The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
In a complaint filed on May 24, 2007, and amended on August 16, 2007 ("Compl."), Plaintiff Pamela Blanco ("Blanco" or "Plaintiff"), a police officer in the Village of Scarsdale Police Department, brought this action against the Chief of Police John Brogan ("Brogan") and the Village of Scarsdale ("Scarsdale"), alleging that in violation of Title VII, 42 U.S.C. § 1983 and N.Y. Human Rights Law § 296, Defendants discriminated against her on the basis of her gender and unlawfully retaliated against her after she filed a complaint with the EEOC.
In a decision filed on November 21, 2007, Judge Brieant of this Court granted Defendant Brogan's motion to dismiss the amended complaint in all respects, and granted Defendant Scarsdale's motion to dismiss the amended complaint with respect to Plaintiff complaints of gender discrimination.*fn1 See Blanco v. Brogan, 2007 U.S. Dist. LEXIS 86890 (S.D.N.Y. 2007). The Court did not dismiss Plaintiff's claim that Defendant Village of Scarsdale unlawfully retaliated against her by passing her over for promotion to Sergeant after she filed a complaint of gender discrimination with the EEOC in January 2007.*fn2
Discovery closed on November 30, 2008, and on December 3, 2008 this case was reassigned to this judge. On January 30, 2009, Defendant Scarsdale filed the instant motion for summary judgment. Oral argument on the motion was held on April 3, 2009. For the reasons that follow, Defendant's motion for summary judgment is granted, and the Complaint is dismissed.
Plaintiff has been employed by the Village of Scarsdale as a police officer since April of 1996. (Compl. ¶3.) On January 3, 2007, Plaintiff filed a charge of discrimination against the Village of Scarsdale with the Equal Employment Opportunity Commission ("EEOC"), naming both Scarsdale and Chief Brogan as Defendants.
(Affidavit of Jane Gould in Opposition to Motion for Summary Judgment ("Gould Aff."), dated February 27, 2009, Ex. 2 [EEOC Complaint].) The EEOC Complaint charged that since Plaintiff's employment by the Scarsdale Police Department began in 1996, she had been "systematically and routinely . skipped for promotion and/or special duty assignments in favor of younger and/or lesser qualified [male] officers." (Id.)
Specifically, Plaintiff charged that in the summer/fall of 2006, she "was denied two promotional opportunities one of which was given to a male Hispanic with but two years experience on the job; the other was given to a male of Jordanian national origin, who had only two years experience on the job. In each case [Plaintiff] was better qualified for the appointment." (Gould Aff., Ex. 2.) Plaintiff was referring to the fact that she had applied for, but not been given, the assignments of Traffic Enforcement Officer or Field Training Officer. (Affidavit of Mark Reinharz in Support of Motion for Summary Judgment ("Reinharz Aff."), dated January 30, 2009, Ex. 6 [09/25/09 Deposition of Chief John Brogan] at 29-30.) Lieutenants Andrew Matturo and Thomas Altizio had made the decisions of whom to assign to those positions. (Id. at 30-31.)
On January 4, 2007, Plaintiff's counsel, Jonathan Lovett, sent a letter to Chief Brogan, informing him of the EEOC filing, and reminding him that it was "an independently actionable violation of federal law to retaliate against an individual for such a filing." (Gould Aff., Ex. 3 [01/17/07 Letter].) Upon receipt of the EEOC Complaint, Chief Brogan informed his "command staff," which included all three Lieutenants, that Plaintiff had filed a complaint with the EEOC. (Brogan Dep. at 22-23.) Chief Brogan did not tell any of the Sergeants or police officers that Plaintiff had filed an EEOC Complaint. (Brogan Dep. at 24.) There is no evidence in the record that any of the Sergeants knew that Plaintiff had filed a charge with the EEOC; Plaintiff claims however that it was "possible" that the Sergeants knew because "the lieutenants are known for discussing other people with everyone else on the job." (Reinharz Aff., Ex. 5 [09/16/2009 Deposition of Plaintiff] at 135-39.)
On March 16, 2007, the Scarsdale Police Department filed a response to Plaintiff's discrimination claims with the EEOC, disputing that Plaintiff had been subject to any discrimination on the basis of her gender. (Gould Aff., Ex. 4 [Department's response to EEOC Complaint].) This response was written and signed by Christopher Kurtz, a member of the firm of Bond, Schoeneck & King, and counsel to the Scarsdale Police Department. (Id.) Chief Brogan had reviewed the response letter prior to when it was sent to the EEOC. (Brogan Dep. at 34.)
