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Wall v. Town of Niskayuna

January 29, 2009


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action asserting claims of employment discrimination under Title VII, 42 U.S.C § 2000e, et seq . ("Title VII"), and the New York State Human Rights Law, N. Y. Exec. L. § 292 et seq . ("NYSDHR"). The claims sound in theories of disparate treatment (failure to promote), hostile work environment, and retaliation. See 2nd Amed. Compl. [dkt. # 25]. Defendant moves pursuant to Fed. R. Civ. P. 56 seeking summary judgment dismissing Plaintiff's action in its entirety. Plaintiff has opposed the motion. For the reasons that follow, Defendant's motion is granted in part and denied in part.


The parties have evinced their understanding of the well-settled standards for deciding summary judgment motions in Title VII and other discrimination actions,*fn1 including application of the three-part burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See Fed. R. Civ. P. 56(c); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Bracci v. N.Y.S. Dept. of Correctional Services, 2005 WL 2437029, at * 1 (N.D.N.Y. Sept. 30, 2005) (McAvoy, S.J.); Levitant v. City of New York Human Resources Admin., 2008 WL 5273992, at *6 - *7 (E.D.N.Y. Dec.18, 2008). Therefore, these standards will not be repeated.

Suffice it to say that where, as here, the intent of one party is in question but there is no direct evidence of discrimination, the Court must carefully examine the reasonable inferences that could be drawn from the totality of the circumstantial evidence and be cautious about granting summary judgment. Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006). Nonetheless, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); see Schiano, 445 F.3d at 603 ("[S]ummary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.")(quoting McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.1997)).


Unless indicated otherwise, the following facts are taken from the parties' L.R. 7.1(a)(3) Statements of Material Facts.*fn3 The Court views all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).

a. Gender-Based Non-Promotion Claims

Plaintiff has been a member of the Town of Niskayuna Police Department ("Department") since September 23, 1985 and has held the rank of sergeant since January 1993. At all relevant times, she was one of two female officers in the Department of approximately 30 officers.

In December of 1999, two lieutenant positions opened in the Department. 2nd Amed. Compl. ¶ 15. Plaintiff, along with several other Department sergeants, applied for the positions. Then-Chief of Police Mark Sollohub recommended to the Town Board that Lewis Moskowitz and Thomas Constantine be provisionally appointed to these positions.

Id. ¶ 16; see Constantine Aff. ¶ 2. A provisional appointment meant that the appointees would have to take and pass a civil service examination in the future to permanently retain their positions. Constantine Aff. ¶ 2. The Town Board followed the Chief's recommendation. Plaintiff was passed over for this promotion despite having seniority over both Moskowitz and Constantine, leading Plaintiff to conclude that the Chief's recommendation was gender motivated. 2 nd Amed. Compl. ¶ 18.

In 2002, a lieutenant's civil service examination was offered by the Schenectady County Civil Service Commission. Constantine and Moskowitz, who held the lieutenant's positions provisionally, took the examination. Plaintiff and Department Sergeants John Lubrant and Stanley Firminski also took the examination. Of the five, four passed the examination and, based on their examination scores, were ranked as follows: 1. Lubrant; 2. Firminski; 3. Plaintiff; 4. Moskowitz. 2 nd Amed. Compl. ¶ 20. The Chief recommended that Moskowitz and Lubrant be appointed to the positions. Id.; Constantine Aff. ¶ 3. The Town Board followed the recommendation. Citing the fact that she scored higher than Moskowitz on the examination, Plaintiff contends that she was passed over for this promotion because of her gender.

