UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
March 31, 1996
DIANE CALABRITTO, Plaintiff, against NASSAU COUNTY DISTRICT ATTORNEY DENIS DILLON, Defendant.
The opinion of the court was delivered by: SPATT
MEMORANDUM AND ORDER
SPATT, District Judge.
The issues in this case concern a charge of gender discrimination in the setting of the Office of the District Attorney of Nassau County. The plaintiff, an Assistant Detective Investigator II in the Office of the defendant District Attorney, contends that her discharge was motivated by gender discrimination.
The plaintiff Diane Calabritto ("the plaintiff" or "Calabritto") was first employed by the defendant District Attorney of Nassau County ("the defendant" or "the District Attorney" or "The Office") as an Assistant Detective Investigator Aide on March 23, 1984. On or about March 27, 1988, Calabritto was promoted to Assistant Detective Investigator I. She was promoted to Assistant Detective Investigator II on or about April 24, 1989. In 1990, the plaintiff was assigned to the United States Customs Task Force ("the Task Force"). The plaintiff was terminated from her employment with the District Attorney on or about January 24, 1992.
The plaintiff filed a discrimination claim against the District Attorney with the United States Equal Employment Opportunity Commission Division of Human Rights, which made a determination that the District Attorney did not violate the Title VII statute, as follows:
Examination of the evidence reveal that Charging Party was terminated as a direct result of budgetary constraints. Charging Party's title was that of 'Assistant Detective Investigator I'. On January 17, 1992, Nassau County District Attorney's Office laid of (sic) several persons with the same title as Charging Party. This included two other males and the Charging Party. No persons in the same job title as the Charging Party's job was retained, nor was there anyone hired or re-hired in the job title of Assistant Detective Investigator I since January 17, 1992.
In January 1994, the plaintiff commenced this action alleging employment discrimination, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).
I. The Standards in a Title VII Case
A. McDonnell Douglas - Burdine - Hicks Pretext Cases
"Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to . . . the terms and condition of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate or classify his employees in ways that would adversely effect any employee because of the employee's race, color, religion, sex, or national origin." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 645, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989); Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 (2d Cir.), cert. denied. 502 U.S. 924, 116 L. Ed. 2d 277, 112 S. Ct. 337 (1991).
As the Supreme Court observed in Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), "the objective of Congress in the enactment of Title VII . . . was to achieve equality of employment opportunities and remove barriers that have operated in the past . . .." Under Title VII, discrimination can be demonstrated through evidence of either 'disparate treatment' or 'disparate impact.' To show 'disparate treatment,' the plaintiff is "required to prove that the defendant had a discriminatory intent or motive." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). 'Disparate impact' is based upon the premise "that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Id. at 987. The evidence in 'disparate impact' cases "usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033 (2d Cir. 1993).
In this action, in a broadly worded complaint drawn by a pro se plaintiff, who was later represented by counsel, she apparently alleged both a "disparate treatment" and "disparate impact" Title VII claim. To establish a discriminatory treatment claim under Title VII, proof of discriminatory motive is critical. Discriminatory motive can be proved by direct or circumstantial evidence, though most often a Title VII plaintiff "is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).
As stated recently in Fisher v. Vassar College, supra, a Title VII claim, including one alleging discriminatory treatment, is tried by a three-step process. In the seminal case of McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court devised a three-tiered burden shifting framework in Title VII cases. In the first tier, the plaintiff must prove a prima facie case, which, in a gender discrimination case such as this, consists of four elements: (1) that the plaintiff is a member of a protected class; (2) that the plaintiff was qualified for the position she held at the time of her termination; (3) that the plaintiff was terminated from her position; and (4) that her termination occurred in circumstances giving rise to an inference that it was based on the plaintiff's gender.
The next two tiers are described in Fisher, as follows:
If the plaintiff presents a prima facie case, the burden shifts to the employer, who is required to demonstrate "some legitimate, nondiscriminatory reason" for the decision. Id. The employer's burden here is one of production of evidence rather than one of persuasion. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The defendant need only articulate -- but need not prove -- the existence of a non-discriminatory reason. Id. At 254-56, 101 S. Ct. At 1094-95.
