equal protection claim cannot proceed insofar as she alleges speech-motivated selective enforcement.
2. Gender-Based Equal Protection Claim
The Supreme Court has declared that "individuals have a constitutional right under the equal protection clause to be free from sex discrimination in public employment." Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994) (citing Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). A plaintiff bringing suit for disparate treatment under the Equal Protection Clause must demonstrate purposeful discrimination. See Knight v. Nassau County Civil Service Commission, 649 F.2d 157, 161-62 (2d Cir. 1981). In other words, proof of "discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Arlington Heights v. Metropolitan Housing Development, Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), quoted in Silver v. City University of New York, 947 F.2d 1021, 1022-23 (2d Cir. 1991); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 269, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring) ("[W]here a public employee brings a `disparate treatment' claim under 42 U.S.C. § 1983 and the Equal Protection Clause the employee is entitled to the favorable evidentiary framework of Arlington Heights.").
Thus, in order to survive a motion for summary judgment on an equal protection claim, a plaintiff must come forward with some credible evidence that the defendant's actions were motivated by gender-based animus or ill-will. See Grillo v. New York City Transit Authority, 291 F.3d 231, 234 (2d Cir. 2002). "`Discriminatory purpose' . . . implies . . . that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Such discriminatory motive can "be inferred from the mere fact of differences in treatment." Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (citing Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555); see also Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998) ("An employee is denied her equal protection right to be free from gender discrimination when she is treated differently from other similarly situated employees, thus suffering `disparate treatment because of gender.'").
Here, plaintiff offers evidence that Blue excluded female Division employees (in particular Tolbert and Kantha) from decision making processes and delegated their responsibilities to male employees. There is also evidence that Blue worked well with those male employees, but not with Tolbert or Kantha. In addition, Kantha testified that Blue yelled at female employees, but that she never saw him yell at male employees. This evidence tends to establish that Blue treated her (and other female employees) differently from similarly situated male employees. As a result, a genuine issue of material fact exists for trial. See Harlen Associates v. Incorporated Village of Mineola, 273 F.3d 494, 499 n. 2 (2d Cir. 2001) (explaining that whether two individuals are similarly situated is typically an issue for a jury to determine).
3. Blue is Not Entitled to Qualified Immunity
"The Supreme Court declared [twenty four] years ago that individuals have a constitutional right under the equal protection clause to be free from sex discrimination in public employment." Annis, 36 F.3d at 254 (citing Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). And under the facts interpreted most favorably to plaintiff, it was not reasonable for Blue to adversely treat Kantha because she was a woman.
C. Plaintiff's State Law Claim
Plaintiff also brings suit pursuant to Section 296(6) of the New York Human Rights Law, which makes it unlawful for "any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so." N.Y. Exec. Law § 296(6). Under Second Circuit precedent, an individual defendant "who actually participates in the conduct giving rise to a discrimination claim" may be personally liable under 296(6). Tomka v. Seiler Corp., 66 F.3d 1295, 1319 (2d Cir. 1995); see also Perks v. Town of Huntington, 96 F. Supp.2d 222, 228 (E.D.N.Y. 2000) (noting that courts have expressed reservations about Tomka but that it remains the law in the Second Circuit). However, "[i]t is the employer's participation in the discriminatory practice that serves as the predicate for the imposition of liability on others for aiding and abetting." Murphy v. ERA United Realty, 251 A.D.2d 469, 674 N.Y.S.2d 415, 417 (2d Dep't 1998); see also DeWitt v. Lieberman, 48 F. Supp.2d 280, 294 (S.D.N.Y. 1999); Lewis v. Triborough Bridge & Tunnel Authority, 77 F. Supp.2d 376, 382 n. 8 (S.D.N.Y. 1999); Duviella v. Counseling Service of Eastern Dist. of New York, 2001 WL 1776158, at *18 (E.D.N.Y. Nov. 20, 2001).
Here, the state's sovereign immunity prevents Kantha from bringing suit against the Division as her employer. But cases where courts have ruled that a plaintiff's aiding and abetting claim against an employee may not proceed because they cannot proceed against an employer have dismissed the claims against the employer on the merits. See, e.g., DeWitt, 48 F. Supp.2d at 294 (dismissing plaintiff's aiding and abetting claim against a co-worker because plaintiff had not offered any proof that his employer had violated the Human Rights Law). As a result, I find those cases inapposite and decline to grant summary judgment on plaintiff's state law claim against Blue. See Martin v. New York State Dep't of Correctional Services, 224 F. Supp.2d 434, 442 (N.D.N.Y. 2002) (denying summary judgment on aiding and abetting claim against individuals even though claims against state employer could not proceed because of sovereign immunity).
For the reasons discussed above, defendant Blue's motion for summary judgment is denied. Defendant Tolbert's motion is granted and plaintiff's suit is dismissed as to her.
This is the decision and order of the Court.