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DUBOIS v. NEW YORK

June 14, 1997

MARILYN DuBOIS, Plaintiff, against THE STATE OF NEW YORK, Defendant.


The opinion of the court was delivered by: MCAVOY

 I. PROCEDURAL HISTORY

 Pursuant to Fed. R. Civ. P. 12(b)(6), defendant moves to dismiss plaintiff's discrimination claims set forth in her Complaint filed on February 28, 1997 with this Court. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"). Alternatively, defendant moves to have plaintiff's Title VII claims consolidated with a related cause of action, DuBois v. Zagata, 96-CV-1241, pursuant to Fed. R. Civ. P. 42(a). Plaintiff does not object to defendant's motion to consolidate.

 II. FACTS

 Plaintiff is the former Chief of the Bureau of Pesticide Control, a non-policy making administrative position for the State of New York. Pursuant to a notice dated June 22, 1995, defendant terminated plaintiff's position effective July 12, 1995.

 In substance, plaintiff alleges that her termination stemmed from differences in environmental policy opinions between herself and the Pataki Administration. However, plaintiff also claims that defendant violated her civil rights under Title VII on two separate occasions. First, plaintiff alleges a Title VII violation insofar as defendant replaced her with an allegedly less qualified male employee. Second, plaintiff alleges a Title VII violation in that defendant retaliated against her for filing a March 12, 1996 Equal Employment Opportunity Commission complaint by disseminating a June 7, 1996 Ethics Commission report that found her to have broken Public Officers Law § 73(8)(a)(ii).

 This Court has federal question jurisdiction. See 28 U.S.C. §§ 1331, 1343.

 III. DISCUSSION

 Plaintiff's Complaint alleges two separate violations of Title VII. First, plaintiff alleges that defendant violated her right to a workplace free from gender-based discrimination. Second, plaintiff alleges that her termination was intended by defendant as retaliation against her for filing a complaint with the EEOC with regard to alleged gender-based discrimination. Defendant moves for dismissal of plaintiff's Title VII claims pursuant to Fed. R. Civ. P. 12(b)(6). Should the Court deny this motion, defendant moves to have plaintiff's Title VII claims consolidated with her pre-existing cause of action, DuBois v. Zagata, 96-CV-1241, pursuant to Fed. R. Civ. P. 42(a).

 A. Plaintiff's Gender-Based Discrimination Claim

 Plaintiff's claim that defendant violated Title VII by intentionally discriminating against her on the basis of gender requires the Court to apply the three-step burden shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). Under this analysis, plaintiff must first prove a prima facie case of gender discrimination by a preponderance of evidence. 411 U.S. at 802. Second, after plaintiff establishes a prima facie case, the burden shifts to defendant to articulate legitimate, non-discriminatory reasons for its alleged activity. See Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1226 (2d Cir. 1994). Third, if defendant satisfies this burden, plaintiff must prove the employer's reason was merely a pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).

 Plaintiff must establish a prima facie case for gender discrimination under Title VII by showing that "she was treated less favorably than comparable male employees in circumstance from which a gender-based motive could be inferred." See Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 106 (2d Cir. 1989). Plaintiff, however, never makes any comparison between herself and a similarly situated male, nor alleges disparate treatment.

 The only reference to gender that plaintiff makes throughout the course of her pleadings is a claim that defendant hired an allegedly less qualified male to replace her. However, the fact that plaintiff's replacement was a male, allegedly less qualified than herself, does not support an inference that her termination related to gender. Rather, plaintiff's consistent and forceful allegations that her superiors planned to terminate her position or coerce her resignation because of her opinions on environmental matters make clear that her discharge and the hiring of a male replacement were unrelated.

 Moreover, claims made pursuant to civil rights statutes, based on alleged deprivations of constitutional rights, must be pleaded with specificity. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). Here, however, plaintiff fails to provide any detail as to her male replacement's qualifications, whether his duties and benefits were similar to her own, and/or the circumstances under which he succeeded ...


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