If the defendant carries this burden of production, the plaintiff then assumes the burden to "show that [the employer's] stated reason for [the plaintiff's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. At 1825. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 253, 101 S. Ct. At 1093. In St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), the Supreme Court held that, as to the third prong of the McDonnell Douglas test, it is not enough for a plaintiff to show that the defendant's legitimate, non-discriminatory reason for its employment decision is pretextual; the plaintiff must also prove by a preponderance of the evidence that defendant's stated reason is "a pretext for discrimination." St. Mary's, U.S. at , 113 S. Ct. At 2752 (emphasis added). The plaintiff must establish "both that the reason was false, and that discrimination was the real reason."
Id. at 1433 (emphasis in original).
As stated above in Fisher, under the third tier of the McDonnell Douglas pattern, as clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993), even if the trier of fact rejects the defendant's submission that its reasons were justified, the burden of proving that the motivation for the failure to promote the plaintiff was unlawful remains with the plaintiff. St. Mary's Honor Center v. Hicks, supra, 113 S. Ct. at 2749 (1993) ("The Court of Appeals' holding that rejection of the defendant's proffered reasons compels judgment for the plaintiff . . . ignores our repeated admonition that the Title VII plaintiff at all times bears the 'ultimate burden of persuasion.'") (emphasis in original).
In Hicks, the United States Supreme Court eliminated the uncertainty that had developed as a result of certain lower court decisions as to the plaintiff's burden of proof in a Title VII action after the plaintiff had established "pretext." See id. at 2750. In so doing, the Court confirmed that a plaintiff cannot merely establish that the employer's "proffered reason was not the true reason for the [challenged] employment decisions" and, without more, expect to prevail. Id. at 2748 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The Hicks Court went on to state:
We have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated. We may, according to traditional practice, establish certain modes and orders of proof, including an initial rebuttable presumption of the sort we described earlier in this opinion, which we believe McDonnell Douglas represents. But nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable.
113 S. Ct. at 2751.
In a series of cases, the Second Circuit has interpreted and clarified the Hicks ruling. For example, in DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993), it was stated:
Proof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant's actions were motivated by an improper discriminatory intent, but does not compel such a finding.
Id. at 170. Recently, these rules were reiterated by Judge Winter in Binder v. Long Island Lighting Company, 57 F.3d 193 (2d Cir. 1995), who added:
Resort to a pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct. In so stating, we do not exclude the possibility that an employer may explain away the proffer of a pretextual reason for an unfavorable employment decision. See Woods v. Friction Materials, Inc., 30 F.3d 255, 260 n.3 (1st Cir. 1994).
57 F.3d at 200. Thus, even if the defendant's reasons are found to be pretextual, the plaintiff must, nevertheless, prove that she was terminated as a result of intentional discrimination. "It is not enough . . . to disbelieve the employer: the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 113 S. Ct. at 2254. However, this proof may be inferred from proof of the four elements of the prima facie case.
B. Mixed Motives Theory
Employment discrimination cases may fall into one of several categories, including "pretext" or "mixed motive." See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.), cert. denied, 506 U.S. 826, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992). These two approaches involve different analyses. Under a mixed motive theory, a plaintiff "must initially show more than the 'not onerous' McDonnell Douglas-Burdine factors." Id. at 1181. If the plaintiff is able to produce evidence to establish that an illegitimate factor played a motivating or substantial role in the challenged employment decision, the defendant is then given an opportunity to prove an affirmative defense, namely, that the defendant "'would have reached the same decision as to [the employee's employment] even in the absence of the' impermissible factor." Id. (quoting Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) and Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989)).
