United States District Court, Southern District of New York
September 27, 2000
DELFRIEDA JONES, PLAINTIFF,
CITY OF MOUNT VERNON; CITY OF MOUNT VERNON DEPARTMENT OF PUBLIC SAFETY, BUREAU OF POLICE; AND CITY OF MOUNT VERNON, CIVIL SERVICE COMMISSION; DEFENDANTS.
The opinion of the court was delivered by: William C. Conner, Senior District Judge.
OPINION AND ORDER
Plaintiff Delfrieda Jones brings this action against
defendants the City of Mount Vernon (the "City"), and the Mount
Vernon Department of Public Safety, Bureau of Police and Civil
Service Commission pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. and the New
York State Human Rights Law, N.Y.Exec.Law § 290 et seq.
Plaintiff claims that she was not hired as a police officer by
the City because of her sex.*fn1 This Court conducted a
two-day bench trial on June 19 and June 20, 2000, and now sets
forth its findings of fact and conclusions of law pursuant to
Fed.R.Civ.P. 52(a). For the reasons discussed below, we enter
judgment in favor of defendants on all claims.
FINDINGS OF FACT
In a document entitled "Examination," the Mount Vernon Civil
Service Commission (the "Commission") announced that Examination
No. 66-487 for the position of police officer would take place
on October 29, 1983. (Defs.Ex.A.) On September 9, 1983,
plaintiff completed an "Application for Examination for
Employment" for the position of police officer and submitted it
to the Commission for processing. (Pl.Ex. 1; Defs.Ex. B.)
Two staff members, Rita Roque and Lavinia Hodgins, oversaw the
day-to-day operations of the Commission. Members of the
Commission came into the office at least twice a month for
meetings. (Tr. 35, 160-61.) Roque has been the secretary to the
Commission since 1978, (Tr. 160), and Hodgins has been the
senior typist since 1977. (Tr. 35.) Roque's and Hodgins' job
duties include typing civil service examination notices, making
certain types of medical and psychological examination
appointments for applicants, reviewing the paperwork submitted
by applicants and physicians, and generally performing all of
the clerical functions associated with processing civil service
applications. (Tr. 36, 161.) Roque testified that in the last
twenty years, she and Hodgins have processed thousands of
applications. (Tr. 161.)
Plaintiff took the written Civil Service Examination on
October 29, 1983, and a physical agility test on April 7,1984.
She received a letter from Roque dated May 22, 1984 notifying
her that her final examination rating was seventy-three percent
and that she was number thirty-five on the "eligible list" for
Mount Vernon residents. (Pl.Ex. 2; Defs.Ex. C.) The letter
informed plaintiff that the duration of the eligibility list was
two years "unless it is exhausted prior to that date." (Id.)
In a letter dated August 12, 1985, plaintiff was notified that
she should appear at the Mount Vernon Neighborhood Health Center
for medical testing related to her application for employment as
a City police officer. (Pl.Ex. 5; Defs.Ex. E.) On August 30,
1985, plaintiff submitted to the medical tests required of all
applicants, including measurement of her height and weight.
(Pl.Ex. 6; Defs.Ex. F.)
At the time plaintiff sought employment with the City, the
police department utilized the height/weight standards
promulgated by the New York State Division of Criminal Justice
Services, Municipal Police Training Council (the "Municipal
Training Council"). (Pl.Exs. 11, 12; Defs.Ex. D.) The
height/weight standards are set forth in a chart in a manual
developed by the Municipal Training Council. (Id.) The manual
states that if the weight of an applicant is within twelve
percent of the upper weight limit set forth on the table for the
applicant's height and body frame, it will be deemed acceptable.
