Fanelli v. New York

200 F.Supp.3d 363

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.

13-CV-6627 (DRH)(AKT)

United States District Court, E.D. New York.

Signed July 29, 2016

For the Plaintiff: MADUEGBUNA, COOPER LLP, 30 Wall Street, 8^thFloor, New York, NY 10005, By: Samuel O. Maduegbuna, Esq., Kyle Donald Winnick, Esq., William W. Cowles, II, Esq.

For the Defendants: NYS Attorney General's Office, 200 Old Country Road, Suite 460, Mineola, NY 11501, By: Toni E. Logue, Esq.

MEMORANDUM AND ORDER

Denis R. Hurley, United States District Judge

Gina M. Fanelli ("Fanelli" or "plaintiff") commenced this action against defendants the State of New York, James Gilmore ("Gilmore"), Peter A. Scully ("Scully") (collectively, "defendants") asserting claims of gender-based discrimination and retaliatory employment practices in violation of 42 U.S.C. § 2000e (Title VII) and New York Human Rights Law ("NYHRL"), Executive Law § 296. In a decision dated August 18, 2014, the Honorable Arthur D. Spatt dismissed some of plaintiff's claims such that only Title VII claims against the State of New York based on allegations of discriminatory acts committed prior to October 26, 2010 and NYHRL claims against Gilmore in his official capacity remain. Fanelli v. New York , 51 F.Supp.3d 219 (E.D.N.Y.2014). Subsequently, the case was transferred to this Court.

Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (" Rule 56") seeking dismissal of the remaining claims. For the reasons set forth below, the defendants' motion is granted.

BACKGROUND

The following facts, drawn from the parties' Local Rule 56.1 statements, the pleadings, and prior decisions in this case, are undisputed unless otherwise noted.

Plaintiff's Employment at DEC

Plaintiff, a woman, began working at the New York State Department of Environmental Conservation ("DEC") in April of 2005 when she was hired as a Marine Biologist I Trainee at DEC's Region 1 Office. Scully was the Regional Director of Region 1 during all times relevant to this motion. Between 2005 and early 2009, plaintiff worked in the Tidal Wetlands Regulatory Program ("TW Program"). During that time, she worked under the direction of Karen Graulich ("Graulich"). On April 22, 2007, plaintiff was given the title of Biologist 1 (Marine). In October of 2007, defendant Gilmore was appointed as Chief of the Bureau of Marine Resources ("BMR") located in East Setauket, New York and has held that position at all times relevant to this motion.

On January 15, 2009, executive staff including Scully met with staff of the Region 1 TW Program, including Graulich and Fanelli, to discuss implementation of improvements to the TW Program. According to defendants, plaintiff's conduct during the meeting "made it clear that ... she was resistant to the changes being proposed, by repeatedly shaking her head and stating that [the] program staff was ‘being punished for doing a good job.’ " (Defs.' R. 56.1 Stmt. ¶ 20.) Plaintiff, however, disputes that she behaved in such a way.

The Biologist 2 (Marine) Position

Plaintiff applied for the position of Biologist 2 (Marine) in or about December 2010. This position was responsible for supervising the employees of the unit and directing the work of the unit, and it involved participation in the tactical committees of the Atlantic State Marine Fisheries Commissions. Both plaintiff and another candidate, John Maniscalco ("Maniscalco"), scored 75 "on the eligible list."¹ (Defs.' R. 56.1 Stmt. ¶ 30.) However, Maniscalco had a Master's of Science, while plaintiff did not. Six individuals, including plaintiff, were interviewed by Steven Heins ("Heins"), Biologist 3 (Marine), to whom the person occupying the position would directly report at BMR, and/or to Gilmore. Heins decided which candidates would be interviewed through a process called "canvassing," which means looking at the eligible list and selecting the top scoring candidates. During the interview, the interviewers used a point matrix, awarding points to candidates for various categories. According to Gilmore, Maniscalco scored higher than any other candidate on the point matrix. Accordingly, Maniscalco was recommended for the position to Human Resources.

At all times relevant to this motion, DEC policy required that when a person of a protected class was interviewed for a position and not selected, a written justification letter must be sent to Juan Abadia ("Abadia"), DEC's Affirmative Action Officer, for approval. On December 13, 2010 Gilmore sent such a justification to Abadia, and on December 17, 2010, Abadia approved the hiring of Maniscalco.

