Defendant's motion for summary judgment dismissing discrimination claim was denied. Questions of fact exist regarding whether or not the defendant's reasons for not promotion the claimant were pretextual.
|Claimant(s):||KENNETH C. DeKENIPP|
|Claimant short name:||DeKENIPP|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||By Order dated July 31, 2009 the caption was amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||The Law Office of Steven A. Morelli, P.C.
By: Eric Z. Reimer, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 6, 2010|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
Claimant, a 55-year old male employed by the Department of Transportation (DOT), alleges he was discriminated against on the basis of age when he was not selected for two promotions in violation of the New York State Human Rights Law (Executive Law § 290 et seq.) (NYSHRL) and the Age Discrimination in Employment Act (29 USC § 621 et seq.) (ADEA).
Claimant was hired by the DOT as a Laborer in 1978 (defendant's Exhibit D, claimant's deposition transcript, p. 11) and received several promotions, including Senior Engineer Technician and Principal Engineer Technician in the Department of Traffic and Safety. In 1989 he was appointed to the position of Assistant Resident Engineer under a provisional CE1 (Civil Engineer 1) service title, which became permanent in 1993 upon passing a civil service examination (defendant's Exhibit D, claimant's deposition transcript, p. 23; claimant's Exhibit B, claimant's affidavit, ¶ 8 [d]). That same year he was transferred to the DOT Design/Environmental Department where his duties included conducting phase 1 site assessments and working as an Environmental Audit Coordinator (claimant's Exhibit B, claimant's affidavit, ¶ 8 [e]). Claimant received his Master's Degree in Environmental Technology in 1997 or 1998 (defendant's Exhibit D, claimant's deposition transcript, p. 45; claimant's Exhibit B, claimant's affidavit, ¶ 7). In October 2001 he was transferred to the Design Group where he worked until his transfer to the Claims Unit in October 2002 (defendant's Exhibit D, p. 43).(2)
On November 17, 2006 claimant was interviewed by Carlos Rojas and Harold Rogers for the position of Maintenance Environmental Coordinator (MEC) in the Transportation Maintenance Department(3) , an Environmental Specialist 2 (ES2) civil service title. On December 6, 2006 claimant received a letter advising him that he had not been selected for the position. Claimant alleges both in the claim and his affidavit submitted in opposition to the motion that he was well qualified for the position based on both his educational background, which includes a Master's Degree in Environmental Technology, and his 28 years experience with DOT, more than eight years of which were spent as a Civil Engineer in the Design/Environmental Group. He alleges that the individual who received the promotion, Richard Gass, was not only younger than the claimant, but less qualified. According to the claimant, Mr. Gass had only been employed with the DOT since 2000 and did not qualify for the ES2 title because, as a Landscape Architect, he did not spend at least 50% of his time performing environmental work as was required of the successful candidate for the position. Moreover, the claimant holds a Master's Degree in Environmental Technology whereas Mr. Gass does not.
In 2007 Mr. Gass was promoted to a Senior Landscape position, leaving vacant, once again, the Transportation Maintenance Department MEC position. At the same time, an ES2 position opened up in the Construction Department for a Construction Environmental Coordinator (CEC). A bulletin was posted announcing the vacancies for both positions together with the required qualifications (claimant's Exhibit O). Claimant applied for both positions and was selected for the MEC position in the Transportation Maintenance Department. Claimant alleges that this position was less secure than the CEC position in the Construction Department because, not only was it a provisional appointment, meaning it became permanent only upon attaining the required score on the next civil service examination, it was contingent upon Mr. Gass successfully completing a probationary period in his new position. The CEC position in the Construction Department offered more job security, according to the claimant, because although it was a provisional appointment, it was not contingent.(4) Claimant alleges that the candidate selected for the CEC position in the Construction Department, Raji Matthew, was less qualified for the position because Mr. Matthew lacked the necessary environmental experience and had neither the claimant's educational background nor his 28 years experience with the DOT.
