The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION and ORDER
Plaintiff Madeline Finn-Verburg ("Finn-Verburg") brings this
action alleging that the defendant New York State Department of
Labor ("DOL") discriminated against her in her employment based
upon her gender. Her claims are brought pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
42 U.S.C. § 1983, the New York Civil Service Law, the New York Human
Rights Law, and state common law.
Defendant moves for summary judgment pursuant to Federal Rules
of Civil Procedure 56. Plaintiff opposes defendant's motion. Oral
argument was heard on August 25, 2000, in Albany, New York.
Decision was reserved.
The following facts are taken in the light most favorable to
Finn-Verburg, as must be done on a motion for summary judgment.
Finn-Verburg has been employed by DOL for eighteen years. Her
supervisor during the time period relevant here was Roger Alley
("Alley"). Finn-Verburg contends that sexual harassment by Alley
began in 1991.
In 1992 Finn-Verburg requested and received a reduction in her
work hours to three days per week. Although her stated reason for
the leave was personal and family reasons, she requested the
leave to limit contact with Alley. In November 1994, Finn-Verburg
attended a sexual harassment training class given by DOL, which
included directions for filing complaints of discrimination.
Karen Martin ("Martin"), an Affirmative Action Administrator II
in DEOD, investigated Finn-Verburg's allegations of sexual
harassment. Martin determined that Alley exhibited poor
supervisory skills, but that he had not created a hostile work
environment. Martin recommended that a counseling memorandum be
placed in Alley's personnel records, additional
managerial/supervisory training be provided, and quarterly
interviews of Alley's staff be conducted to assure that Alley did
not retaliate against his employees for their statements against
him made during the course of the investigation. There is no
evidence indicating that any of these recommendations were
At least four other women have complained about sexual
harassment on the part of Alley. These women also made claims
that Alley retaliated against them for making such complaints.
Beth Schmidt ("Schmidt") made a complaint about the same type
of behavior about which Finn-Verburg complains. Additionally,
Schmidt alleged that Alley made inappropriate comments to her,
and showed her photographs of transvestites that she did not want
to see. When Schmidt complained about Alley to his supervisor,
Christopher Forkeutis, he laughed. An investigation by DEOD
yielded similar recommendations as did the Finn-Verburg
investigation: Alley needed to attend sexual harassment training
and sensitivity training. Schmidt asserts that Alley retaliated
against her for making the DEOD complaint, by giving her a
performance complaint. Schmidt ultimately transferred out of
Debra Atwell ("Atwell"), a DOL employee since 1969, also
complained of Alley's conduct. Atwell further alleged that Alley
retaliated against her because of the part that she played in the
DEOD investigation of Schmidt's complaint. Atwell transferred to
the Poughkeepsie office in order to get away from Alley.
Virginia Ford was employed by DOL since 1983. In 1994 Alley
became Ford's direct supervisor. Ford alleged that Alley created
a hostile work environment. She avers that Alley stated that
women should stay at home and not work. Ford did not file a
formal complaint, but did complain to her indirect supervisor,
Christopher Forkeutis, about Alley. In 1995 Ford requested a
transfer away from Alley. She was transferred in 1996.
Lucinda Kentris ("Kentris") was Alley's secretary from December
1996 to October 1997. On June 18, 1997, she filed a complaint
with the DEOD regarding the alleged hostile environment created
by Alley. Kentris alleged conduct by Alley substantially the same
as that alleged by Finn-Verburg. On July 10, 1997, Alley wrote a
performance report dismissing Kentris. However, the personnel
office rejected Alley's report and Kentris was permitted to
retain her employment with a second probationary period. Martin
investigated Kentris's complaint and determined that ...