposing possible functions for retrenchment. The term "functions" is used because it is important to note that the cabinet looked into functions instead of individuals when making their determination. Only after determining which functions to retrench, did the cabinet know which individuals would be affected by the determination. The cabinet first looked to retrench functions which were vacant and/or temporarily assigned. The cabinet also attempted to realign positions so that some functions may be moved into revenue producing areas. After that, the cabinet prioritized which functions were considered essential. For example, certain service functions which the cabinet thought were not critical to the operation of the University, and more specifically Student Services, were retrenched -- i.e. conferencing services.

 After careful consideration, it was determined that five positions were to be retrenched within Student Affairs: four professional positions and one classified position.

 After the process of retrenchment was finalized, the Chancellor of the State University system or his designee starts the process of determining the individual "programs" for the retrenched employees in accordance to the collective bargaining agreement between the University and the United University Professions union, which is affiliated with the New York State United Teachers. The agreement gives the Chancellor or his designee great latitude in making this determination. Within the University, the President is designated as the Chancellor's designee. In turn, the President heavily relies on the recommendations made by the person in charge of the labor relations under the collective bargaining agreement, Stephen Beditz.

 The determination of one's "professional program" is crucial since one's program determines his or her bumping rights within that program. For example, if an employee's professional program is determined to cover a great area, then the pool of employees subject to bumping rights based on seniority would be greater, thus enhancing the retrenched employee's likelihood to bump. Whereas, if the employee's program is determined to cover only a very limited area, then the likelihood of the retrenched employee being able to bump is likewise limited since the probability of there being an employee more junior to that of the retrenched employee is significantly reduced. Factors considered to determine an employee's professional program include the performance program of the employee, the reporting line of the employee, the physical location of the employee's function, the employees's position on the Functional Organization Chart, and others.

 Plaintiff's professional program was determined to be the Office of International Student Services. Plaintiff's designation was very restrictive since there were only two employees within this program -- the Director of the Office and the plaintiff. Since ...

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