(Defs.Ex. D at 5.) However, if the weight of the applicant is
more than twelve percent over the maximum weight:
the candidate may, at his option and at his own
expense, have further fitness and stress tests
performed on him so that he can present the examining
physician with evidence of his fitness in spite of
his failure to meet the weight standard. If the
candidate has such tests performed by an appropriate
expert, the results of those tests should be
presented to the examining physician who then may
certify the candidate for appointment if he asserts
in his medical opinion that the candidate is fit and
can perform the necessary physical duties of a police
The Commission was charged with checking the medical reports
issued by the physicians who performed the medical examinations
of the applicants. Using a checklist supplied by New York State,
Roque or Hodgins would check the data on the medical forms
against the various requirements for police officer candidates.
Hodgins testified that she would check the weight of the
applicants against the forms supplied by New York State, adding
twelve percent to the maximum, to ensure that the applicant met
the guidelines. (Tr. 41-42.) Hodgins said that she would
"usually" check the applicant's weight against the height/weight
ratio even if the examining physician had indicated on the
applicant's medical examination form that the applicant met the
weight standard. (Tr. 42.)
Plaintiffs medical examination report stated that plaintiff
was "mildly overweight (about 12 pounds)," (Pl.Ex. 6; Defs. Ex.
F), and a box was checked on the form indicating that plaintiff
met the physical fitness standards required by New York State.
The form also stated that plaintiff "is on a strict low calorie
diet" and that her weight "defects" were "remediable." (Id.)
Plaintiff was recorded as being five feet, five and one-half
inches tall and 170 pounds with a medium frame. (Id.)
Hodgins testified that the physician who examined plaintiff
"was wrong" when he checked the box on the form stating that
plaintiff met the Municipal Training
Council's physical fitness requirements. (Tr. 79.) Plaintiff was
informed by a letter from the Commission dated September 9, 1985
that she was ineligible for appointment to the position of
police officer as her weight exceeded the maximum weight for
applicants of her height by fifteen pounds, but that if she lost
the weight she would be reconsidered at that time. (Pl.Ex. 7;
The parties stipulated at trial that "every applicant on that
[Civil Service] list and on other [Civil Service] lists received
a letter comparable to that which the plaintiff received,
notifying him that he did not meet the weight requirements and
not notifying him of the alternative of the stress test." (Tr.
49.) Plaintiffs medical examination form, which plaintiff
signed, stated that "[i]f weight is over or under the acceptable
weight shown in the tables by an excess of 12%, attach results
of additional stress and fitness tests pursuant to page 5 of the
standards." (Pl.Ex. 6; Defs.Ex. F.)
Plaintiff testified that she read that portion of the form
before signing the document. Plaintiff testified as follows:
Q. . . . That [Pl.Ex. 6; Defs.Ex. F] was a document
you read before you signed it?
Q. And you read that portion of the document?
A. I'm pretty sure I did.
Q. Did you ask anyone about the stress test that was
mentioned in this document?
Plaintiff testified that after she received the letter in
September, she did not ask anyone at the Commission about the
option of taking a stress test, nor did anyone from the
Commission inform her of the alternative of taking a stress
test. (Tr. 9, 19.) Before the expiration of the eligibility
list, plaintiff orally informed the Commission that she had lost
ten pounds. As a result, the Commission scheduled her for
additional medical tests. (Tr. 9-11.) Plaintiff submitted to
additional medical testing at the Mount Vernon Hospital,
Pulmonary Function Lab. The tests indicated that plaintiff
weighed 165 pounds — still over the maximum weight allowed under
the requirements set by the Municipal Training Council.
The parties stipulated at trial that the civil service
eligibility list based upon test No. 66-487, the test plaintiff
took, expired on May 21, 1986. (Tr. 46.) At the time the list
expired, plaintiff still weighed more than the maximum weight
for her height allowed by the Municipal Training Council. (Tr.
As stated above, under the existing rules promulgated by the
Municipal Training Council, applicants who were overweight could
nevertheless be considered for appointment if they opted to take
a stress test at their own cost. The City did not pay for the
stress test of any applicant who took one. (Defs.Ex. D; Tr. 68.)
However, plaintiff introduced evidence that several male
officers, most from other eligibility lists, were hired after
submitting to a stress test.