The question is what does the plaintiff have to show in order for the burden to shift to the defendant. In the Second Circuit, the plaintiff is required to submit "enough evidence that, if believed, could reasonably allow a jury to conclude that the adverse employment consequences were 'because of' an impermissible factor." 958 F.2d at 1187. The Second Circuit rejected the notion that the plaintiff must introduce "direct" evidence of discrimination (such as an admission by the decisionmaker that "I fired the plaintiff because she was a woman") as opposed to circumstantial evidence. Id. at 1185-87. However, if the plaintiff relies on circumstantial evidence, "that circumstantial evidence must be tied directly to the alleged discriminatory animus." Ostrowski v. Atlantic Mutual Insurance Co., 968 F.2d 171, 182 (2d Cir. 1992).
In Ostrowski, Judge Kearse explained that the plaintiff would not be entitled to a 'mixed motive' burden shifting instruction based on (1) purely statistical evidence; (2) mere evidence of the plaintiff's qualification for, and the existence of, a certain position; or (3) 'stray' remarks in the workplace by persons not involved in the relevant decisionmaking process. Id. at 182. In other words, evidence that would satisfy the requirements of a McDonnell Douglas prima facie case, would not necessarily justify a Price Waterhouse 'mixed motive' charge. Statistical evidence that is "directly tied to the forbidden animus, for example policy documents or statements of a person involved in the decisionmaking process that reflect animus of the type complained of in the suit" will entitle the plaintiff to a burden shifting instruction. Id. To qualify for a 'mixed motive' instruction, the plaintiff must introduce "evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude, and that evidence [must be] sufficient to permit the factfinder to infer that the attitude was more likely than not a motivating factor in the employer's decision." Id.
C. A Pattern or Practice Case
There is another method to prove gender discrimination under Title VII. In a so-called "pattern and practice" case, if the plaintiff can establish "that (gender) discrimination was the company's standard operating procedure--the regular rather than the unusual practice," see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), the burden then shifts to the employer to demonstrate that the plaintiff's proof is "either inaccurate or insignificant." Id. at 360. See also Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976); Ottaviani v. State U. of New York at New Paltz, 875 F.2d 365 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990). If the employer fails to carry its burden in the liability phase of a pattern and practice case, then the individual plaintiff who challenges a decision that was made pursuant to the discriminatory pattern and practice is presumed to have been a victim of discrimination. Teamsters, 431 U.S. at 362. "The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy." Id. The employer then has the burden to demonstrate that the individual employment decision was made for lawful reasons. Id.
Calabritto argued that this is a "pattern and practice" case, which should be resolved by application of the Teamsters analysis. She further urged the Court that the defendant should bear the burdens of proof and persuasion in rebutting the prima facie showing of discrimination and cites various authority in support of this allocation. See Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984) (in pattern and practice case, the employer bears burden of production and persuasion to show that it is more likely than not that it did not discriminate against the individual); see also Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986), cert. denied, 479 U.S. 883, 93 L. Ed. 2d 250, 107 S. Ct. 274 (1986); In re Western Dist. Xerox Litigation, 850 F. Supp. 1079, 1082 (W.D.N.Y. 1994).
The defendant challenged the plaintiff's proposed allocation of the burden of proof in a "pattern and practice" case, as well as its applicability to a lawsuit involving the claims of one individual. Applying the Teamsters analysis in a "pattern and practice" case, the Second Circuit commented that "even though the burden of production shifts to the defendants during the second stage of the process, the ultimate burden of persuasion rests always with the plaintiffs to prove their claims of discrimination." Ottaviani, supra, 875 F.2d at 369-70. The Court agrees with the defendants that this case differs from the class action "pattern and practice" cases in which systemic discrimination is shown by the plaintiffs to make out a prima facie case. Indeed, some courts have questioned the applicability of the Teamsters analysis to individual plaintiff discrimination suits. For example, it was noted that
It is also questionable whether it would be appropriate in this litigation to try the pattern and practice issue separately, regardless of the strength of plaintiffs' evidence. Trials of that discrete issue generally occur in the context of class actions or suits brought by the Government which follow the Teamsters paradigm.
