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PAYNE v. NEW YORK POWER AUTH.

March 17, 1998

LINDA C. PAYNE, Plaintiff, against STATE OF NEW YORK POWER AUTHORITY, ROBERT A. HINEY, PHILIP J. PELLEGRINO, and CHRISTOPHER L. DE GRAFFENRIED, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Plaintiff Linda Payne is an employee of defendant New York State Power Authority. This action arises out of her 1994 demotion from the position of economist. Plaintiff sues Power Authority under 42 U.S.C. § 2000e, et seq. (hereafter "Title VII") for race and sex discrimination and retaliation. She also sues Power Authority and three of her supervisors under 42 U.S.C. § 1983 for violation of her right to equal protection of the laws. Finally, she sues Power Authority and the individual defendants for common law intentional infliction of emotional distress. Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56.

 At oral argument of defendants' motion, plaintiff withdrew her claims of sex discrimination and intentional infliction of emotional distress. (Tr. 2, 17.) For the reasons that follow, defendants' motion for summary judgment on the remaining claims is granted.

 Undisputed Facts

 Defendant Power Authority is a subdivision of the State of New York. (Def. 56.1 Stat. P 1.) Defendants Hiney, Pellegrino, and De Graffenried are managers employed by Power Authority. (Compl. PP 3-5.) Plaintiff is an African-American woman who has been employed by Power Authority since 1987. (Def. 56.1 Stat. P 12.)

 In March of 1989, plaintiff was promoted to the position of senior power analyst. (Payne Depo. at 39.) This job entailed assisting in the development of rates for Power Authority facilities in Southeast New York. (Def. Ex. 4; De Graffenried Depo. at 269.)

 At the time of the promotion, De Graffenried was plaintiff's immediate supervisor. De Graffenried reported to Pellegrino, and Pellegrino reported to Hiney. (Payne Depo. at 42-43.) All three men approved plaintiff's promotion. (Def. 56.1 Stat. P 16.) Plaintiff continued to report to De Graffenried during her tenure as a senior power analyst. (Payne Depo. at 85.)

 In February of 1990, De Graffenried evaluated plaintiff and gave her a "competent" rating. Pellegrino approved the evaluation. (Def. 56.1 Stat. P 17.) In January of 1991 and January of 1992, De Graffenried again gave plaintiff "commendable" ratings. Pellegrino approved both evaluations. (Def. 56.1 Stat. PP 18-19.)

 Plaintiff was satisfied with the reviews she received as a senior power analyst. (Payne Depo. at 87.) Plaintiff "could live with" the reviews, although "in all honesty I merited more than what I was given." (Payne Depo. at 53.) Plaintiff made no complaints about the reviews she received during this period and had no problems dealing with her peers or her supervisors, including De Graffenried. (Payne Depo. at 57-58.)

 Nevertheless, during this period, plaintiff "truly felt" that she was not "being treated the same" as other employees. Plaintiff admits that she did not raise these concerns with anyone at Power Authority. (Payne Depo. at 58-59.) Plaintiff had never heard any of the individual defendants use racial slurs and had never witnessed or heard of any incidents with racial overtones involving any of the individual defendants. (Payne Depo. at 80-84.)

 In March of 1992, plaintiff was promoted to the position of economist. (Payne Depo. at 84.) All three individual defendants approved the promotion, and Hiney made the ultimate decision to promote her. (Payne Depo. at 84-85.) Plaintiff admits that she could not have received the promotion without the approval of all three individual defendants. (Payne Depo. at 85.)

 Defendants assert that the position of economist entailed "significantly greater" responsibilities than that of senior power analyst. (Pellegrino Depo. at 50.) While senior power analysts and economists were responsible for developing rates, economists were expected to work without direct supervision, to handle more complicated assignments, to produce an accurate product without the intervention of supervisors, to present and defend their own work, and to interact with customers, vendors, and utilities. (Pellegrino Depo. at 54, 93-94; De Graffenried Depo. at 267-70; compare Def. Ex. 4 with Def. Ex. 5.)

 Plaintiff considered the promotion a "progressive leap," but not a "giant leap" forward. She admits that economists were expected to "grow" and to work more independently than senior power analysts. (Payne Depo. at 89.)

 Prior to plaintiff's first formal evaluation as an economist, De Graffenried did not give plaintiff any negative "feedback" regarding her performance. (Payne Depo. at 109.) In February 1993, on her first evaluation as an economist, plaintiff received a "does not meet expectations" rating from De Graffenried which Pellegrino approved. (Def. Ex. 6.) The evaluation detailed numerous deficiencies in plaintiff's work, including a failure to complete two assignments (Def. Ex. 6, Goal 4), insufficient progress towards completing another (Def. Ex. 6, Goal 5), and poor performance on the development of a financial plan on another assignment. (Def. Ex. 6, Goal 6.) De Graffenried criticized the timeliness and quality of plaintiff's work product, and stated that plaintiff had demonstrated an insufficient level of knowledge and skill in the performance of three of her seven assignments. (Def. Ex. 6, Schedule II.) The evaluation called for another evaluation within three to six months (Def. Ex. 6, Form 6) and stated that a demotion might be warranted if plaintiff failed to "meet the requirements of the position" of economist. (Def. Ex. 6, Schedule I.) Attached to the five page standard evaluation form was a typed, six page comment section written by De Graffenried. This comment section discussed plaintiff's performance in considerable detail.

 Plaintiff refused to sign the evaluation. (Def. Ex. 6, Form 6.) Instead, she submitted a one page comment which explained some of the delays in her work product and which concluded by stating that plaintiff "had no idea that me and my productivity were being perceived as indicated," but that "if this is truly the case, then I am perfectly willing to comply with any suggestions and or directions afforded to me in meeting the expectations of my job's scope and to promote a more harmonious atmosphere with my constituents." (Def. Ex. 6, "Performance Review Comments.") Plaintiff's rebuttal was aimed at explaining the reasons for any perceived deficiencies, and did not deny that deficiencies existed in the final products. (Def. Ex. 6, "Performance Review Comments.") Plaintiff's comments did not mention race discrimination. Plaintiff concedes that she did not contest her evaluation on the ground of race discrimination, although she "suspected" race discrimination and discussed her suspicion with her husband. (Payne Depo. at 120-21.)

 Plaintiff testified that her suspicion hardened when, following her evaluation, she met with De Graffenried in an attempt to refute certain criticisms: "I met with him again and I showed him and when he didn't change that rating that's when I knew what he was doing, what was being done was not a mistake. It was being done deliberately, and was being done by him only I didn't know." (Payne Depo. at 122.)

 When plaintiff subsequently met, at De Graffenried's suggestion, with a human resources employee at Power Authority, plaintiff did not discuss the possibility that the negative review was based on ...


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