is not worthy of credence. Hansen, through pleadings and deposition testimony, has presented evidence that Chief Frey was aware of Hansen's status as a reservist, was concerned about the effect the temporary loss of a high ranking officer would have on his department, and expressed this concern to his supervisor and members of the town board. See, Depositions of Chief William Frey, 54-56, 75-76; Paul Hansen 296-299; Councilman Robert H. Quinn, 434-437; Lt. David Grossi, 555-556. Such evidence, examined in the light most favorable to the plaintiff, suggests that discrimination could have been a motivating factor in the town's decision making process.
Plaintiff also offers indirect evidence that Chief Frey rarely recommended an officer for promotion who was not first on the civil service list. According to the plaintiff, in the 12 years prior to 1990 during which Chief Frey was responsible for making promotion recommendations within the Irondequoit Police Department, only 5 out of 18 promotions were made out of civil service ranking order. Additionally, of these five, three involved one individual who though ranked higher than other candidates, was not recommended because of disciplinary problems, and the remaining two involved distinguishing circumstances as well. (Plaintiff's Memorandum in Opposition at pp 15,16). Furthermore, plaintiff has provided evidence that his objective qualifications were superior to Sergeant Churnetski's, and that the subjective reasons stated by Chief Frey for selecting Churnetski over Hansen were not supported by the evidence. (Plaintiff's Memorandum in Opposition at pp 18,19.
An issue of fact exists as to whether or not the plaintiff has successfully rebutted defendant's proffered nondiscriminatory reason for not promoting him. See, Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (finding that "the conflict between the plaintiff's evidence establishing a prima fade case and the employer's evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder after trial). Summary judgment, therefore, is inappropriate.
B. The VRRA is applicable to this case.
The defendant contends that the VRRA does not apply in cases where the promotion at issue is based on discretionary considerations, rather than on seniority or some other form of automatic progression. See, McKinney v. Missouri, 357 U.S. 265, 272, 2 L. Ed. 2d 1305, 78 S. Ct. 1222 (1958)
McKinney, however, along with the other cases cited by defendant in support of this point, can be distinguished by the fact that those cases involved issues of seniority and promotion for veterans who had served on active duty away from their jobs. Upon return, these veterans had claimed a "right" to receive promotions that had been made while they were away. In the instant case, Hansen is claiming that he was discriminated against solely on the basis of his status as a reservist, not because he spent time on active duty away from his civilian job. The Supreme Court has stated that the purpose of § 2021(b)(3) is to "[protect] the employee-reservist against discriminations like discharge and demotion motivated solely by reserve status." Monroe v. Standard Oil Co., 452 U.S. 549, 559, 69 L. Ed. 2d 226, 101 S. Ct. 2510 (1981).
Additionally, the protections afforded under the veterans' reemployment statute are to be liberally construed in favor of the employee-reservist. Boyle v. Board of Police Commissioners of City of Portsmouth, 717 F. Supp. 23 (D.N.H. 1989); See also, Coffy v. Republic Steel Corp., 447 U.S. 191, 65 L. Ed. 2d 53, 100 S. Ct. 2100 (1980). Given the purpose and judicial construction of the VRRA, this court finds that the statute may apply to a veteran claiming that discrimination based on military status was a motivating factor in his employer's decision not to promote him.
C. The actions of Chief Frey may be attributable to the town.
Under the VRRA, a plaintiff must establish that his employer has discriminated against him based on his status. The Defendant argues that Hansen has not offered any evidence that the town has discriminated against him, but instead has attempted to show that Chief Frey, who is not plaintiff's employer, engaged in discriminatory conduct. According to the defendant, plaintiff has thus failed to establish a prima facie case against the town, and as a result, summary judgment for the defendant is warranted.
It is clear that Chief Frey played an important and central role in the decision not to promote Hansen. Because of his substantial role, Frey may be considered an agent of the town for purposes of analyzing the town's decision. An individual may be considered an agent" of an employer where that person "participate[s] in the decision-making process that forms the basis of the discrimination." Hamilton v. Rodgers, 791 F.2d 439, 443 (5th Cir. 1986), quoting Jones v. Metropolitan Denver Sewage Disposal District, 537 F. Supp. 966, 970 (D. Colo. 1982). Although the Second Circuit has not definitively addressed the issue, courts in this Circuit have held that a supervisory employee can be deemed an "agent" of an employer if the supervisor asserts some measure of control over the conditions of employment. See Bridges v. Eastman Kodak Company, 800 F. Supp. 1172, 1180 (S.D.N.Y. 1992); Bostick v. Rappleyea, 629 F. Supp. 1328, 1334 (N.D.N.Y. 1985), aff'd w/o opinion 907 F.2d 144 (2d Cir. 1990). Because Frey acted as an agent for the town in this matter, his actions may be attributable to the town. Cf. Haehl v. Village of Port Chester, 463 F. Supp. 845, 848 (S.D.N.Y. 1978) (finding that with respect to New York tort law, a municipality is "equally answerable with individuals and private corporations for wrongs of officers and employees." (quoting Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604 (1945))).
D. New York's "Rule of Three" law does not exempt a defendant from impermissible discrimination
The town claims that under § 61 of the New York Civil Service Law, it has the absolute discretion to promote any one of the top three candidates that appear on the civil service list. N.Y. Civ. Serv. Law § 61 (McKinney 1983). While the town does have substantial discretion in choosing from the top three candidates, it may not exercise that discretion in a manner which is irrational, arbitrary, or capricious. Aladin v. Schultz, 176 A.D.2d 205, 206, 574 N.Y.S.2d 326 (N.Y.A.D. 1st dept. 1991), Dramis v. Nassau County Community College, 173 A.D.2d 705, 570 N.Y.S.2d 597 (N.Y.A.D. 2d dept. 1991). Thus, § 61 will not protect an employer who has otherwise made employment decisions based on discriminatory factors. See, Jackson v. Poston, 40 A.D.2d 19, 21, 337 N.Y.S.2d 108 (N.Y.A.D. 3rd dept. 1972) (finding that under § 61, the Civil Service Commission was not authorized to discriminate in ranking candidates for promotion).
II. Genuine issues of material fact exist so as to preclude summary judgment.
The Second Circuit has held that a material issue of fact exists where there is a conflict between the plaintiff's evidence of a prima fade case of employment discrimination and the defendant's evidence of a nondiscriminatory reason for making the employment decision. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Here, there is a conflict between the plaintiff's evidence that Chief Frey made the decision not to promote Hansen because of his reserve status, and the town's evidence that Hansen was not the best qualified candidate for the position. Because such a conflict exists, summary judgement is inappropriate.
Based on the foregoing, the defendant's motion for summary judgment is denied.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
Dated: Rochester, New York
August 4, 1995