Xerox, supra, 850 F. Supp. at 1083; see also Gilty v. Village of Oak Park, 919 F.2d 1247 (7th Cir. 1990) (pattern and practice evidence is only collateral to evidence of specific discrimination against individual plaintiffs); Babrocky v. Jewel Food Co., 773 F.2d 857, 866 n.6 (7th Cir. 1985) (pattern and practice argument seems to be misplaced in nonclass suits); Craik, supra 731 F.2d at 471 ("in this case we squarely confront the necessity of distinguishing the analysis required for broad-based class actions from that required for individual, non-class actions"). But see, Cox supra, 784 F.2d at 1559 (where individual plaintiffs demonstrate that they are victims of a discriminatory policy, rather than one instance of unlawful discrimination, "these individuals were in substantially the same position as the Teamsters and Franks plaintiffs").
However, even assuming the applicability of the Teamsters analysis to a single plaintiff discrimination action, it is the Court's view that this case is appropriately resolved by using the three-tiered burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
II. The Trial - Findings of Fact
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). See Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.
The titles of Detective Investigator and Special Investigator in the Office of the District Attorney of Nassau County were created in 1968 as separate titles. At that time it was determined that the Special Investigators performed a highly specialized criminal investigative function with regard to "crime families," distinct and different from the more general criminal investigative function of the Detective Investigator (Plaintiff's Exh. 1C).
Denis Dillon has been the District Attorney of Nassau County since January of 1975. He testified that the main mission of his office is to prosecute criminal cases. Under Dillon in the table of organization in the Office of the District Attorney of Nassau County is Lawrence Leff as Chief Assistant and Patrick McClosky as Executive Assistant for Administration. Leff supervised the investigative bureau and made the final decisions as to whether to hire or promote investigators, subject to Dillon's approval.
Dillon discussed the rationale for the creation of the titles of Assistant Detective, Assistant Detective Investigator I, and Assistant Detective Investigator II, as follows:
There did come a time that I had discussions with Larry Leff about bringing on people who did not have investigative background that could be used for the kinds of investigations that they were doing, and that it would be more economical for the District Attorney's Office not to pay the high salaries we were paying for people with long-time previous investigative experience, such as retired police officers and detectives. . . .
We felt restrained in doing undercover type of investigations we wanted to do. We were doing a lot of investigations into the commercial frauds area, for example. And where we wanted the people who would not be easily recognizable as District Attorney's investigators to be used. . . .
What we were looking for and what we sought to get were women, minorities, young people. (Tr. at 145-146).
On the same subject, Executive Assistant District Attorney for Administration McCloskey stated:
THE COURT: And you say this was designed to get more inexperienced, if I may use that, type of investigators into the system.
Why would you want inexperienced investigators?
THE WITNESS: Mr. Leff could answer it better. But from my vantage point, I believe it was that many of the people who qualified for the Special Investigator title were retired police.
Many of those who applied for the Detective Investigator were also retirees. And it was thought that if we could get some younger people in there -- of course, the younger people didn't have the experience, so we couldn't hire them -- that it might give us more versatility with respect to investigative work. That was the thinking of the 80's.
THE COURT: Versatility would include undercover, female undercover?
THE WITNESS: Yes, minority undercover.
THE COURT: And minority undercover?
THE WITNESS: Yes, your Honor. (Tr. at 426-27).
However, there is no doubt that these relatively inexperienced persons discussed above, were the ones who were laid off in the January 1992 terminations and they were never rehired. Dillon testified that the plan in The Office in 1992 and thereafter, was to hire financial investigators, who are primarily retired police officers or federal agents and these investigators are primarily male and not women or minorities.
Diane Calabritto was first employed by the County of Nassau on June 1, 1982 in the office of the Nassau County Department of Motor Vehicles. Despite the plaintiff's testimony that she had prior general investigative experience as a cashier with the Department of Motor Vehicles, the Court finds that the plaintiff has no prior criminal investigative experience. On March 23, 1984 she was hired by the Office of the District Attorney of Nassau County as an Assistant Detective Investigator Aide ("Aide"). This was a permanent appointment after the plaintiff passed a civil service test and served a probationary period.