The Biologist 2 (Ecology) Position

Shortly thereafter, plaintiff applied for the Biologist 2 (Ecology) position. "In reviewing the eligible list for this managerial position, individuals who scored a 70 and above were canvassed for interviews." (Defs.' R. 56.1 Stmt. ¶ 43.) Plaintiff had a score of 75 and Andrew Walker ("Walker") had a score of 70 on the eligible list. However, Walker had a Master's of Science, which plaintiff lacked.

On or about December 28, 2010, five individuals, including plaintiff, were interviewed by Robert Marsh, Biologist 3 (Ecology), to whom the person occupying the position would report at Region 1, and JR Jacobson, Biologist 3 (Ecology), who was from the DEC's Central Office in Albany. Ultimately, Andrew Walker ("Walker") was recommended for the position. Since plaintiff was a protected class candidate who had not been selected for the position, a justification letter needed to be sent to Abadia for approval. In his justification memorandum dated December 30, 2010, Marsh reported that Walker was found by interviewers to have a stronger educational background in marine sciences, more relevant regulatory and marine habitat experience and more experience with supervision of regulatory staff. However, the justification letter did not specifically address why the interviewers believed that plaintiff herself could not perform the duties of the position. Subsequently, Abadia rejected the justification. As a result, Scully, head of DEC's Region 1 office, submitted a supplemental justification that underscored plaintiff's "past resistance and expressed opposition to ongoing efforts to implement reforms to address acknowledged and longstanding dysfunction in the Tidal Wetlands regulatory program, which would become the direct responsibility of the successful candidate for the position." (Defs.' R. 56.1 Stmt. ¶ 53.) Abadia then approved Walker's hiring.

Investigation of Plaintiff's Internet Use

In July 2011, Environmental Conservation Captain Dorothy Thumm ("Thumm") informed Gilmore verbally that another employee, Christopher Spies from Region 1 Pesticides, had been posting inappropriate internet blogs on Noreast.com , disseminating both confidential DEC information and voicing disagreements with BMR fisheries management decisions. Thumm contacted Mr. Spies' supervisor, Vincent Palmer, regarding Spies's activities, and thereafter informed Gilmore that plaintiff, who was living with Spies at the time, was involved in similar activities. Upon learning of plaintiff's alleged internet activity, Graulich verbally counselled plaintiff to restrict her internet use while at work. Subsequently, Employee Relations informed Gilmore that it would take the lead on investigating plaintiff's internet use during work and any possible communication of confidential information to the public. In April, 2012, after its investigation, Employee Relations decided not to bring disciplinary action against plaintiff.

Compressed Work Schedule

At DEC, employees can apply for a compressed pay period schedule where they work longer hours on some days in order to be allowed to work nine days over a two week pay period. According to the DEC's website, "[i]t is the policy of the [DEC] to provide alternative work schedules when it is clearly demonstrated that such schedules will not impair the delivery of services to the public, will maintain and enhance productivity, will retain and attract the most talented individuals or will reduce absenteeism and/or tardiness without compromising management and supervision of Department programs." (Pl.'s Ex. 20.) The website also provides that "[e]stablishment of an alternative work schedule is at the discretion of the DEC and can be revoked by management at any time." Moreover, the website states that "[s]ubject to management approval, compressed pay period schedules are available to full time annual salaried DEC employees" when, inter alia , "[t]he employee's work performance is such that he/she has clearly demonstrated the ability to work independently and with minimum supervision."

According to defendants, in early 2012, Gilmore recommended that plaintiff's request for a compressed pay period schedule be denied in light of her inappropriate use of the internet at work, which at the time was still being reviewed by Employee Relations. Plaintiff, however, contends that plaintiff's request was never sent to the appropriate Albany office for approval. However, even though plaintiff's request was denied, her supervisor, Graulich, constructively allowed her a compressed pay schedule throughout 2012 by completing additional paperwork on a weekly basis to justify changing her work schedule for each week. In February, 2013, plaintiff's subsequent request for a compressed pay period schedule was approved.

MRAC Meetings

Marine Resources Advisory Council ("MRAC") was "established by law in 1987 to advise the DEC on marine resources issues, such as commercial and recreational fishing, proposed regulations and the protection and utilization of New York's valuable marine resources." (Defs.' R. 56.1 Stmt. ¶ 75.) MRAC meetings occur every two months at the Setauket office...