Only one individual who took the same Civil Service
Examination as plaintiff on October 29, 1983 and was found to be
overweight took a stress test at his own cost. In March 1985,
Robin Martin underwent a physical examination in which the
physician noted that he had "obesity" and "moderately elevated
blood pressure." (Pl.Ex.14.) Martin was notified by letter that
he was not eligible for appointment to the position of police
officer because he was eighty-six pounds over the maximum weight
allowable for his height. (Id.) Like plaintiff, Martin was
told to contact the Commission when he lost the required weight.
Hodgins and Roque both testified that they did not notify Martin
of the stress test option. (Pl.Ex. 15; Defs.Ex. M; Tr. 63,
162-63.) Martin subsequently underwent a stress test and was
certified for consideration for appointment. (Tr. 62, 162-63.)
Plaintiff offered no evidence that Martin had been notified of
test option by anyone at the Commission or the Mount Vernon
Testimony was introduced at trial that several other
individuals who took the Civil Service Examination before and
after plaintiff did submitted to stress tests on their own and
provided the results to the Commission.*fn2
Theresa Refino, a female, took the Civil Service Examination
in November of 1981. (Defs.Ex. N.) Refino was found to be five
feet, two inches tall and 150 pounds. It was determined that
Refino was overweight under the Municipal Training Council
guidelines. (Defs.Ex. N; Tr. 63.) Refino underwent a stress test
on August 30, 1982. Her physician concluded that she had "[g]ood
conditioning with negative stress test for cardiovascular
disability." (Defs.Ex. N.) Refino submitted those results to the
Commission and was appointed to the position of police officer.
Joseph Radzinski took the Civil Service Examination in
December 1985. (Pl.Ex. 20; Defs.Ex. P.) At six feet, one inch
tall and 231 pounds, Radzinski was found to be overweight under
the Municipal Training Council guidelines. (Id) In April 1987,
Radzinski submitted to a stress test, the results of which were
normal. (Id.) Radzinski was hired by the City as a police
officer in June 1987. (Tr. 177.)
Radzinski testified regarding the stress test as follows:
Q. And how did you know about this stress test
A. I knew about it from the City of New York Police
Q. And how did you become aware of it from the City
of New York Police Department?
A. When I got hired there, I think I had to go for
a stress test, also.
Q. Now, were you told by anyone in the City of Mt.
Vernon Police Department about the stress test
Pascal Storino took the Civil Service Examination in July
1985. (Pl.Ex. 21; Defs.Ex. Q.) At five feet, ten inches tall and
229 pounds, Storino was determined to be overweight under the
Municipal Training Council guidelines. (Id.) Storino submitted
to a stress test on January 22, 1986. The results of the stress
test were normal and Storino was appointed as a City police
officer in February 1986. (Id.)
Matthew Lombardo took the Civil Service Examination for police
officer applicants in December 1987. (Defs.Ex.O.) Lombardo, at
five feet, eight inches tall and 214 pounds, was found to be
overweight under the guidelines. (Pl.Ex. 23; Defs.Ex. 0.)
Lombardo underwent a stress test at his own expense in November
1984. The results of the stress test were reported to the
Commission's examining physician who determined that Lombardo's
working capacity was average for his age group, although he had
a "hypertensive response to exercise." (Id.) The examining
physician submitted a note to the
Commission stating that Lombardo was fit to be a police officer,
(id.), and Lombardo was appointed in 1989. (Defs.Ex.O.)
Other police officer candidates overcame the weight
restrictions by submitting a note from their personal physician
certifying that their excess weight was due to "lean body mass."
For example, Thomas Strauss, who applied to be a police officer
in 1987, was found to be five feet, ten inches tall and 208
pounds with a large body frame. The guidelines provided that the
maximum weight for an individual with these measurements was 201
pounds. (Defs.Ex.HH.) Strauss submitted a note from his
physician stating that "his weight is over that allowed on
weight chart due to lean body mass. Secondary to weight lifting
and athletic training." (Id.)
