(4) The Plaintiff's Ultimate Burden
Plaintiff offers five credible reasons for disbelieving the
Defendants' explanation that she was fired in a move designed to
bring "fresh" perspective to the Sheriff's Office by sweeping out
Dinkins' Administration appointees.
First, and most importantly, the Defendants rehired the five
individuals similarly situated to Plaintiff who were fired along
with Plaintiff during the February 1995 sweep, all of whom were
younger than Plaintiff and four of whom were male. Second,
Plaintiff was a registered Republican who never said or did
anything on the job that caused Katsorhis to believe that she was
not committed to the Giuliani agenda. Third, Plaintiff was the
lowest level provisional manager fired from the Sheriff's Office,
and was therefore not in a sensitive policy-making position.
Fourth, other individuals who were more closely associated with
Sheriff Crimaldi and the Dinkins Administration were not removed.
Fifth, certain young, male provisional managers hired during the
Dinkins administration were not fired during the February 1995
"purge," including at least one who received his most recent
promotion at the end of the Dinkins Administration.
Plaintiff also offers reasons to dispute the Defendants'
explanation for why she was not immediately rehired along with
three of her colleagues and why Defendant Katsorhis did not
advocate for her immediate rehire, as he did for five of her
colleagues, four of whom were male. Plaintiff has adduced
evidence indicating that her job was important to the functioning
of the Sheriff's Office and that her supervisor's opinion was not
sought before the termination. That Plaintiff's job was important
and could not be handled by existing staffers is buttressed by
the Defendants' decision to hire a replacement soon after her
termination, and Plaintiff's sound work performance is further
established by the COIB's decision to extend her a job offer on
the day of her interview due in part to strong Sheriff's Office
A jury could reject the Defendant's proffered explanations in
light of these factors and, when combined with the evidence set
forth in Plaintiff's ADEA prima facie case, conclude that the
real reason for her termination and subsequent treatment was
age-based discrimination. The argument with respect to
Plaintiff's Title VII claim presents a closer question, for her
Title VII prima facie case was not particularly strong and the
Second Circuit has made clear that "[i]f the plaintiff's evidence
was barely sufficient to make out a prima facie case, it may
not be sufficient to establish discrimination after the defendant
has proffered a neutral rationale." Stern v. Trustees of
Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997). Nonetheless,
we conclude that it would be inappropriate to grant the
Defendants' Motion on the Title VII count in the light of the
fact that six men were hired just before her termination, four of
these men filled positions similar to Plaintiffs, all men fired
along with Plaintiff were subsequently rehired, all of the
relevant decisions were apparently made by men, and because the
Defendants' explanations for the treatment Plaintiff received
appear inconsistent with available facts.
We are aided in this conclusion by Defendant Katsorhis's
post-termination statement to Plaintiff indicating that the she
was fired due to budgetary reasons, an explanation the Defendants
now explicitly disavow. See supra note 4. Why Katsorhis felt
compelled to offer Plaintiff a false justification for her
termination only hours after she expressed concern that she was
being treated differently from her male colleagues is a question
properly left to a jury.
The presence of disputed material facts regarding the
circumstances of Plaintiff's termination, and the subsequent
decisions not to rehire her, preclude summary judgment.
Accordingly, we deny Defendants'
Motion as to Plaintiff's Title VII and ADEA claims.
Plaintiff's SHRL and CHRL Claims Against the Individual
Defendants argue that the Court lacks subject matter
jurisdiction over Plaintiff's state law claims against the
individual defendants under the election of remedies provisions
that govern SHRL and CHRL claims. The relevant SHRL section reads
Any person claiming to be aggrieved by an unlawful
discriminatory practice shall have a cause of action
in any court of appropriate jurisdiction for damages
and such other remedies as may be appropriate, unless
such person had filed a complaint hereunder or with
any local commission on human rights, . . . provided
that, where the division has dismissed such complaint
on the grounds of administrative convenience, on the
grounds of untimeliness, or on the grounds that the
election of remedies is annulled, such person shall
maintain all rights to bring suit as if no complaint
had been filed with the division.
N Y Exec. Law § 297 (McKinney's 1999). The CHRL contains
essentially identical language and allows a plaintiff to file
suit "in any court of competent jurisdiction . . . unless such
person has filed a complaint with the city commission on human
rights or with the state division of human rights with respect to
such alleged unlawful discriminatory practice or act of
discriminatory harassment or violence." N.Y.C. Admin. Code §
8-502(a). Defendant points out that prior to commencing the
instant action, Plaintiff filed a charge of employment
discrimination with the New York State Division of Human Rights.
Plaintiff concedes that because she filed a claim with the New
York State Division of Human Rights, her SHRL claims are barred.
(See Pl's Br. at 27 n. 13.) Plaintiff contends, however, that
her CHRL claims remain properly before the Court because she did
not raise them before the New York State agency. Plaintiff's
approach distorts the plain meaning of the election of remedies
provisions, which operate to foreclose access to courts regarding
any "discriminatory practice" or act of harassment for which a
claim is made "with the city commission on human rights or with
the state division of human rights." N.Y.C. Admin. Code §
8-502(a) (emphasis added).
Plaintiff attempts to circumvent this clear statement by noting
the different remedies available under the City and State
provisions and the more expansive conception of discrimination
used in the CHRL, apparently arguing that the remedy sought —
rather than the discriminatory act complained of — lies at the
heart of the election of remedies analysis. Plaintiff therefore
asserts that "[b]y invoking the weaker protections of the State
Human Rights Law in an administrative forum, plaintiff was hardly
making a choice to forego a judicial action under the more potent
City law." (Pl's Br. at 27.)
That Plaintiff may not have intended to forego her right to
initiate judicial action pursuant to the CHRL by asserting an
SHRL claim before the State agency does not alter the terms of
the election of remedies provisions. The SHRL claims previously
asserted and the CHRL claims now raised arise from the exact same
discriminatory practices. Having elected to pursue redress for
those grievances before the SHRL, Plaintiff is now foreclosed
from bringing either CHRL or SHRL claims before this Court. This
result is in accord with the great weight of the authority from
within this District. See DiPalto v. New York City Off Track
Betting Corp., 94 Civ. 5773(KMW), 1998 WL 276180, at *3
(S.D.N.Y. May 28, 1998); Branker v. Pfizer, Inc., 981 F. Supp. 862,
865 (S.D.N.Y. 1997); Lyman v. City of New York, 96 Civ.
2382(PKL), 1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997); Del
Valle Hernandez v. New York City Law Dept. Corp. Counsel, 94
Civ. 9042(AJP)(SS), 1997 WL
27047, at *11 (S.D.N.Y. Jan. 23, 1997); Hourahan v. Ecuadorian
Line, Inc., 95 Civ. 10698(AGS), 1997 WL 2518, at *6 (S.D.N Y
Jan. 3, 1997); Koster v. Chase Manhattan Bank, 609 F. Supp. 1191,
1196 (S.D.N.Y. 1985); Collins v. Manufacturers Hanover
Trust Co., 542 F. Supp. 663, 672-73 & nn. 4-5 (S.D.N.Y. 1982).
For the foregoing reasons, Defendant's Motion is denied as to
Plaintiff's Title VII and ADEA claims and granted as to
Plaintiff's SHRL and CHRL claims.
Upon receipt of this Memorandum and Order, the parties are to
contact the Court to request a pretrial conference during the
week of April 12, 1999, at which time the Court will set a trial
date and a date for submission of a joint pretrial order.