During the period of 1984 to 1992, the investigators in the District Attorney's Office consisted of the following classifications:
Assistant Detective Investigator - Aide, I, II (Pay Grades 6, 9 and 11)
Detective Investigator (Pay Grade 13)
Investigator Coordinator (Pay Grade 14)
Special Investigator I, II (Pay Grades 15, 16)
Financial Investigator I, II (Pay Grades 15, 17)
Environmental Conservation Investigator (Pay Grade 17)
The plaintiff was aware that the various investigative positions within the Office of the District Attorney of Nassau County required different qualifications. In order to take the tests for the various investigative positions, there were different qualifying requirements. For example, Assistant Detective Investigator I had higher requirements than the Aide position; and Detective Investigator had higher qualifications than Assistant Detective Investigator. The same was true going right up the ranks as to Investigator Coordinator, Special Investigator and Financial Investigator. Each successive rank required greater qualifications.
In the same vein, the "training and experience" required for Assistant Detective Investigator II was graduation from high school and two years of general criminal investigation work, while the "training and experience" required for Special Investigator I was graduation from high school and "ten years of experience in criminal investigation work, of which five years must have been in the specialized field of investigation of syndicated organized crime, including narcotics, syndicate operated gambling, bookmaking, policy, loansharking, etc." The "training and experience" required for Financial Investigator I was a bachelor's degree, including courses in accounting and "five years of satisfactory experience in the FBI, IRS or NYS Tax Department investigating financial fraud." (See Defendants' Exh. C).
The plaintiff passed the test for Assistant Detective Investigator I and she was appointed on March 27, 1988. As an Assistant Detective Investigator I, the plaintiff's duties were the same as an Aide, in that she conducted interviews, collected evidence and did undercover surveillance. The plaintiff carried a gun, drove a County car and was considered a police officer. In 1988, the plaintiff attended a peace officer course at the Nassau County Police Academy.
According to the plaintiff, all the Assistant Detective Investigators and the more senior Special Investigators "worked side by side . . . (and) we each did the same type of work." (Tr. at 20). However, the plaintiff conceded that as an Assistant Detective Investigator II, her responsibilities increased, she had a greater caseload and she was assigned to the Task Force. In addition, the Court finds that on occasion, the more complex situations would be given to a more experienced investigator. Such an experienced investigator, for example, was Dennis Sheehan, an Investigator Coordinator, who had 38 years of law enforcement experience, including 17 years as a detective in the Police Department.
In 1989, the plaintiff passed the civil service test for Assistant Detective Investigator II and was appointed to that position on April 24, 1989. The plaintiff remained an Assistant Detective Investigator II until her termination on January 24, 1992. In 1990, the plaintiff passed the Detective Inspector Civil Service examination. She was then placed on an eligible list which expired in December, 1994. However, she was never promoted to the position of Detective Investigator. As stated above, the plaintiff testified that her duties as an Assistant Detective Investigator II were the same as an Aide or an Assistant Detective Investigator I. During her tour as an Assistant Detective Investigator, the plaintiff testified at a civil trial in May 1989, and was commended by the Office of the Nassau County Attorney. (Plaintiff's Exh. 1F).
There was another investigative title in the District Attorney's Office in 1989 called a Financial Investigator whose duties were to conduct highly complex financial investigations. However, according to the plaintiff, the Financial Investigators were assigned the same caseload as the other investigators.
As to the method of making assignments to the various investigators, the plaintiff testified that the Chief Investigator made the assignments by a random selection from a list of all the investigators. According to the plaintiff, all of the investigators, regardless of grade, were treated equally with regard to assignments and duties. In a memorandum to Leff dated September 22, 1988, the plaintiff noted that Dillon stated that "persons in both positions perform the same job functions." (Plaintiff's Exh. 29). The Court finds that there was no gender discrimination by the District Attorney in the random assignment of jobs. The plaintiff, herself, testified that the jobs were assigned to all the investigators, regardless of title, in rotation.