The NYSHRL makes it "an unlawful discriminatory practice . . . [f]or an employer . . . to refuse to hire or employ . . . or to bar or to terminate from employment an individual eighteen years of age or older, or to discriminate against such individual in promotion, compensation or in terms, conditions, or privileges of employment, because of such individual's age (Executive Law § 296 [3-a] [a] see also § 296  [emphasis added]). The ADEA likewise establishes that it is "unlawful for an employer . . . to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age" (29 USC § 623 [a]  [emphasis added]).
The standards for analyzing age discrimination claims under the NYSHRL and the ADEA have historically been the same (Hardy v General Elec. Co., 270 AD2d 700, 701 , lv denied 95 NY2d 765 ; Gorzynski v Jetblue Airways Corp. 596 F3d 93, 106 n 6 [2d Cir 2010]). The standard applicable to claims under the ADEA was recently clarified, however, by the United States Supreme Court which held that in such cases "[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the "but-for" cause of the challenged employer decision" (Gross v FBL Financial Services, Inc., 129 S Ct 2343, 2351 ). Prior to the decision in Gross, a mixed-motive analysis which required an employee to prove only that an adverse employment action was motivated "at least in part" by unlawful discrimination was applied to both Title VII and ADEA claims (see e.g. Tomassi v Insignia Fin. Group, Inc., 478 F3d 111, 114 [2d Cir 2007]). The decision in Gross was based largely on the fact that when Congress amended Title VII by explicitly authorizing claims where unlawful discrimination was "a motivating factor" for an employment practice (42 USC § 2000e- [m]), it made no similar amendment to the ADEA. The Court explained that "negative implications raised by disparate provisions are strongest when the provisions were considered simultaneously when the language raising the implication was inserted" (Gross, 129 S Ct at 2349 [quotation marks and citation omitted). Focusing solely on the literal text of the ADEA, which prohibits discrimination "because of" age, the Court concluded that an employee alleging employment discrimination in violation of the ADEA must prove that the discrimination was the "but for" cause of an adverse employment action. Given the similarity in the text of the ADEA and the NYSHRL, both of which prohibit discrimination "because of" age, and the fact that the Gross decision was based on "the textual differences between Title VII and the ADEA", the Court sees no reason to apply a different analysis to a claim alleging violations of the NYSHRL.
In light of the high Court's departure from Title VII precedent with respect to the mixed-
motive analysis in ADEA cases, the question arises whether or not the burden-shifting analysis set forth by the Court in McDonnell Douglas Corp. v Green (411 US 792 ), a Title VII case employed by both state and federal courts in analyzing claims alleging violations of the ADEA and NYSHRL, still applies in ADEA cases (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 ; Gorzynski v Jetblue, 596 F3d at 106). While the Supreme Court in Gross noted that it has "not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v Green (supra) is appropriate in the ADEA context", it did not reject that premise altogether (Id. at 2349 n 2). As a result, Courts have continued to apply the McDonnell Douglas three-part analysis to age discrimination claims, as will the Court here (see Gorzynski [supra]; Miller v Natl. Assn. of Sec., 703 F Supp 2d 230 [ED NY 2010]) .
