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October 5, 1999


The opinion of the court was delivered by: Sweet, District Judge.


Defendants Timothy Dolph ("Dolph") and the City of White Plains ("White Plains" or "the City") have moved for summary judgment, pursuant to Rule 56, Fed. R.Civ.P., dismissing the complaint of plaintiff Dorothy Brennan ("Brennan"), who has alleged sexual discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., ("Title VII"), 42 U.S.C. § 1983 ("Section 1983"), and the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the "Human Rights Law").

Upon the findings and conclusions set forth below, the motion of Dolph will be granted, and the motion of White Plains will be granted in part, and denied in part.

The Parties

Brennan has been an employee of White Plains since 1974, and claims gender-based discrimination and/or retaliation from 1981 to the present.

Dolph is the Senior Personnel Assistant of White Plains, and has held that position since December 2, 1991. From December of 1996 until March of 1998, Dolph was formally authorized by the White Plains Common Council to perform the duties of the City's Personnel Officer.

White Plains is a municipality located within the State of New York.

Prior Proceedings

Brennan commenced this action on April 17, 1997, which was the subject of a prior opinion of this Court, familiarity with which is assumed. See Brennan v. City of White Plains, No. 97 WL 756092, 1998 WL 75692 (S.D.N.Y. Feb.20, 1998). After preliminary motion practice an amended complaint was filed on March 11, 1998.

Brennan's amended complaint (the "complaint") contains six causes of action, alleging sexual discrimination and/or retaliation spanning a period of approximately two decades. The complaint asserts. inter alia, discrimination (1) in the determination of Brennan's pay grade; (2) in responding to various requests for pay grade reclassifications; (3) in failing to consider Brennan for a Deputy Commissioner position; and (4) in rejecting Brennan's application for an Assistant Budget Director position, and subsequently disqualifying her from competing for a Deputy Budget Director position. Her complaint also asserts that, after complaining in 1995 to her superiors about the discriminatory treatment she was receiving, she was subject to various forms of retaliation. Brennan's first and second causes of action are brought against the City pursuant to Title VII. Her third cause of action is brought against the City pursuant to Section 1983, as is the fourth cause of action brought against Dolph in his individual capacity. Brennan's fifth and sixth causes of action are brought against White Plains and Dolph pursuant to the Human Rights Law. In addition to requesting injunctive relief and compensatory damages, Brennan's prayer for relief also seeks punitive damages in this action.

The instant motions were made after the completion of discovery, and were heard and marked fully submitted on May 19, 1999.

The Facts

The facts are gleaned from the parties' Rule 56.1 statements, affidavits, and exhibits, and are not in dispute except as noted below. The content of certain oral statements is disputed, but for the instant purposes, Brennan's versions of those statements are accepted.

Brennan was hired by White Plains as a Clerk/Typist in 1974. Her "pay grade" at that time was three, though in the following years she changed positions several times with corresponding pay grade increases. In 1976, Brennan was promoted to a position as Senior Stenographer, with a pay grade of six. In 1979, she was promoted to the position of Assistant to White Plains' Commissioner of the Department of Public Safety. Her pay grade for that position was eleven.

The Department of Public Safety ("Public Safety") is White Plains' largest department, and is responsible for police services, firefighting, and emergency planning. In 1995 its budget was $32 million, which accounted for 40 percent of the City's entire budget. Of the City's 900 authorized positions, 50 percent were assigned to Public Safety. There is no dispute as among the parties that Public Safety is an important and vital department within the City's departmental hierarchy, and that Brennan has executed her position's significant responsibilities with skill and dedication.

The City's Personnel Department is responsible for overseeing personnel matters in the City's fifteen departments. The Personnel Department is headed by the City's Personnel Officer.

In July of 1990, Brennan again requested — with the support of Dolce — that her position at Public Safety be upgraded. Her request was denied, however, by Personnel Officer Stephen Kaluczky ("Kaluczky"), who concluded that there was no justification for an upgrade. More specifically, in a memorandum sent to Deputy Director Motto, Kaluczky indicated that neither Brennan's length of service with Public Safety nor Brennan's heavy volume of work constituted bonafide reasons for an upgrade of Brennan's position. Brennan thereafter complained to Motto that she did not believe she had received fair consideration, and Kaluczky reviewed her reallocation request. However, Kaluczky refused to reconsider his earlier decision, and when Brennan complained to Dolce that the denial was discriminatory, Dolce is alleged to have responded that "women are not minorities."

