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May 2, 2003


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


Plaintiff Maria Munoz Kantha brings this action against defendants Jerome Blue, Evonne Jennings Tolbert, and three unidentified New York state officials pursuant to 42 U.S.C. § 1983 ("Section 1983"), claiming that Blue discriminated against her because she was female (in violation of the Fourteenth Amendment) and that both defendants retaliated against her because she engaged in constitutionally protected speech (in violation of the First Amendment). Plaintiff also asserts a claim against Blue under New York Executive Law § 296(6). Defendants Blue and Tolbert now move for summary judgment on all claims against them.*fn1

For the following reasons, defendant Tolbert's motion is granted and defendant Blue's motion is denied.

I. Facts

Rule 56.1 of the Local Rules of Civil Procedure requires a party opposing summary judgment to submit a "separate, short and concise statement of the material facts as to which it is contended there exists a genuine issue to be tried." Each statement of material fact "must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." Many of the statements of material fact set forth in plaintiff's 56.1 Statement either do not find support in the evidence cited or are supported by evidence that would be inadmissible at trial. The following facts are supported by admissible evidence and interpreted most favorably to plaintiff, the non-moving party.

On July 26, 1999, Governor George E. Pataki's Office appointed plaintiff Kantha as Deputy Regional Commissioner of the New York State Division of Human Rights. [Plaintiff's 56.1 Statement ¶ 5]. At that time, defendant Blue was the Commissioner of the Division. Id. at ¶ 3. Tolbert was appointed as Executive Deputy Commissioner on August 2, 1999. Id. at ¶ 7. As the Division was organized at the time of Tolbert's appointment, Blue headed the Division, Tolbert worked directly under Blue, and Kantha worked directly under Tolbert. [Id. at ¶ 6; Nicaj Affirmation, Ex. 7].

A. Blue's Actions Toward Female Employees

Kantha alleges that several of Blue's actions toward her and other female employees at the Division evidence Blue's animus toward women.

1. Failure to Introduce Female Executives

Plaintiff testified at her deposition that she, Tolbert, and Gina Lopez (General Counsel at the Division) attended an Equal Emplonyment Opportunity Commission conference at which Blue failed to introduce them to the audience. Kantha also testified about an occurrence where Blue failed to acknowledge her when he introduced her subordinate staff (which included men and women) at a conference in Albany. Kantha contends that Blue's failure to introduce her humiliated her in front of a large audience. [Plaintiff's 56.1 Statement ¶ 11; Nicaj Affirmation, Ex. 4, at 165-66].

2. Verbal Abuse

Kantha testified that Blue yelled at female Division employees, including Tolbert and her, but she never saw him yell at any men. [Plaintiff's 56.1 Statement ¶ 12; Nicaj Affirmation, Ex. 4, at 166-68]. She also testified that Blue called at least one female employee "incompetent" and "useless." [Plaintiff's 56.1 Statement ¶ 7; Nicaj Affirmation, Ex. 4, at 142].

3. Preventing Female Employees From Performing Their Jobs

Plaintiff alleges that Blue prevented female executives from performing their job functions. She testified that Vallorie Lovelace, the Administrator of Human Resources, lost weight when Blue "completely disregarded" her and met with employees under her supervision. [Plaintiff's 56.1 Statement ¶ 13; Nicaj Affirmation, Ex. 4, at 113-14, 204, 232]. Kantha also testified that Blue excluded Denise Washington, an administrative law judge, from the decision-making process and then terminated her employment. [Plaintiff's 56.1 Statement ¶ 16; Nicaj Affirmation, Ex. 4, at 184-86]. The bulk of the evidence that plaintiff proffers to oppose defendants' motion for summary judgment, however, concerns Blue's treatment of three women: defendant Tolbert, Margaret Gormley-King, and plaintiff herself.

a. Tolbert

Kantha argues that two incidents evidence Blue's attempt to subvert Tolbert's authority at the agency. First, Blue objected to Tolbert's request that she receive a copy of reports sent to Blue from Bureau Heads and Regional Directors. [Plaintiff's 56.1 Statement ¶ 7; Nicaj Affirmation, Ex. 7]. Second, he attempted to alter the organizational structure of the Division in such a way that Tolbert would no longer directly supervise Kantha. [Plaintiff's 56.1 Statement ¶¶ 7-8; Nicaj Affirmation, Ex. 9]. After a meeting on the subject — attended by Tolbert, Blue, and Chicatelli (among others) — Blue abandoned his reorganizational effort. [Plaintiff's 56.1 Statement ¶ 9; Nicaj Affirmation, Ex. 6, at 119-20].

