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