Claimant is first required to establish a prima facie case of discrimination by a preponderance of the credible evidence (Ferrante v American Lung Assn., 90 NY2d 623 , citing, inter alia, McDonnell Douglas Corp. v Green, 411 US 792 ). "A prima facie case of age discrimination requires that [claimants] demonstrate membership in a protected class, qualification for their position, an adverse employment action, and circumstances that support an inference of age discrimination" (Kassner v 2nd Ave. Delicatessen Inc., 496 F3d 229, 238 [2d Cir 2007]; see also Ferrante, 90 NY2d at 629; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992 ). Once this low threshold is met, the burden shifts to the defendant to rebut claimant's prima facie case of discrimination with a legitimate, nondiscriminatory reason for the adverse employment action (Stephenson, 6 NY3d at 270-271; Ferrante, 90 NY2d at 629; Di Mascio v General Elec. Co., 27 AD3d 854 ; Arendt v General Elec. Co., 305 AD2d 762 , lv denied 100 NY2d 513 ). If defendant succeeds, the presumption of discrimination " 'drops from the case' " and the burden shifts back to the the claimant to show that the reasons proffered by the defendant for the adverse employment action were merely a pretext for discrimination (Ferrante, 90 NY2d at 629-630, quoting St. Mary's Honor Ctr. v Hicks, 509 US 502, 507 ). This may be accomplished through the submission of evidence that the employer's explanation for the challenged action is false or that the employer has a discriminatory motive (Morse v Wyoming County Community Hosp. & Nursing Facility, 305 AD2d 1028, 1029 ). As the United States Supreme Court made clear in Reeves v Sanderson Plumbing Prods., Inc. (530 US 133, 148 ) "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated" (see also Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330-331 ; Matter of Bemis v New York State Div. of Human Rights, 26 AD3d 609 ; Matter of Classic Coach v Mercado, 280 AD2d 164 , lv denied 97 NY2d 601  [rejecting the rule that more than just proof of a prima facie case combined with evidence that the nondiscriminatory reasons proffered by the defendant were false is necessary to establish a prima facie case of unlawful discrimination]). In Gorzynski (supra) the Second Circuit Court of Appeals held that the "but for" standard set forth in Gross "changes the latter part of this formulation by eliminating the mixed-motive analysis that circuit courts had brought into the ADEA from Title VII cases" (Gorzynski 596 F3d at 106).
To prevail on a motion for summary judgment in a discrimination case "defendants must demonstrate either [claimant's] failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 ; Ferrante, 90 NY2d at 631). Here, defendant concedes that claimant fulfilled the minimal requirements necessary to establish a prima facie case of age discrimination, i.e., membership in a protected class, qualification for the position, an adverse employment action and circumstances that support an inference of age discrimination. Defendant argues, however, that it had a legitimate, nondiscriminatory reason for failing to promote the claimant. Defendant contends in this regard that claimant was not selected for the positions at issue herein because the candidates selected "were better suited for the positions, were more qualified for the position[s], and performed better at the interview by providing better answers to questions posed at the interviews" (affirmation of Michele M. Walls dated May 19, 2010, ¶ 21). In support of this contention, defendant submits the affidavits of Carlos Rojas and Nancy Plotke together with various examination before trial transcripts.
Mr. Rojas states in his affidavit that an ES2 position became available for a MEC in the Transportation Maintenance Department in October 2006 (Rojas affidavit, ¶ 3). Mr. Rojas was to be the direct supervisor of the individual appointed and was a member of the panel that conducted the interviews. Also conducting the interviews were William Thornewell, Mr. Rojas' supervisor, and Harold Rogers, an Equal Employment Opportunity (EEO) representative.(5) Three candidates were initially eligible for the position based upon their ranking on the civil service list. All three were interviewed on November 10, 2006. Following the interview, Mr. Rojas and Mr. Thornewell selected one of the three candidates as their first choice and Mr. Gass as their second choice. The individual selected as the first choice for the position accepted a different position, however, and the list was therefore considered "broken" because there were fewer than three candidates on the list for immediate appointment (Rojas affidavit, ¶ 8). When this occurs "the agency may interview prospective candidates who are not on the Civil Service eligible list. Claimant was such a person" (Rojas affidavit, ¶ 8; see also Plotke affidavit, ¶ 6). Claimant was interviewed on November 17, 2006. Mr. Thornewell was not present for the interview. Mr. Rojas indicates that all of the candidates were asked the same questions regarding environmental issues (Rojas affidavit, ¶ 10) and avers that Mr. Gass was selected because "[a]fter [the] interview, it was the panel's opinion that Mr. Gass continued to be the better qualified candidate for the position at that time and would be a better fit given his education and his relevant experience both with and without DOT. In addition, Mr. Gass provided better responses to the panel's questions than the claimant did" (Rojas affidavit, ¶ 11). Mr. Rojas testified at his deposition that Mr. Gass had experience managing landscape contracts and obtaining permits from the DEC where required (defendant's Exhibit E, p. 30).