Likewise, Michael LaRotundo, who applied in 1983, was found to
be five feet, eight inches tall and 192.5 pounds with a large
frame. Based on these measurements, he was determined to be over
the guidelines provided by the state. (Pl.Ex. 27; Defs.Ex. GG.)
However, LaRotundo provided a note from his physician dated
February 1985 stating that the "excess weight was due to lean
body mass." (Id.) LaRotundo subsequently was certified for
appointment. (Tr. 132.)
John Arcuri, who qualified for appointment in September 1989,
was found to be five feet, eight inches tall and 194 pounds with
a medium frame. (Pl.Ex. 1; Defs.Ex. CC.) Based on these
measurements it was determined he was in excess of the
guidelines. However, Acuri provided the Commission with a note
from a physician stating that he had "slight excess weight due
to lean body mass secondary to weight training and is
acceptable." (Pl.Ex. 19; Defs.Ex. CC.)
Rocco Capoccia was found to be five feet, ten and one-half
inches tall and 230 pounds with a large frame. Based on these
measurements, he was in excess of the guidelines. Capoccia was
informed by letter that if he did not lose the necessary weight,
he could not be certified for appointment. (Defs.Ex.EE.)*fn3
Capoccia subsequently provided the Commission with a stress test
indicating his fitness for the position.*fn4 (Defs.Ex.EE.)
David Urban, who was measured at five feet, ten inches and who
weighed 193 pounds, was appointed a police officer on May 20,
1989 after the Commission's examining physician certified on
April 22, 1989 that his "excess weight [was] due to lean body
mass from exercise." (Pl. Ex.25.)
Several male candidates who took the October 29, 1983 Civil
Service Examination with plaintiff failed to meet the weight
guidelines set by the Municipal Training Council and were not
certified by the Commission as eligible for consideration to be
hired as a police officer.
Thomas Gannon took the Civil Service Examination on October
29, 1983. Gannon was ranked number sixteen on the Civil Service
Non-Resident List. (Defs.Ex.L.) Gannon was not certified by the
Commission to be considered for appointment to the position of
police officer in the City because he was overweight.
(Defs.Ex.L.) Neither Hodgins nor Roque advised
Gannon of the stress test option. (Tr. 53, 16263.)
Ricardo James also took the Civil Service Examination on
October 29, 1983. James was ranked twenty-ninth on the Civil
Service Resident List. (Defs.Exs.K, L.) James was not certified
by the Commission for consideration to be appointed to the
position of police officer because he was overweight.
(Defs.Ex.L.) Neither Hodgins nor Roque informed James of the
stress test option. (Tr. 56, 162-63.)
During the course of the trial, plaintiff admitted into
evidence the records of a number of individuals who passed the
medical and physical requirements of the job. Each of these
individuals met the height and weight requirements established
by New York State.
Sixteen of the female applicants who took Civil Service
Examination No. 66-487 passed the written and agility tests. Two
of these sixteen women, Karyn Addison and Theresa Lisella, were
appointed as City police officers. (Defs.Ex.L.)
Subsequent to May 21, 1986, when plaintiffs eligibility list
expired, plaintiff did not apply for a police officer position
in any other community. Plaintiff testified as follows:
Q. Since [May 21, 1986], have you taken any other
Civil Service Tests for the police officer's
Q. And since that time, have you applied for a
police officer position, either in Mount Vernon or
any other police jurisdiction in Westchester
Since 1986, plaintiff has been employed as a legal secretary.
(Defs.Ex. X; Tr. 1920.) Plaintiff did not seek work as a police
officer in another jurisdiction because she wanted to work in
the town in which she lived and where her children went to
school. Plaintiff testified: "I felt like I could be an asset to
my town." (Tr. 2324.)
In August 1986, plaintiff filed a charge of discrimination
with the New York State Division of Human Rights. On February
26, 1999, plaintiff commenced this action by filing a complaint
in the United States District Court for the Southern District of
CONCLUSIONS OF LAW
I. Shifting Burdens of Proof
The disposition of an employment discrimination action follows
the three-step procedure set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1822, 1824-26,
36 L.Ed.2d 668 (1973).*fn5 First, the aggrieved employee
bears the burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
at 1824. This burden is a light one. See Chertkova v.
Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
If the plaintiff successfully establishes a prima facie case,
there is a rebuttable presumption of discrimination and the
burden of going forward then shifts to the employer to
articulate some legitimate, non-discriminatory reason for the
action. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824;
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). If the
employer does so, the presumption of discrimination "simply
drops out of the picture," St. Mary's Honor Ctr. v. Hicks.,
509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993),
and the plaintiff must show that it is more likely than not that
the employer's actions were motivated, at least in part, by
discrimination. See Stratton v. Department for the Aging for
the City of New York, 132 F.3d 869, 879 (2d Cir. 1997). "[A]
plaintiffs prima facie case,
combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated." Reeves v.
Sanderson Plumbing Prods., Inc., ___ U.S. ___, ___,
120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).
II. Plaintiff's Title VII Claim
Plaintiffs claims are grounded in Title VII. Under § 703(a) of
It shall be an unlawful employment practice for an
employer — (1) to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin.
42 U.S.C. § 2000e-2(a).
To make out a prima facie case for disparate treatment under
Title VII, the "plaintiff must prove by a preponderance of the
evidence that she applied for an available position for which
she was qualified, but was rejected under circumstances which
give rise to an inference of unlawful discrimination."
Burdine, 450 U.S. at 253, 101 S.Ct. at 1092. The burden of
establishing a prima facie case is de minimis. Chambers v. TRM
Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The prima
facie elements are "not intended to become rigid or mechanical,
but rather `to promote the general principle that a Title VII
plaintiff must carry the initial burden of offering evidence
adequate to raise an inference of discrimination.'" Eng v.
Banco Di Sicilia, 1998 WL 159062, No. 95 Civ. 3868(DAB), at *2
(S.D.N.Y) (quoting Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.
1985)); see also Brown v. Coach Stores, Inc., 163 F.3d 706,
709-10 (2d Cir. 1998) (noting that the nature of the prima facie
proof required in a Title VII case may vary according to the
facts of that particular case).
Plaintiff alleges that she received disparate treatment as
compared to that accorded similarly-situated males and was
targeted for such adverse treatment because of her gender in
that: (1) she is a woman who passed the police officer's written
and agility tests and ranked thirty-five on the resident
eligibility list in May 1984, (Complt. ¶¶ 1, 2); (2) she was
informed after her September 5, 1985 medical examination that
she was fifteen pounds overweight, and subsequently lost some of
the weight, (Complt. §§ 2); (3) similarly-situated men were
appointed although they were more overweight than plaintiff,
(Complt. ¶ 8); and (4) she was not given a stress test to
determine if she met eligibility standards despite her weight,
as was done for other applicants, (Complt. ¶ 9).
Defendants argue that plaintiff has not made out a prima facie
case because she failed to meet the height/weight requirement
and thus was not "qualified" for the position of police officer.
Plaintiff counters that but for defendants' discriminatory acts,
she would have met the height/weight requirement.
In support of their position, defendants cite Kofer v.
Village of Pelham, 710 F. Supp. 483 (S.D.N.Y. 1989). In Kofer,
the court determined that a thirty-one-year-old woman who scored
the highest of all applicants on a 1983 written Civil Service
Examination and who met the residency, education and physical
agility qualifications, but who nonetheless was passed over for
a position as police officer, did not make out a prima facie
case of sex discrimination. The state civil service law, which
the Second Circuit had ruled was constitutional before the
plaintiff brought her claim, provided that police officer
candidates had to be between the ages of twenty and twenty-nine.
Id. at 484. Accordingly, the court found that the plaintiff
was not qualified for the position based upon her age, and thus
was unable to make out an essential element of her claim. Id.