In February 1990, the plaintiff was selected for a different assignment, the United States Customs Task Force ("the Task Force"), in Bohemia, New York. Calabritto was selected by Dillon himself, and she was the first woman from the District Attorney's Office assigned to a Task Force. In the Task Force there were detectives from the Nassau County Police Department, the Suffolk County Police Department and Special Agents from the Internal Revenue Service and the United States Custom Service. Of interest, the plaintiff was selected for the Task Force instead of a more experienced male investigator who also applied for the job. This Task Force conducted long-term financial and money laundering investigations. She was the only representative of the Nassau County District Attorney's Office on the Task Force. During the time she served on the Task Force, which was from February 1990 until her discharge in January 1992, she was no longer physically located in the District Attorney's Office but was situated in Bohemia, New York. As a member of the Task Force, the plaintiff attended a cross-designated training school. Her job assignments included conducting surveillances, serving subpoenas on bank records, making arrests and performing detailed analyses of bank and corporate records. In 1990 and 1991, while the plaintiff was on the Task Force, she worked overtime and received approximately $ 8,000 in overtime payments each year. Her overtime payments were made by the District Attorney's Office and The Office was reimbursed by the U.S. Customs Service. As stated above, the plaintiff remained at the Task Force from February 1990 until the date she was terminated, January 24, 1992.
In March 1991, the plaintiff was advised by Chief Investigator John Murphy that her services were no longer required on the Task Force. In this decision, Murphy said he was acting on behalf of Chief Executive Assistant District Attorney Lawrence Leff. The plaintiff was told that she was being removed from the Task Force because of her overtime payments, in that she "submitted a lot of overtime" (Tr. at 33). At the same time the plaintiff was on the United States Customs Task Force, another District Attorney Investigator Vinnie Martinez, was on the United States DEA Task Force, under a similar overtime arrangement, namely with ultimate reimbursement by the Federal Agency. However, according to the plaintiff, Martinez did not have to go through as complicated a paper trail procedure as she did in order to get paid. The plaintiff asserted that this difference in procedure for obtaining overtime payments, was evidence of gender discrimination. However, the Court finds that the reason for the dissimilar methods of obtaining overtime payments was the difference in the reimbursement routines of the DEA Task Force and the Customs Task Force. With respect to the DEA Task Force, Nassau County was not reimbursed until the end of a quarter; in the case of the Customs Service, the reimbursement period was every two weeks, so that more paperwork was required by the Customs Task Force representative.
The plaintiff then communicated with Leff and reminded him that the United States Customs Task Force was a source of additional funds for the District Attorney's Office in that, if the District Attorney had a member on the Task Force, it would participate in asset sharing in forfeiture proceedings conducted by the Task Force. In addition, she reminded Leff that her overtime payments were fully reimbursed by the Federal Government. Calabritto later received a reprieve and was advised that she could stay on the Task Force. Leff himself explained that he wanted to replace the plaintiff on the Task Force so that other investigators could share in the overtime payments.
In the Fall of 1991, Leff again told the plaintiff that she was no longer to be on the Task Force, this time stating that the change was to give other people a chance. The plaintiff expressed her desire to remain with the Task force. She explained that other people in the District Attorney's Office were assigned to Task Forces for longer periods of time and that she needed additional time to complete certain long-term investigations. Leff then held a meeting with all the investigators and explained that the Task Force would be run on a two-year rotating basis from that time on. Under this policy the plaintiff and Martinez would both be removed from the Task Force in March 1992.
In 1991, the plaintiff became aware that there was a budget crisis in Nassau County. In fact, as the union representative, she attended an emergency union meeting on that subject. In 1991, the District Attorney submitted its 1992 budget proposal to the County Executive. The salaries of the employees in The Office constitute approximately ninety percent of the District Attorney's budget. In the fall of 1991, Dillon was advised by the County Executive of Nassau County that there was an extremely serious fiscal crisis and a shortfall in revenue and that all department heads would have to cut back expenditures. Dillon communicated with his senior staff, Leff, McCloskey and Harvey Levinson, advised them that they would have to be very careful in drawing the budget and told them to propose "a very tight budget." The 1992 budget was markedly reduced by the County Executive and the Board of Supervisors. The County Executive cut the District Attorney's request by 4 million to 5 million dollars, and the Board of Supervisors made further cuts. Keeping in mind the mission of The Office to prosecute criminal cases, Dillon and the senior staff tried to select options which would least inhibit the performance of that mission. Finally, Dillon, Leff and McClosky arrived at a consensus as to what personnel should be asked to leave, taking into consideration the fact that certain people were already leaving at about that time.