In April 2007, subsequent to the January 3, 2007 filing of Plaintiff's EEOC complaint, two Sergeant positions became available within the police department. (Brogan Dep. at 43-44.) One of these Sergeant positions was for "Accreditation Manager," which is an "administrative" position that "require[d] direct interaction with supervisors all across the department and village." (Reinharz Aff., Ex. 7 [11/21/08 Deposition of Lt. Altizio] at 45.)
On April 5, 2007, Patrol Officers Newman and Raysor were interviewed for the Sergeants positions by Chief Blanco and the three Lieutenants (Matturro, Altizio, and Clark). (Reply Affidavit of Jessica Satriano in Support of Motion for Summary Judgment ("Satriano Aff."), dated March 13, 2009, Ex. 2 [Interview evaluations of Officer Newman], Ex. 3 [Interview evaluations of Officer Raysor].) Lieutenant Altizio rated Officer Newman "Highly Recommended" for the Sergeant position, while the other two Lieutenants and Chief Brogan awarded Officer Newman a "Recommended" rating.*fn3
With regard to Officer Raysor, Lieutenant Altizio rated him "Recommended" for the Sergeant position, while the two other Lieutenants and Chief Brogan gave Raysor a "Highly Recommended" rating. (Satriano Aff., Ex. 3.) Plaintiff had been interviewed in September 2005 for an earlier opportunity for a Sergeant promotion. (Satriano Aff., Ex. 4 [Blanco interview evaluations].) In the 2005 interview process, Chief Brogan and the three Lieutenants all awarded Plaintiff a "Recommended" rating. (Id.) Plaintiff suggests in her opposing brief that the fact that she was not re-interviewed for the May 2007 promotions supports an inference of a retaliatory motive. (Plaintiff's Brief in Opposition to Motion for Summary Judgment ("Pl. Br."), dated February 27, 2009, at 15.) However, Chief Brogan's uncontradicted testimony was that it was "consistent with [the Department's] prior practice" to only interviews candidates for promotion once. (Brogan Dep. at 46.) In support of this statement, Defendant points out that Officer Boss, a male officer who had been previously interviewed for a Sergeant position in 2006, also was not re-interviewed for the Sergeant's position in 2007. (Id. at 45-46.)
On April 13, 2007, the Police Department certified a list of police officer candidates eligible for the two promotions to Sergeant. (Gould Aff., Ex. 5 [certified list].) The following officers were listed on the "Certification of Eligibles," in descending order: Donald Boss (87 points); Plaintiff (83 points); Robert Raysor (81 points); Joseph Dusavage (80 points); James Newman (80 points); Jose Santos (75 points); Craig Keitel (74 points); Terence Ellis (73 points), and; Matthew Miraglia (71 points). (Id.) The top five candidates on the list -- Boss, Plaintiff, Raysor, Dusavage, and Newman -- were eligible for the two promotions.*fn4 (Brogan Dep. at 45; Gould Aff., Ex. 5.)
At the end of April 2007, a panel of three Lieutenants and ten Sergeants reviewed the application and submitted recommendations to the Chief of Police for the two Sergeant promotions. (Reinharz Aff., Ex. 10 [written recommendations].) All three Lieutenants recommended Officers Raysor and Newman for promotion to Sergeant. (Id.) As for the Sergeants, nine Sergeants recommended Officer Raysor for promotion, two Sergeants recommended Officer Newman, two Sergeants recommended Officer Boss, and one Sergeant recommended Plaintiff. (Id.)
On May 1, 2007, Lieutenants Altizio and Matturro compiled the following chart concerning the candidates eligible for promotion to Sergeant. (Gould Aff., Ex. 7 [Sergeant Candidate Statistical Information Chart].) This chart covering statistical information from January 1, 2004 to May 1, 2007 was submitted to Chief Brogan. (Id.)
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On May 23, 2007, Chief Brogan promoted Officers Raysor and Newman to Sergeant. (Brogan Dep. 150-152; Gould Aff., Ex. 5.) The next day, Plaintiff filed the instant lawsuit based on a right to sue letter for her other claims that she received from the EEOC on April 4, 2007.
A. Standard for Summary ...