The case at bar is distinguishable from Kofer in that
plaintiff here alleges there were exceptions made to the
height/weight requirements set by the Municipal Training Council
such that men who were more overweight than plaintiff became
for hiring either because their examining physician ascribed
their excess weight to "lean body mass" or they were given a
stress test — opportunities plaintiff claims the Commission
The posture of this case is somewhat unusual. Whether or not
plaintiff has set forth a prima facie case of discrimination
turns on whether defendants' reasons for failing to qualify her
as a candidate were pretextual. The McDonnell Douglas burden
shifting analysis "is not a rigid ritual, but simply an orderly
way to evaluate proof when discrimination is claimed." Dister
v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir. 1988).
Accordingly, we will presume, for purposes of analysis, that
plaintiff met her initial burden and proceed to the core issue
of whether plaintiff has shown it more likely than not that her
gender "actually played a role in the employer's decisionmaking
process and had a determinative influence on the outcome."
Reeves, ___ U.S. at ___, 120 S.Ct. at 2105 (internal citations
and quotations omitted). See Shafrir v. Association of Reform
Zionists of Am., 998 F. Supp. 355, 360 (S.D.N.Y. 1998) (Chin,
J.) (assuming the existence of a prima facie case and moving to
the "ultimate issue" of "whether the plaintiff has proven that
it is more likely than not that the employer's decision was
motivated at least in part by an `impermissible,' or
As stated above, the Commission's physician found that
plaintiff had a medium frame, that she weighed 170 pounds, and
that she was five feet, five and one-half inches tall. Plaintiff
conceded at trial that at no time prior to the expiration of the
eligibility list did her weight fall within the guidelines, or
within the twelve-percent cushion allowed by the Municipal
Training Council. However, plaintiff introduced evidence at
trial that several men who were overweight were nonetheless
certified as eligible for appointment based on the results of a
stress test or a designation by their examining physician that
their excess weight was due to "lean body mass." At least one of
those men was diagnosed with obesity. Certainly, plaintiffs
suspicions reasonably were aroused as to the Commission's
motives for failing to certify her for appointment when
overweight men, one of whom exceeded the weight requirements by
almost ninety pounds, were certified and appointed.
However, a reasonable suspicion is insufficient to impose
liability on defendants and plaintiffs case amounts to no more
than that. Plaintiff offered no evidence that any individual was
informed by defendants of his or her right to take a stress or
fitness test. In fact, two longstanding Commission staffers
testified that they never informed an applicant of the stress
test option. Furthermore, plaintiff testified at trial that she
was "pretty sure" she read the medical examination form before
signing it, which stated that "[i]f weight is over or under the
acceptable weight shown in the tables by an excess of 12%,
attach results of additional stress and fitness tests pursuant
to page 5 of the standards." Plaintiff said that she did not ask
defendants about the stress test mentioned in the document.
There was no evidence defendants concealed from plaintiff the
option of a stress or fitness test; indeed, a female applicant
did so the year before plaintiff applied to take the Civil
The only applicant who took a stress test and testified at
trial, Joseph Radzinski, said that he knew of the stress test
option because he had been a New York City police officer and
took a stress test to overcome the weight requirement when he
was hired by that department. Radzinski said that no one from
the Mount Vernon Police Department told him of the stress test
In sum, plaintiff has failed to prove by a preponderance of
the evidence that her gender played any role in defendants'
failure to hire her. We sympathize with plaintiff, who lost a
possibility opportunity to become a Mount Vernon police officer
because of her lack of knowledge of the stress test alternative,
and we might wish that the Commission officials made sure
that all overweight applicants were aware of it. However, "even
if the employer acted unwisely or erroneously," there is no
proof of gender discrimination in this case. See Toliver v.
Sullivan Diagnostic Treatment Ctr., 818 F. Supp. 71, (S.D.N.Y.
1993), aff'd, 22 F.3d 1092 (2d Cir. 1994) (TABLE), and cert.
denied, 513 U.S. 1151, 115 S.Ct. 1103, 130 L.Ed.2d 1070 (1995).
For the forgoing reasons, we find in favor of defendants on
all counts. The Clerk of the Court shall enter judgment for
defendants. Each party shall bear it own costs.