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August 5, 1998

MARGARET A. NAUGHTON MARSHALL, Plaintiff, -v.- STATE OF NEW YORK DIVISION OF STATE POLICE, JAMES P. McMAHON in his Official Capacity as Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, DAVID M. LUITWEILER, in his Official Capacity as former First Deputy Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, FRANCIS A. DEFRANCESCO, in his Official Capacity as Chief Inspector of the NEW YORK STATE DIVISION OF STATE POLICE, and THOMAS A. CONSTANTINE, in his Official Capacity as former Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, Defendants.

The opinion of the court was delivered by: MCAVOY


 Currently before the Court is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 56. The instant claim arises from a civil action filed by plaintiff Margaret A. Naughton Marshall, a civilian employee of the State of New York Division of State Police, against the State of New York Division of State Police ("State Police"), and James P. McMahon, David M. Luitweiler, Francis A. DeFrancesco, and Thomas A. Constantine in their official capacities. Ms. Marshall brings suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), claiming sex discrimination. Ms. Marshall alleges she was twice denied promotion based on her gender. She also alleges that Defendants retaliated against her after she filed a complaint with the Equal Employment Opportunity Commission ("EEOC").


 Ms. Marshall was hired by the State Police on October 28, 1976, as a Senior Budgeting Analyst Trainee I. After one year of employment, Ms. Marshall's position was upgraded to Senior Budgeting Analyst Trainee II. Following another year of employment, Ms. Marshall's position was again upgraded to Senior Budgeting Analyst.

 In 1982, Richard Keeley, a male co-worker of Ms. Marshall's, was promoted to the position of Associate Budget Analyst. Both Mr. Keeley and Ms. Marshall had applied for the Associate Budget Analyst position. Ms. Marshall felt she was the more qualified candidate, and informally expressed her displeasure to her superiors following Mr. Keeley's promotion. One year later, Ms. Marshall was upgraded to the position of Associate Budget Analyst.

 In 1992, it was announced that Tom Ryan, the Assistant Director of Fiscal Management, was planning to retire. (Pl.'s Dep. at 109-112). Ms. Marshall discussed the opening with Hanford Thomas, the Director of Fiscal Management. Recounting the promotion of Mr. Keeley, Ms. Marshall expressed her concern that there had never been a "level playing field" at the State Police with regard to gender, and that this would affect her chances of being promoted to the Assistant Director position. (Pl.'s Dep. at 120-24). She then asked Mr. Thomas if she had a realistic chance of being promoted to the Assistant Director position, and, according to Ms. Marshall, he replied it "depended on whether or not they viewed this assistant director's job as a training position for the director's job." (Pl.'s Dep. at 122). Given the context of the discussion, Ms. Marshall took this to mean that the State Police would be unwilling to promote a woman to the Director position, and if the Assistant Director position was viewed as a step to that position, she would be denied promotion to the Assistant Director position based on her gender.

 Following Mr. Ryan's retirement, the State Police posted the job opening. Ms. Marshall applied and was interviewed, but was not chosen for the position. Instead, William J. Callahan, a Senior Budget Examiner with the New York State Division of the Budget, was appointed to the position on October 15, 1992. Ms. Marshall filed suit with the EEOC on April 30, 1993, alleging that the promotion of Mr. Callahan constituted gender discrimination.

 In 1994, the position of Director of Fiscal Management became vacant. Ms. Marshall and Mr. Callahan applied for the job and were interviewed. Following the interview process, Mr. Callahan was selected for the position. The promotion of Mr. Callahan to the Director position left the Assistant Director position open. Ms. Marshall again applied for the Assistant Director position. She was interviewed and promoted to the position, which she currently holds.

 In addition to her initial claims of sex discrimination under Title VII, Ms. Marshall brings allegations of retaliatory treatment for her filing of the EEOC complaint, including the refusal to appoint her Director of Fiscal Management in 1994. Defendants move for Summary Judgment claiming that the record shows no issue of material fact.


 1. The Standard for Summary Judgment

 In considering a motion for summary judgment the Court must resolve all ambiguities and draw all inferences in favor of the party defending against the motion. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). Summary judgment shall enter if the Court determines "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In opposing a motion for summary judgment, the non-movant must demonstrate to the court that issues of fact exist that must be decided by a factfinder because "they may reasonably be decided in favor of either party." Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).

 In light of these considerations the Court considers Defendants' Motion for Summary Judgment.

 2. Plaintiff's Title VII Sex Discrimination Claims

 Actions brought pursuant to Title VII involve a burden shifting analysis See, e.g., Russo v. Trifari, Krussman & Fishel, 837 F.2d 40, 43 (2d Cir. 1988). A plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. The burden then shifts to the defendant to provide a legitimate nondiscriminatory reason for the alleged discriminatory act. If the defendant meets this burden, the burden shifts back to the plaintiff, who can defeat defendant's showing by proving, by a preponderance of the evidence, that defendant's proffered explanation is merely pretext for discriminatory action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364, 1369 (2d Cir. 1989). The Supreme Court has interpreted pretext to mean not only that the employer's explanation is false, but that "the real reason was intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). The Court now examines each step in the burden shifting analysis of Plaintiff's Title VII claim. Because Plaintiff's Memorandum of Law grounds her Title VII claim in her 1992 and 1994 promotion denials, the Court will confine its burden shifting analysis to these two incidents. (Pl.'s Mem. of Law at 13).

 a. Plaintiff's Prima Facie Case

 Plaintiff may prove her prima facie case by showing that: (1) she belongs to a protected class; (2) she was qualified for the position for which she applied; (3) despite her qualifications, she was subjected to an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination, or direct evidence demonstrates that Defendants discriminated against her. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1239 (2d Cir. 1995).

 There is no dispute that Plaintiff, a woman, belongs to a protected class as defined by Title VII. See 42 U.S.C. § 2000e-2(a)(1). Nor are Plaintiff's qualifications in dispute. She met the qualifications for both the Assistant Director and Director of Fiscal Management positions. Following a review of resumes by the State Police, Plaintiff was selected to be interviewed for, and was ultimately promoted to, the position of Assistant Director in 1994. Nor is it disputed that Plaintiff was not hired as Assistant Director in 1992 and as Director in 1994, and was thus subjected to an adverse employment action.

 Plaintiff must show, however, that direct evidence supports her allegations of discrimination or that circumstances surrounding her allegations give rise to an inference of discrimination. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (2d Cir. 1982). Although the Court finds no direct evidence supporting Plaintiff's allegations, an inference of discrimination is present when a hiring or promotional preference is given to a member of a non-protected group. Powell v. Syracuse University, 580 F.2d 1150, 1156 (2d Cir. 1978). In the instant case, William J. Callahan, a white male, was selected over ...

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