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HANSEN v. TOWN OF IRONDEQUOIT

August 4, 1995

PAUL T. HANSEN, Plaintiff,
v.
TOWN OF IRONDEQUOIT, Defendant.



The opinion of the court was delivered by: MICHAEL A. TELESCA

 INTRODUCTION

 Plaintiff Paul Hansen, ("Hansen") a sergeant in the Irondequoit Police Department, brings this action pursuant to the Veterans' Reemployment Rights Act (VRRA), 38 U.S.C. §§ 2021 et seq., currently codified at 38 U.S.C. §§ 4301 et seq.1 claiming that in August of 1990, he was improperly denied a promotion to the rank of police lieutenant due to his status as a member of the United States Army Reserve. Hansen seeks retroactive promotion to the position of lieutenant, as well as back pay and costs.

 Defendant Town of Irondequoit ("the town") moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure claiming that plaintiff has failed to make out a prima facie case under the VRRA, or alternatively, that there is no genuine issue as to any material fact and that the defendant is entitled to summary judgment as a matter of law. (Docket item number 10).

 BACKGROUND

 In August of 1990, a lieutenant position became available in the Irondequoit Police Department. Plaintiff Paul Hansen was ranked first on a list of three persons qualified for promotion to the position. Chief of Police William Frey, instead, recommended to the Town Board that the second person on the list, Sergeant Frank Churnetski should be promoted. Hansen contends that he was passed over for promotion because of his status as an officer in the United States Army Reserve. According to Hansen, Chief Frey did not recommend him for promotion because Frey was concerned that Hansen would be required to participate in the Persian Gulf Conflict, and would therefore not be available for duty within the department.

 The Town of Irondequoit denies that plaintiff was not promoted simply because he was a reserve officer. According to the Town, the promotion was offered to Sergeant Churnetski for the objective reason that he was better qualified for the position. Further, defendant relies on New York law which gives a municipality the discretion to choose any one of the top three candidates on a civil service list for a promotion and that in recommending the number two candidate, Chief Frey properly exercised the discretion with which he was vested.

 DISCUSSION

 I. Motion for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that their is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When considering a motion for summary judgment, all inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Circ. 1994). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Id. at 1224.

 The defendant has moved for summary judgment on grounds that the plaintiff has failed to state a case under 38 U.S.C. § 2021, or alternatively, that defendant has satisfactorily demonstrated that no genuine issue respecting any material fact exists. For the reasons set forth below, the court finds that the plaintiff has stated a prima fade case under the VRRA, and that triable issues of fact remain unresolved. The court therefore denies defendant's motion for summary judgment.

 A. Plaintiff has successfully stated a prima facie case under the Veterans' Reemployment Rights Act.

 Section 2021(b)(3) of the Veteran's Reemployment Rights Act provides that: any person who seeks or holds a position described in . . . this section shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the Armed Forces. 38 U.S.C. § 2O21(b)(3) (1991). To make out a prima facie case under the Act, a plaintiff need only "[offer] evidence to raise an inference that the plaintiff was discharged, or otherwise mistreated, because he belonged to a protected group." Pignato v. American Trans Air, Inc., 14 F.3d 342, 346 (7th Circ. 1994). (emphasis mine) In establishing a prima fade case, the plaintiff must demonstrate that (1) he is or was a member of a protected group, (2) he was qualified for the position or promotion, (3) he was not appointed or promoted to the position, and (4) someone outside the protected class was hired or promoted. See McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Once a plaintiff has established a prima facie case under the VRRA, it is incumbent upon the defendant to proffer a legitimate, nondiscriminatory reason for not hiring the plaintiff. See, Id. at 802. Upon defendant's showing of a nondiscriminatory reason for not promoting the plaintiff, plaintiff must rebut that showing with evidence that defendant's reasons are pretextual. See, Id. at 804.

 Sergeant Hansen has successfully stated a claim under the four part test of McDonnell Douglas. He has demonstrated that he was within a protected group by virtue of his position as a reservist and as an officer with the town police department. See, 38 U.S.C. § 2021(a)(B). Plaintiff has shown that he was qualified for the job by providing evidence that he was the number-one ranked candidate for promotion to the position. Additionally, Hansen has shown ...


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