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Fanelli v. State

United States District Court, E.D. New York

August 18, 2014

GINA M. FANELLI, Plaintiff,
v.
THE STATE OF NEW YORK, JAMES GILMORE, PETER A. SCULLY, and JOHN and JANE DOE (said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named Defendants), Defendants

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[Copyrighted Material Omitted]

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For the Plaintiff: Samuel O. Maduegbuna, Esq., William W. Cowles, II, Esq., Of Counsel, Maduegbuna Cooper LLP, New York, NY.

For the Defendants: Toni E. Logue, Assistant Attorney General, Of Counsel, New York State Attorney General's Office, Mineola, NY.

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MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On November 27, 2013, the Plaintiff Gina M. Fanelli (the " Plaintiff" ) commenced this action against the Defendants the State of New York (the " State" ); James Gilmore (" Gilmore" ); Peter A. Scully (" Scully" ); and John and Jane Doe, said names fictitious, the persons intended being those who aided and abetted the alleged unlawful conduct of the named Defendants (collectively, the " Defendants" ). In this regard, the Plaintiff asserts four

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causes of action against the Defendants, which are as follows: (1) gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (" Title VII" ); (2) gender-based discrimination in violation of the New York State Human Rights Law, New York State Executive Law § 296, et seq. (the " NYHRL" ); (3) retaliation in violation of Title VII; and (4) retaliation in violation of the NYHRL.

Presently before the Court is a motion by the Defendants to partially dismiss the Complaint pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court denies in part and grants in part the Defendants' motion.

I. BACKGROUND

Unless otherwise stated, the following facts are drawn from the Complaint and the Plaintiff's administrative charge of discrimination and are construed in a light most favorable to the Plaintiff.

For more than eight years, the Plaintiff has been an employee of the Defendant State. She was first hired by the State as a " Marine Biologist 1 Trainee" on April 24, 2005, and was assigned to the Region 1 Office of the New York State Department of Environmental Conservation (the " DEC" ), located in Stony Brook, New York. The Plaintiff's supervisor was the Defendant Scully, who was the Regional Director for the Region 1 Office.

On April 26, 2006, upon her successful completion of a twenty-four-month mandatory traineeship for the position of Marine Biologist 1 Trainee, the Plaintiff became a " Marine Biologist Trainee 2." The Complaint provides no clarification as to how the Plaintiff was able to complete a two-year traineeship when she was only hired for the position of Marine Biologist 1 Trainee one year prior to her promotion to the position of Marine Biologist Trainee 2. In any event, according to the Plaintiff, she then became a " Marine Biologist 1" the following year, on April 22, 2007. Through April of 2009, the Plaintiff continued to work as a Marine Biologist 1 at the Region 1 Office under Scully's supervision.

On April 25, 2009, Scully transferred the Plaintiff from the Region 1 Office to the Shellfish Growing Area Classification Unit of the DEC's Bureau of Marine Resources (the " BMR" ). According to the Plaintiff, this " transfer was contrary to the policies and procedures of the State and [the] DEC, in that Scully failed to give the Plaintiff an opportunity to challenge the transfer." (Compl. at ¶ 30.) Further, the Plaintiff alleges that between April of 2005 and April of 2009, while acting as the Plaintiff's supervisor, Scully " harbored discriminatory animus towards [the] Plaintiff on account of her sex." (Id. at ¶ 28). Also during this period, Scully allegedly " unjustifiably described [the] Plaintiff as adversarial, confrontational, combative, and not a team player" on several occasions " on account of [the] Plaintiff's sex." (Id. at ¶ 28.)

After the Plaintiff was transferred to the BMR, the Defendant Gilmore became her supervisor. The Plaintiff claims that Gilmore " had a history of discriminating against employees within [the] BMR on the basis of sex, age, race, color and national origin, and for retaliating against employees for complaining about such unlawful discrimination." (Id. at ¶ 32.)

