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August 14, 2001


The opinion of the court was delivered by: David N. Hurd, United States District Judge

On June 10, 1998, plaintiff Madeline Finn-Verburg ("Finn-Verburg" or "plaintiff") commenced the instant action against defendant New York State Department of Labor ("NYSDOL" or "defendant") pursuant to Title VII of the Civil Rights Act of 1964, as amended, U.S.C. § 42 § 2000e. Defendant answered the complaint on July 16, 1998. Following completion of discovery, defendant moved for summary judgment on all claims against it. This motion was granted in part and denied in part on November 8, 2000. Finn-Verburg v. New York State Department of Labor, 122 F. Supp.2d 329 (N.D.N Y 2000).
Trial of plaintiff's claims commenced on April 3, 2001, in Albany, New York. At the conclusion of a five day trial, the jury returned a special verdict in favor of the defendant. Judgment was entered accordingly.
Plaintiff now moves to set aside the jury verdict and seeks an order entering judgment as a matter of law in her favor, pursuant to Federal Rule of Civil Procedure 50, or in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59. Defendant opposes. Oral argument was heard on May 25, 2001, in Albany, New York. Decision was reserved.
Finn-Verburg was, and is, an employee of NYSDOL. She claims that she was harassed by Alley, and treated with hostility because of her gender. Because of this harassment, she claimed to have had no choice but to reduce her work schedule to limit contact with Alley. At the trial of this matter, in addition to her own testimony, she proffered the following in support of her claim.

First, plaintiff called Karen Martin ("Martin"), an equal opportunity investigator for NYSDOL.*fn1 In June through August of 1997, Martin investigated plaintiff's internal harassment complaint. Martin testified that she was told by employees that Alley did have supervisory problems with women, but that she found plaintiff's claim of gender-based harassment to be unsubstantiated. While testifying as a witness for the defense, Martin admitted on cross-examination that in 19 years as a NYSDOL employee, she had never heard of an allegation of harassment being substantiated by an internal investigation.

Plaintiff also called her immediate supervisor, John Dillon ("Dillon"). Dillon testified that he was aware of Alley's conduct toward plaintiff and Deborah Atwell ("Atwell"), another auditor under Alley's supervision. However, Dillon also admitted that he often told plaintiff that much of what she perceived to be harassment was within the "legitimate prerogatives" of a manager. (Def. Mem. at 4.)
Plaintiff called three female clerical employees — Virginia Ford, Beth Schmidt ("Schmidt"), and Lucinda Kentris ("Kentris") — who all testified to harassing conduct on the part of Alley. This harassing conduct consisted of glaring, yelling, sarcasm, "stalking" in the office, and at least one comment that was arguably sexual in nature. *fn2
Plaintiff also proffered the testimony of James Stewart ("Stewart"), a co-worker of plaintiff's. Stewart acknowledged witnessing some of the conduct alleged by plaintiff. He also testified that he witnessed Alley yell at female employees, as well as one male employee; however, Stewart testified that the male employee, Keith Austin ("Austin"), was not treated with the same intensity as female employees. Alley subsequently denied this characterization, but also testified that Austin actually thanked him for being "hard" on him.
In addition, plaintiff introduced testimony that three women, including plaintiff, resorted to extreme measures to get away from Alley because of his treatment toward them. Atwell requested a transfer 75 miles away from her home to a NYSDOL office in Poughkeepsie, New York. Kentris resigned. As noted above, plaintiff requested a reduced work schedule. *fn3 Plaintiff also demonstrated that no male subordinate of Alley had ever resorted to similar steps to avoid him, and that Alley supervised a relatively equal number of male and female employees.
In defense, NYSDOL introduced evidence through the testimony of Alley, Martin, Wallace Brennan ("Brennan"), Julie Hickey ("Hickey"), and Marie Wilson ("Wilson"). All testified that they had not observed Alley display any gender-based animus toward women. Wilson also testified that she was under Alley's supervision when he was a field supervisor, and that he had never conducted himself in an inappropriate manner on any site visits. All these witnesses ...

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