In addition, two Division employees (Margaret Gormley-King and Booker Ingram) testified that Blue kept Tolbert "out of the loop" and "excluded her from dayto-day business activities." [Plaintiff's 56.1 Statement ¶ 10; Nicaj Affirmation, Ex. 10, at 22-24; Nicaj Affirmation, Ex. 12, at 40].

b. Gormley-King

Blue directed male Division employees from the Buffalo office to meet with the local commission in Rockland County, even though it was within Margaret Gormley-King's jurisdiction and a part of her job responsibility. [Plaintiff's 56.1 Statement ¶ 21; Nicaj Affirmation, Ex. 12, at 13-16]. Gormley-King wrote a memorandum to Blue in which she complained about the incident. [Nicaj Affirmation, Ex. 25]. Blue responded with a memorandum in which he criticized her job performance. [Nicaj Affirmation, Ex. 26]. Gormley-King concluded from this incident that Blue had difficulty dealing with women. [Nicaj Affirmation, Ex. 12, at 13].

c. Kantha

Kantha testified that Blue excluded her from all management meetings, [Plaintiff's 56.1 Statement ¶ 17; Nicaj Affirmation, Ex. 4, at 195]; ordered her to perform tasks that needed to be performed by lower-ranked employees working under Tolbert's supervision, [Plaintiff's 56.1 Statement ¶ 18; Nicaj Affirmation, Ex. 4, at 209-10]; prevented staff from giving her information that she needed to perform her job, [Plaintiff's 56.1 Statement ¶ 18; Nicaj Affirmation, Ex. 4, at 202-03]; and eliminated some of Kantha's duties and responsibilities by preventing her from leaving the office and going out to the "field." [Plaintiff's 56.1 Statement ¶ 18; Nicaj Affirmation, Ex. 4, at 203-04].

Plaintiff also related an incident involving Wilson Ortiz, a staff member who was subordinate to Kantha in the Division's chain of command. Plaintiff testified that Blue transferred Ortiz from the Brooklyn office to the White Plains office without first consulting with her. [Plaintiff's 56.1 Statement ¶ 17; Nicaj Affirmation, Ex. 4, at 34-35]. She also claimed that Blue told Ortiz that he no longer reported to Kantha, but should report directly to Blue instead. [Plaintiff's 56.1 Statement ¶ 21; Nicaj Affirmation, Ex. 4, at 200-01]. Kantha further alleges that Blue told a lot of regional directors (who worked under Kantha in the chain of command) that they should also report directly to him. Id.

d. Assigning Work to Males

B. Plaintiff's Complaints

Kantha expressed her concerns about Blue's conduct, both orally and in writing, to Nita Chicatelli, James Natoli (a Senior Program Associate), William Howard (Deputy Director of Governor Pataki's State Operations), Tom Doherty (head of Governor Pataki's Appointment Office), as well as to Blue himself. [Plaintiff's 56.1 Statement ¶ 19; Nicaj Affirmation, Ex. 14-23, 28]. She testified, for example, that she told Doherty that Blue conflicted with Tolbert because Tolbert was a "strong woman." [Nicaj Affirmation, Ex. 4, at 407]. She also sent out several memoranda to various people.

1. The December 23, 1999 Memorandum and its Aftermath

In a December 23, 1999 memorandum to Blue, which she carbon copied to Nita Chicatelli, Kantha complained of Blue's "outward hostile management approach" and "abuse of power towards your administrative staff and other senior staff members." [Nicaj Affirmation, Ex. 14]. "Your disregard for my position as Deputy Commissioner, and exclusion of any decision making process with regard to my regional affairs department," she wrote, "undermines my authority as an administrator at the Division of Human Rights." Id.

Blue replied to Kantha in a memorandum criticizing her job performance. [Nicaj Affirmation, Ex. 24]. According to Blue, Kantha had ignored his "repeated requests" for certain "material and information," missed "more Executive Staff Meetings than any other member of the staff," failed to inform him when she was not going to be in the office, and used insensitive language. Id. Blue's criticisms prompted Kantha to respond in a memorandum to Blue, Nita Chicatelli, James Natoli, and William Howard. [Nicaj Affirmation, Ex. 15].

2. February 29, 2000 Memorandum

In her February 29, 2000 memorandum, addressed to Blue and carbon copied to Chicatelli, plaintiff complained that Blue had not "engaged in any professional discussions with my department" for several months. [Nicaj Affirmation, Ex. 16]. She also expressed her opinion that Blue's "micro management has set the division back," and that he had "oppressed my ongoing professional development" and created a "hostile work environment." Id.

3. May 15, 2000 Memorandum

Kantha sent another memorandum to Blue on May 15, 2000, and again carbon copied it to Chicatelli, Natoli, and Howard. In the memorandum, she criticized several of Blue's management decisions — she complained, for example, that Blue had scheduled individual meetings with staff working under her management — and voiced concern about his conduct toward her. [Nicaj Affirmation, Ex. 19]. Specifically, she claimed that at a May 11, 2000 meeting Blue screamed at her "in a high pitched voice and in an unprofessional and disrespectful manner." Id. The memo concluded by warning: "I will no longer tolerate your abuse and sexist remarks and I will not attend any meetings where I am the ...

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