In March of 1991, after learning of the imminent retirement of Deputy Commissioner Motto, Brennan advised Dolce that she was interested in the Deputy Commissioner position. Despite a written request; Brennan was not considered for the position. Brennan asserts that Motto told her that Dolce would never appoint her because she was a woman. Though the parties disagree vigorously concerning Brennan's qualifications for the position, Brennan asserts that she performed some of the Deputy Commissioner's functions without any change in pay or title from Motto's retirement in December of 1991 until January of 1993, when Motto's position was filled by a male replacement.

According to Dolce, however, it was Brennan's lack of real police experience that disqualified her from serious consideration for the position — experience that Dolce considered vital considering the Deputy Commissioner's responsibilities and the potential that Motto's replacement could be called upon to temporarily occupy Dolce's position in an emergency. In Dolce's view, moreover, Brennan would have "absolutely no credibility with the men" because of her administrative background. White Plains' Police Bureau has approximately 200 police officers, 11 or 12 of whom are female. There are currently no female sergeants or captains. Two of the eight lieutenants are female. Of the 170 personnel in the City's Fire Bureau, none are female.

As described by former Deputy Commissioner Motto, the Deputy Commissioner's important duties consisted of formulating disciplinary rules and conducting disciplinary hearings, resolving and hearing complaints against taxis, overseeing the alarm ordinance, overseeing the weights and measures bureau, and supervising and participating in the issuance of licenses and permits. The parties disagree as to whether Brennan would have been adequately prepared to assume all of Motto's responsibilities.

A White Plains Senior Personnel Analyst since 1991, Defendant Dolph informally assumed the responsibilities of Personnel Officer Kaluczky in late 1994 or early 1995. From December of 1996 until March of 1998, Dolph was officially authorized by the White Plains Common Council to perform the duties of Personnel Officer.

In January of 1994, Brennan took a civil service exam for the position of Assistant Budget Director. Four of the ten applicants to the position passed the exam, and Brennan received the second highest score. However, when the highest scoring applicant removed himself from the eligibility list, and another eligible candidate was removed by Dolph for failure to meet the position's minimum qualifications, the list was determined to be non-mandatory. Brennan was bypassed for the position in favor of a provisional employee who had been appointed in 1991 but failed the examination. This provisional employee, who was reappointed in September of 1994, was a woman of child-bearing age. Brennan later complained to Dolph about not being considered or interviewed for the Assistant Budget Director position, but the decision to reappoint the provisional was made by White Plains' Budget Director Eileen Earl.

In January of 1995, Dolce once again requested that Brennan's position be reallocated to a higher pay grade. In a memorandum directed to Kaluczky, Dolce requested that her position be increased to a pay grade of seventeen. However, while this request should have been promptly forwarded by Kaluczky for investigation and analysis, it was not. Kaluczky, who had been experiencing a problem with excessive absenteeism, began a period of extended sick leave in February of 1995.

City Personnel Assistant Diane Riddick ("Riddick") spoke to Brennan concerning the delay, and forwarded Brennan a position questionnaire to fill out. The completed questionnaire was reviewed by Riddick, who also spoke to Brennan concerning her reallocation request. Dolph reviewed the questionnaire as well, in addition to other information provided by Brennan and Riddick. He then spoke with Brennan, Dolce, and Earl concerning the request.

According to Dolph, Riddick indicated that she believed Brennan to be overstating her level of responsibility for or involvement with a number of activities. During Dolph's interview with Brennan, Dolph asked a number of questions concerning Brennan's level of responsibility within Public Safety.

However, Brennan took umbrage at Dolph's questioning. In response to questions that Brennan believed underestimated her job responsibilities, Brennan informed Dolph of the Personnel Committee's remarks that had been relayed to her back in 1981 — that she had been denied a reallocation because she was a "young girl" and could get "married and pregnant." Brennan also told Dolph that she hoped that she would not be denied reallocation once again because of her sex. In a contested statement, Dolph allegedly told Brennan "maybe you should wait until menopause [for the promotion]."

After her conversation with Dolph, Brennan met with Kevin Fish ("Fish"), White Plains' newly-appointed Executive Officer and a member of the Personnel Committee. Brennan told Fish that she believed that she had been discriminated against in the past, and that she hoped to get a fair and objective evaluation of her reclassification request. Fish assured Brennan that he would not countenance discrimination, but added: "But I got to tell when I think of your position I think of a girl sitting at her desk all day chewing gum." Moreover, in a conversation with ...

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