the City ultimately expects that the position will be deemed
When Brennan sought to take this exam in January of 1998,
however, she was prevented from doing so. The initial
determination of Brennan's disqualification was made by Tony
Pena, a Civil Service Assistant, with the input of John Powell,
the Commissioner of Finance. According to Dolph, Brennan was
disqualified because she was neither a CPA nor an internal
auditor. Brennan appealed, pointing out that she had already been
conducting internal auditing for Public Safety for more than
three years, and presenting a confirming letter from Commissioner
Dolce. However, her appeal to Dolph was unsuccessful. The
position was ultimately filled by the same woman who had earlier
been reappointed to the Assistant Budget Director position.
Finally, Brennan has claimed that Dolph has restricted her
access to various items information in the wake of her claims of
discrimination, and that he has deliberately delayed or avoided
complying with requests for documents submitted pursuant to New
York's Freedom of Information Law ("FOIL"), Public Officers Law,
art 6, §§ 84 et seq. However, these allegations do not appear
in her complaint.
I. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue of material fact remaining for trial and the
moving party is entitled to judgment as a matter of law." The
Second Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Kay-R Elec. Corp.
v. Stone & Webster Constr. Co., 23 F.3d 55, 56 (2d Cir. 1994)
(citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.
1988)). If, when viewing the evidence produced in the light most
favorable to the nonmovant, there is no genuine issue of material
fact, then the entry of summary judgment is appropriate. See
Burrell v. City Univ. of New York, 894 F. Supp. 750, 758
(S.D.N.Y. 1995) (citing Binder v. Long Island Lighting Co.,
933 F.2d 187, 191 (2d Cir. 1991)).
In addition to the foregoing standards, the Second Circuit has
held that additional considerations must be taken into account
when deciding whether summary judgment should issue in an
employment discrimination action. See Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); see also
Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d
Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Because writings directly supporting a claim of intentional
discrimination are rarely, if ever, found among an employer's
documents, a trial court must be particularly cautious about
granting summary judgment when the employer's intent is at issue.
Affidavits and depositions must be scrutinized for circumstantial
evidence which, if believed, would show discrimination. See
Gallo, 22 F.3d at 1224.
This does not suggest, however, that summary judgment is never
appropriate in an employment discrimination action. As the Second
Circuit has noted, the "impression that summary judgment is
unavailable to defendants in discrimination cases is
unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d
Cir. 1994). Where no evidence exists or only conclusory
allegations of discrimination have been offered to suggest that
an employer's motives are improper, summary judgment may be
appropriate. See Meiri, 759 F.2d at 998; see also Woroski v.
Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994). After all, a
party seeking to defeat a summary judgment motion cannot rely
upon "conclusory allegations or denials," but rather must set
forth "concrete particulars" showing that a trial is needed.
National Union Fire Ins.
Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group Inc. v. Horn & Hardart Co., 751 F.2d 69, 77
(2d Cir. 1984)). "`[M]ere speculation or conjecture as to the
true nature of the facts [cannot] . . . overcome a motion for
summary judgment.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d
Cir. 1995) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9,
12 (2d Cir. 1986)). The responding party "must show the existence
of a disputed material fact in light of the substantive law."
Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 564
II. The Legal Standards Governing Title VII, Section 1983, and
Human Rights Law Claims
As the Second Circuit has explained, the "ultimate issue" in
any employment discrimination case is "whether the plaintiff has
met her burden of proving that the adverse employment decision
was motivated at least in part by an `impermissible reason.'"
Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d