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July 21, 1998


The opinion of the court was delivered by: STANTON

Opinion and Order

 Defendants Port Authority of New York and New Jersey ("Port Authority") and Larry Rosenshein move for summary judgment dismissing plaintiff Elissa Bon Settecase's amended complaint. Plaintiff alleges retaliation and sex and disability discrimination in violation of various federal, state and local laws.


 After graduating from law school, plaintiff began working at the Port Authority on October 15, 1985 as a Staff Assistant (a junior management position) in its World Trade Institute ("WTI"). *fn1" (Consent Pre-Trial Order Agreed Fact PP 1, 3; Settecase Dep. at 13-14; Anders Aff. P 9.) While at WTI, Settecase says she "had a high level of responsibility and managed numerous projects. My responsibilities included in-depth research and analysis in the area of world trade, creating, organizing and running special programs and seminars, and marketing and conducting an institute-wide quality assurance audit." (Settecase Aff. P 3.) She asserts, without challenge from defendants, that she received favorable evaluations while at WTI and that her supervisors there recommended her for promotion in 1993 and 1994. (Id. P 4.) She never received that promotion.

 Beginning in 1990, Settecase took many medical leaves of absence for pregnancy-related reasons. Between 1990 and mid-1993, she "took approximately six sick leaves, in accordance with the Port Authority's medical leave policy, in connection with three miscarriages, two hysteroscopies and an ectopic pregnancy." (Id. P 5.) She took two five-week leaves in the fall of 1993 and 1994 for unsuccessful in vitro fertilization procedures. (Id.)

 Shortly after she returned from the second leave, Lorrie Foster, the director of WTI, and Larry Rosenshein, Director of the Office of International Business ("OIB"), told Settecase that she was being transferred to Global Infrastructure Advisors ("GIA"), a newly-created unit of OIB. (Id. P 8.) Settecase claims that "Foster described this move to me in a negative light." (Id.) Settecase "immediately expressed to Rosenshein that I was concerned about the effect of the transfer on the vesting of my benefits and on my job security at the Port Authority" and about "being transferred from a manager's window office to a secretary's cubicle." *fn2" (Id. P 11.) Rosenshein "made light of these concerns" and promised her increased responsibility. (Id.) Nevertheless, "After the transfer, despite my professional background, more than nine years experience at the Port Authority and my law degree, I was given only clerical responsibilities, including designing stationery and business cards, faxing, xeroxing, typing, and setting up charge codes." (Id. P 12.)

 GIA consisted of Joseph McNamara, its manager, Richard Danoff, its marketing manager, *fn3" Tony Gomes, a temporary employee, Julia Melton, a secretary, and plaintiff, an administrator. Settecase asserts that Rosenshein "treated me unfairly" compared to Danoff:

Even though Danoff did not have a law degree, had worked for the Port Authority for only about two years, and had the same pay grade as I did, he was given a great deal of responsibility to meet with potential clients, draft business contracts, attend marketing and senior staff meetings, and to market Port Authority services. Danoff also received a more private manager's office space than I did. Rosenshein was responsible for this unequal division of responsibility.

 Id. P 14.) She claims that Rosenshein treated her "in a rude and demeaning manner and closely monitored" her (id. P 13) and berated her for "gossiping" with a male colleague while he did not berate the male colleague (id. P 15). Rosenshein answers that he did reproach her colleague. (Rosenshein Aff. P 11.)

 In January 1995 plaintiff complained about Rosenshein to the head of Port Authority's Office of Equal Employment Opportunity ("EEO"), who advised her to put her complaint in writing. Settecase submitted an eight-page complaint dated January 9, 1995, in which she described a history of unfair treatment by Rosenshein. (Defs.' Notice of Motion Ex. E.) After Rosenshein received a copy of that complaint, she alleges, he negatively interfered with her performance review, failed to increase her responsibilities, screamed at her in her colleagues' presence and excluded her from meetings attended by McNamara, Danoff and Gomes. (Settecase Aff. P 19.)

 Plaintiff was terminated in October 1995 as part of a reduction in force ("RIF"). In September 1995 the Port Authority was restructuring its operations, and in doing so, decided "to eliminate the functions currently being performed by the XPORT Trading Company and by Global Infrastructure Advisors. Further, the World Trade Institute, while not being eliminated at this time, had been identified for privatization in the near future." (Barrone Aff. P 13.) Lillian Barrone, Director of the Port Commerce Department, *fn4" says she related the above information to Rosenshein to aid him in recommending positions for elimination. She instructed him that "recommendations should take into account the minimal number of positions that would be needed at the World Trade Institute to continue the teaching and contractual obligations that were outstanding pending transfer of the World Trade Institute to a private entity." (Id. P 13; Rosenshein Aff. P 17.)

 Rosenshein accordingly recommended the termination of Settecase, McNamara, Melton and all but three XPORT employees (for whom he gave specific reasons for retaining). *fn5" (Rosenshein Aff. P 19; Defs.' Notice of Motion Exs. I, J.) Though the Port Authority decided to retain McNamara for the time being (he left "approximately four months later in connection with a subsequent downsizing"), Rosenshein did not play a role in that decision. (Barrone Aff. PP 16-17; Rosenshein Aff. PP 18-19, 26.) Rosenshein asserts that "Danoff was not terminated because an open position for someone with his background and credentials existed in a unit, which was not being eliminated and would continue to operate." (Rosenshein Aff. P 24.) Settecase could not have been similarly accommodated, he claims, "because all open positions, as well as filled positions, were eliminated in her former unit, the World Trade Institute" and because "she didn't fit" with positions in other units. (Id. ; Rosenshein Dep. at 169, Paley Aff. Ex. C.)

 Settecase now claims that Port Authority and Rosenshein

(1) discriminated against her because of
(a) her gender, in violation of the equal protection clause of the Fourteenth Amendment; 42 U.S.C. § 1983; 42 U.S.C. § 2000e, et seq. ("Title VII"); the New York State Human Rights Law ("State HRL"), N.Y. Exec. Law § 290, et seq. ; and the New York City Human Rights Law ("City HRL"), Admin. Code of the City of New York § 8-101, et seq. ; and
(b) her disability (infertility), in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. ; and the State and City HRL; and
(2) retaliated against her in violation of the First Amendment; Title VII; and the State and City HRL.


 I. Timeliness, and Non-Application of the New ...

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