Another lieutenant's civil service examination was given on October 24, 2004. 2nd Amed. Compl. ¶ 22. Plaintiff and Constantine were the only two Department sergeants to take the examination. In January 2005, Chief Sollohub retired and Moskowitz became the Chief of Police, see Plt. L. R. 7.1 Stat., ¶ 9, opening a lieutenant's position in the Department. On June 3, 2005, the Schenectady County Civil Service Commission published the results of the October 24, 2004 lieutenant's civil service examination. Plaintiff was ranked number one and Constantine was ranked number two. See Def. Ex. L. Moskowitz did not feel that either Plaintiff or Constantine had the leadership qualities necessary to properly fulfill the lieutenant's position, and he expressed a desire to appoint someone, like Firminski, who the Chief felt had strong leadership qualities. Lubrant Dep. pp.84-87; see Plt. L. R. 7.1 Stat., ¶ 2(b).*fn4 As explained by Moskowitz:

The lieutenant's job was a leadership role. I didn't want someone who had to show up at the scene of a major incident and couldn't assume the leadership role that was needed. [I wanted] [s]omeone who could go to a scene and take command of a situation. And direct the resources that needed to be there, to get them there, to direct them. . . They had to know how to take control of the situation and direct the resources toward it.

Id. pp 129, 130.

Moskowitz decided that, pursuant to New York Civil Service Law § 61, he would open up the position for a provisional appointment instead of using the civil service list.*fn5

He invited all four Department sergeants - Plaintiff, Constantine, Ed Kelly, and Fiminski -to submit resumes and attend interviews. See Second Amend. Compl. ¶ 24. All four applied for the position and were interviewed. After the interviews, Moskowitz was of the opinion that Fiminski had the right leadership ability for the position and was the best person to help move the Department in the direction Moskowitz wanted it to go. See Moskowitz Dep., pp. 117, 129, 130. Moskowitz recommended to the Town Board that Fiminski be provisionally promoted to lieutenant. The Town Board followed Moskowitz's recommendation and promoted Fiminski on September 27, 2005.

Plaintiff contends that Moskowitz's decision to recommend Firminski for promotion, instead of her, was a gender-based determination. In reaching this conclusion, Plaintiff asserts that she and Firminski were the only two viable candidates for the position. She excludes Constantine as a viable candidate because he was, at least in Plaintiff and Constantine's opinions, "a threat" to taking over the Chief's position. See Plt. L. R. 7.1 Stat., § 2(e);*fn6 Constantine Aff. ¶ 6 ("I felt the reason Chief Moskowitz would not appoint me . . . was that I was a threat to Moskowitz's [ sic ] remaining as Chief."). Plaintiff asserts that "Sgt. Ed Kelly was not a viable candidate because, by his own statement, [he] was considering retiring at that time." Plt. L. R. 7.1 Stat., § 2(d).

As to Firminski, Plaintiff is of the opinion that he was a not a better candidate than she because he had a "horrendous disciplinary record" that the Chief either was aware of and did not tell the Town Board about, or should have been aware of yet failed to investigate during the interview process.*fn7 Nonetheless, Plaintiff acknowledges she has a less assertive, "more laid back" managerial style than Firminski, see Wall Dep. p. 44-46,*fn8 and notes that

[o]ne of the reasons Chief Moskowitz failed to recommend [her] for Lieutenant was that he had lost some respect for her and felt the men had lost some respect for her because one night, off duty, she had pulled up her shirt at a bar, and showed her breasts.

Plt. L. R. 7.1 Stat., ¶ 4(f)(citing Moskowitz dep. pp. 198-204). Plaintiff concludes, however, that she was passed over for the 2005 promotion because the Chief engaged in sexual stereotyping. See Plt. Mem. L. p. 10 ("[T]he Chief was using sexual stereotyping in his determination of what it takes to be a successful police lieutenant. "); see id. pp. 11-12 ("All these factors would allow a reasonable juror to infer that Moskowitz's motive in not appointing from the Civil Service List . . . constitute a pretext for what Moskowitz's true intent was; namely to avoid appointing a woman to the second highest command position in the department because he didn't believe a woman or a woman's style of law enforcement could earn the respect of the men in the department.").

b. Hostile Work Environment - Sexual Harassment

Plaintiff also asserts that she was subjected to a gender-based hostile work environment. In support of this theory, Plaintiff points to the three above-mentioned occasions when she was passed over for promotion, and contends that she, and the other woman officer in the Department, were treated poorly ...

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