Mr. Rojas also states in his affidavit that he and Mr. Thornewell did not recommend a candidate to Mr. Brown, the Regional Department Head, until after the claimant's interview on November 17, 2006 (Rojas affidavit, ¶ 15). At his deposition, however, Mr. Rojas testified to the following (defendant's Exhibit E, p. 25):
"Q. You had already made your recommendation to Mr. Brown prior to interviewing Mr. DeKenipp; isn't that correct?
Nancy Plotke, a Senior Personnel Administrator, testified at an examination before trial that based upon the handwritten notation next to Mr. Gass' name on the civil service list (defendant's Exhibit J), he was appointed to the position on November 16, 2006, one day prior to the date the claimant was interviewed (defendant's Exhibit H, p. 41). She also testified that while they try to make the appointment date coincide with the beginning of a pay period, they do not "backdate" appointments. Ms. Plotke thereafter testified (defendant's Exhibit H, p. 43):
"Q. So if Mr. Gass was appointed on 11/16, he had to have been appointed that day or before that day?
Q. Not after that day?
Ms. Plotke explained in an affidavit submitted in support of defendant's motion that upon her review of the electronic file maintained by her office it became clear that Mr. Gass was appointed to the position after the date of the claimant's interview and that the handwritten notation on the civil service list reflects only the effective date of the appointment.
Mr. Thornewell testified at an examination before trial regarding the reasons for selecting Mr. Gass over the claimant for the MEC position (defendant's Exhibit F, p. 27):
"Q. How was the decision made that [Mr. Gass] was the second best qualified candidate?
A. The way he answered the questions that we had. He had the GIS experience. He had some dealings with the DEC. He had lots of background experience in horticultural stuff. He had an arborist license and a landscape architect license. These were some of the things we were looking for at that time.
Q. Anything else?
A. He knew about the herbicides program. He was familiar with Asian Beetle quarantine areas. He seemed to be pretty knowledgeable about some of the things we were looking for at that time."
Mr. Thornewell testified further that because of Mr. Gass' experience as a Landscape Architect he "fit what we were looking for more closely" than did the claimant (defendant's Exhibit F, p. 33).
Byron Alford, Regional Construction Engineer, interviewed the claimant, along with others, for the CEC position in the Construction Unit. Mr. Alford testified that Raji Matthew was selected for the promotion because he was the more qualified candidate (defendant's Exhibit G, p. 11). His opinion in this regard was based entirely on the candidates' performance during the interviews (defendant's Exhibit G, pp. 11, 25). Mr. Alford testified that when claimant learned during the interview that the position for which he was applying was not a supervisory position and that he would not direct the Engineer In Charge of individual projects, he expressed disappointment, which Mr. Alford 4 testified "bothered [him] a lot . . . Because the position is an environmental coordinator . . . The EIC is in charge of the project, not the coordinator" (defendant's Exhibit G, p. 26).
The proof proffered in support of defendant's motion includes not only the deposition transcripts of those individuals who interviewed the claimant and failed to promote him, but the deposition transcript of the claimant. Claimant's deposition testimony established his 28-year tenure with the DOT, eight years of which were spent in the Design/Environmental Group where he devoted 100% of his time to the performance of environmental work (defendant's Exhibit D, claimant's deposition transcript, p. 72). Mr. Gass did not commence his employment with DOT until the year 2000 (defendant's Exhibit D, claimant's deposition transcript, p. 72).(6) According to the claimant's testimony, Mr. Gass did not meet the minimum qualifications for the ES2 promotion to the MEC position because, as a Landscape Architect, he did not have the requisite environmental experience. Lastly, the proof submitted on the motion established that the claimant obtained a Master's Degree in Environmental Technology in 1997 or 1998 (defendant's Exhibit D, claimant's deposition transcript, p. 45), a qualification which neither Mr. Gass nor Mr. Matthew possessed.
Viewing this evidence in the light most favorable to the claimant, defendant failed to meet its burden of establishing its entitlement to judgment as a matter of law. As the party seeking summary judgment, defendant was required to make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New York Univ. Med. Center, 64 NY2d 851 ; Zuckerman v City of New York, 49 NY2d 557 ). Inasmuch as defendant concedes that the claimant meets the requirements necessary to establish a prima facie case of intentional discrimination, to prevail on the motion, defendant was required to establish legitimate, nondiscriminatory reasons for the failure to promote the claimant (Forrest, 3 NY3d at 305). Given the existence of triable issues of fact, however, summary judgment is precluded (Wilson-Toby v Bushkin, 72 AD3d 810, 811 ).