In December 1991, Dillon had conversations with Leff and McCloskey to decide what persons to terminate. Dillon testified that in all his conversations with Leff and McCloskey about layoffs, the topic of the sex or gender of any individual employee was not discussed and was not a consideration in formulating the decisions to terminate. He stated that he did not terminate Diane Calabritto because of her sex. In the final analysis, Dillon testified that gender had nothing to do with the layoffs, and, insofar as the investigators are concerned, he laid off two men and one woman, the plaintiff.
Under the figures in the original 18 million dollar budget projected for 1992 no lay-offs would be required. However, the 1992 budget initially adopted by the County Executive and the Board of Supervisors was cut to $ 14,200,000, requiring the lay-offs made and deficit spending. Ultimately, however, in April 1992, after the plaintiff was terminated, the County Executive and the Board of Supervisors, in various money-raising plans, rescinded all the budget cuts in the 1992 budget.
As a result of the estimated budget deficit, it was decided to terminate nine employees in the office. In addition, four assistant district attorneys who planned to resign, did so, together with another assistant whose resignation was requested. The terminations in January 1992 consisted of fourteen employees in the Office of the District Attorney, of whom seven were males and seven were females. Of greater relevance, three Assistant Detective Investigators were terminated, two, Victor Bartolotto and Douglas Delyra, were male, one, the plaintiff, was a female. (See Defendants' Exh. B). Of the nine persons laid off, Robert Lee, a non-investigator, was rehired as the security control officer; William Dwyer was employed by the County of Nassau and not the District Attorney, and Carol Blumenberg was rehired by the District Attorney as a crime victim's advocate.
On December 19, 1991, the plaintiff was called in by Leff and told that "there was a fiscal crisis and that I was low man on the totem pole and was going to be terminated." Apparently, Leff erroneously thought that her seniority was from 1988, while in actuality it was from the year 1984. The plaintiff responded that she was "far from the low man on the totem pole, and that it didn't make sense to lay me off." She stated that she was one of the lowest paid investigators in the office and was assigned to the Task Force and brought money into the office.
The plaintiff then spoke to McCloskey and three senior investigators to try to save her job. She also spoke directly to District Attorney Dillon. She told Dillon: "that I had nine years and seven months (in), and (was) four months away from being vested. I was a single mother. I had three children. I basically begged to be perfectly honest with you, for him to find another way. I told him that . . . the employees had circulated a petition to -- so the District Attorney could save money, they would be willing to give up a vacation day or a comp day, for the money to go back in the budget. He wasn't interested." McCloskey was more sympathetic but there was nothing he could do.
After the plaintiff's termination, she was replaced on the Task Force by Dennis Sheehan, an Investigator Coordinator, followed by Kenneth Cozza and Ray Lulenski. Also, as a result of her layoff, the plaintiff asserts, without corroboration, that the District Attorney's Office lost forfeiture money. After her discharge, the plaintiff was placed on a preferred civil service list for a period of four years.
At the time of her discharge, the plaintiff, as an Assistant Detective Investigator II was being paid a salary of $ 33,172. At her termination, she received the sum of $ 19,432.36 as a total package of severance pay, which included vacation pay, sick leave and longevity pay. In mitigation of her damages, the plaintiff introduced evidence as follows:
In 1992, she received compensation from the County of Nassau, including salary and severance pay of $ 23,083.92. In 1992, she also received unemployment insurance payments of $ 6,900. In addition, in 1992, she received other income, as follows:
Compass Advisory Group $ 9,384.61
Federal Government 8,041.23
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