On December 17, 2010, based on her score on a Civil Service examination, the Plaintiff applied for a promotion to the position of " Marine Biologist 2," and on December 28, 2010, she interviewed for

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the position. Relevant here, according to the Plaintiff, the DEC maintained a policy where " a member of a protected class, such as a woman, would be hired for a position she applied for if, based on her score on the Civil Service examination, she ranks among the top three candidates for the position." (Id. at ¶ 34.) However, allegedly, Gilmore " passed over" the Plaintiff for the position, which was given instead to a male employee, John Maniscalco, Jr. (" Maniscalco" ), even though he received the same score as the Plaintiff on the Civil Service examination. (Id. at ¶ 35.) Of note, Maniscalo was a former student of Gilmore at SUNY Stony Brook, School of Marine and Atmospheric Sciences (" SOMAS" ), where Gilmore also works as an adjunct professor.

The Plaintiff claims that although she was more qualified and more experienced than Maniscalco, Gilmore decided not to promote her based on her gender. In this regard, the Plaintiff points out that Maniscalco became a " Marine Biologist 1" on October 27, 2008, a year and a half after she attained that title. As such, under Civil Service rules, the Plaintiff would be considered more experienced than Maniscalco. The Plaintiff further alleges that Gilmore passed over two other women who were more qualified and experienced than Maniscalco.

About one month later, on January 20, 2011, the Plaintiff applied to be promoted to the position of " Ecology Biologist 2" at the Region 1 Office of the DEC, where Plaintiff had previously worked prior to her transfer to the BMR. The Plaintiff was one of four candidates considered for the position. She was the only female candidate. The Plaintiff and a male candidate, Jason Smith, scored a seventy-five on the Civil Service examination, ranking them behind another male candidate, Mathew Richards, who scored an eighty, and ranking them ahead of Andrew Walker (" Walker" ), who scored a seventy. Walker was ultimately awarded the Ecology Biologist 2 position, even though, according to the Plaintiff, Walker (1) was less senior than the Plaintiff and (2) did not have the same level of familiarity as the Plaintiff with respect to the Ecology Biologist 2's work location. Specifically, the Plaintiff emphasizes that she had previously worked for six years at the Region 1 Office, whereas Walker worked his entire career at the DEC's office in Long Island City, New York.

On August 22, 2011, the Plaintiff filed a charge of gender discrimination with the United States Equal Employment Opportunity Commission (" EEOC" ) and the New York State Division of Human Rights (" NYSDHR" ) pursuant to Title VII (the " EEOC charge" ). In the EEOC charge, the Plaintiff described the particulars of the discrimination as follows:

I have been employed with [the] Respondent [DEC] since April 24, 2005 as a Marine Biologist 1 Trainee. I have always had a good performance record and never been subjected to any disciplinary action. I applied for a promotion on 12/17/2010 as a Marine Biologist 2 and not hired for the position. The position was given to a male named (John Maniscalco), who had less seniority and the same score as myself.
I applied for another promotion for Ecology 2 Biologist on January 20, 2011. I was not hired for this position, which is a promotion because it was given to a male named Andrew Walker who had less seniority and a lower score on the examination and less experience, since I previously worked in the same office.
Respondent has a policy that protected class candidates shall be hired for the position, if they are in the top three candidates for the job according to the

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Civil [S]ervice list. In the first case, three women (including myself) were passed over. In the second, I was one of four candidates for the position, and second highest as far as score. I worked in that office for four years.

(Def. Mem. at Exh. A.)

The Plaintiff alleges that as a result of her filing the EEOC charge, Gilmore retaliated against her by (1) unjustifiably investigating her for wrongdoing and attempting to discipline her; (2) improperly denying her request for an Alternative Work Schedule; (3) improperly denying her grievance regarding the Alternative Work Schedule; and (4) barring and harassing her from attending Marine Resources Advisory Council meetings.

On August 29, 2013, the EEOC issued to the Plaintiff a Right to Sue Notice, which the Plaintiff received on September 4, 2013. Less than three months later, on November 27, 2013, the Plaintiff commenced this action.

II. DISCUSSION

A. The Standards of Review for a Motion to ...


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