While the papers submitted in support of defendant's motion contained some evidence of legitimate, nondiscriminatory reasons for the defendant's selection of Gass and Matthews to fill the ES2 positions, it also contained sufficient proof from which a reasonable fact finder could conclude that the reasons proffered by the defendant for their promotions were false. With respect to the MEC position in the Transportation Maintenance Department, both Rojas and Thornewell opined that Mr. Gass was more qualified for the position by virtue of his experience as a Landscape Architect. Claimant testified that whereas he had over eight years experience performing environmental work in the Design/Environmental Department, Mr. Gass had none in his capacity as a Landscape Architect. In addition, claimant's educational achievements include a Master's Degree in Environmental Technology, whereas Mr. Gass had only a Bachelor of Science Degree in Landscape Architecture. Claimant's testimony also established that he had far more seniority than Mr. Gass, a fact which Ms. Plotke testified warrants promotional consideration. In this regard claimant testified that he has worked for the DOT since 1978. Mr. Rojas indicated Mr. Gass was hired in the year 2000.
Defendant's motion papers also contained conflicting proof regarding whether or not Mr. Gass was appointed to the position prior to the date claimant was interviewed. While Ms. Plotke testified that it appeared from a review of defendant's Exhibit J that Mr. Gass was appointed to the position on November 16, 2006, she explains in an affidavit that this was merely the effective date of the promotion. The affidavit of Mr. Rojas similarly contradicts his deposition testimony. While he stated in his affidavit that no recommendation for the MEC position had been made until after claimant was interviewed on November 17, 2006 (Rojas affidavit, ¶ 15), he stated just the opposite during his examination before trial (defendant's Exhibit E, p. 25). If Mr. Gass was, in fact, selected for the MEC position prior to claimant's interview, defendant's reasons for selecting him over the claimant, i.e., that he performed better at the interview and was more qualified, could be perceived as pretextual. To the extent the affidavits of Plotke and Rojas conflict with their examination before trial testimony, they raise issues of credibility which may not be resolved on a motion for summary judgment (see Ferrante, 90 NY2d at 631 ["It is not the Court's function on a motion for summary judgment to assess credibility"]).
Defendant's proof that Raji Matthew was the most qualified candidate for the ES2 position in the Construction Department is similarly deficient. Mr. Alford testified that in his opinion Mr. Matthew was more qualified for the position than the claimant based entirely on the candidate interviews and the fact that he did not like claimant's response upon learning that the duties of the position did not include supervising the Engineer In Charge. While this may be, defendant's own proof raises triable issues of fact as to whether the proffered reason for not selecting the claimant is pretextual. The defendant's motion papers establish the claimant had been employed by the DOT for 28 years as compared to Mr. Matthews' approximately six years at the time the employment decision was made. Claimant's educational background included a Master's Degree relevant to the primary duties of the position, and claimant had over eight years experience in the Design/Environmental Department where, he asserts, 100% of his time was spent performing environmental work. Mr. Matthew, on the other hand, started work for the DOT as a Junior Engineer in 2000 and received the title of Principal Engineer Technician one year later. He was thereafter promoted to Transportation Analyst in September 2006. According to Mr. Alford, Mr. Matthew performed environmental duties during his tenure as Principal Engineer Technician and Transportation Analyst (Defendant's Exhibit G, Alford deposition, pp. 19-21). Considering claimant's 28- year tenure with the DOT as well as his apparently superior educational background, and the open question which exists regarding the candidates' relevant environmental experience, the Court concludes that questions of fact exist regarding whether or not the defendant's reasons for not promoting the claimant to the CEC position are pretextual. As the Court of Appeals has recognized, "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means" (Ferrante, 90 NY2d at 629 [quotation marks and citation omitted]).
