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November 8, 2000


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



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 carried out.

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 Alley's section.

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 ...

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