In summary, the defendant's moving papers present conflicting proof regarding whether or not defendant's reasons for not promoting the claimant to either the MEC or CEC positions are pretextual. While the defendant asserts that the candidates selected for these positions were more qualified and performed better at the interviews, the proof submitted raises questions of fact on these issues. Moreover, with respect to the selection of Mr. Gass for the MEC position, a question of fact exists regarding whether or not he was appointed to the position prior to the date of claimant's interview. Under these circumstances, a reasonable fact finder could find that discrimination was the "but for" cause of defendant's decision not to promote him. Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ).
Even if the Court were to conclude that the defendant met its burden of establishing its prima facie entitlement to summary judgment through the submission of evidence of legitimate nondiscriminatory reasons for failing to promote the claimant, claimant's evidence submitted in opposition to the motion raised questions of fact regarding whether the reasons provided were a mere pretext for discrimination.
Claimant's submission of the November 16, 2006 job announcement makes clear that the position required the performance of significant environmental duties (claimant's Exhibit E). While the extent of Mr. Gass's involvement in environmental issues in his position as a Landscape Architect is left undefined, claimant provided a copy of a document dated June 7, 2006 attesting to the fact that at least 50% of his duties in the DOT Design/Environmental Unit between March 1993 and October 2001 concerned environmental matters (claimant's Exhibit F).
With regard to the 2007 selection of Mr. Matthews for the CEC position in the Construction Department, claimant submitted the Regional Bulletin which describes the minimum qualifications necessary for both the MEC and CEC positions. The qualifications for both these positions included the following:
"Qualifying experience must include substantial involvement (at least 50% of your time) in the preparation and review of environmental impact analyses, requiring knowledge and application of State and Federal environmental laws, regulations, methods, procedures and standards in the appropriate specialty. This must also include preparation of technical analyses on environmental impact matters; providing consultation on environmental impact laws, rules and regulations; or conducting office evaluation and field investigations related to environmental regulatory programs" (claimant's Exhibit O).
While claimant has submitted an attestation confirming at least 50% involvement in environmental issues during his tenure with the Design/ Environmental Unit, the defendant has failed to provide similar documentation regarding Mr. Matthews. Questions of fact exist as to whether Mr. Matthews met the 50% requirement established in the job bulletin.
Viewing the evidence in the light most favorable to the non-moving party, the facial disparity in the applicants' qualifications raises triable issues of fact regarding whether or not the reasons proffered by the defendant for not selecting claimant for the MEC and CEC positions were false. The combination of the claimant's prima facie case and sufficient evidence to find that the employer's asserted reasons for not selecting the claimant for promotion were false will permit the trier of fact to infer that intentional discrimination was the but for cause of the employment action (see Gross, 129 S Ct at 2351; Reeves v Sanderson Plumbing Prods., Inc., 530 US at 148; Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330-331; Matter of Classic Coach v Mercado, 280 AD2d 164 , lv denied 97 NY2d 601 ).
Based on the foregoing, defendant's motion for summary judgment is denied.
October 6, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
2. By Decision and Order dated January 26, 2009, the claim was dismissed as time-barred to the extent it alleged that this transfer was in retaliation for filing a grievance.
3. Claimant has referred to this Department as both the Highway Maintenance Department and the Transportation Maintenance Department. For the sake of uniformity, the Court will refer to this Department as the Transportation Maintenance Department as this is how it is referred to on the job posting for the position (claimant's Exhibit E).
4. Defendant previously moved to dismiss this portion of the claim contending that because the claimant received the ES2 position in the Transportation Maintenance Department, no adverse employment action occurred. The Court rejected the argument, holding that the claimant's allegation that he was denied a position that offered enhanced job security could provide the basis for an adverse employment action (DeKenipp v State of New York, UID # 2009-015-114, Claim No. 115399 [Ct Cl, January 26, 2009], Collins, J.).
5. According to Mr. Rojas, an EEO representative was present to "ensure that the candidates were treated equally and fairly under the employment laws" (Rojas affidavit, ¶ 6).
6. Ms. Plotke testified that candidates are to receive credit for their DOT seniority (defendant's Exhibit H, Plotke deposition transcript, p. 19).