Zagaja v. Village of Freeport, et al

Filing 117

ORDER granting in part and denying in part 99 Motion to Dismiss. For the reasons set forth herein, defendants' motion to dismiss is granted in part and denied in part. The Court dismisses the discrimination claims relating to the Deputy and A ssistant Chief of Police positions for lack of subject matter jurisdiction. The discrimination claims relating to the Deputy and Assistant Chief of Police positions must be pursued through the procedures provided in the Government Employees Civil Ri ghts Act of 1991- namely, a final order from the EEOC with appeal to the Court of Appeals. The Court denies the motion to dismiss for failure to exhaust administrative remedies, and denies the motion for summary judgment as to plaintiff's retaliation claim. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/3/2015. (Moe, Alison)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-3660 (JFB)(SIL)
_____________________

DEBBIE ZAGAJA,
Plaintiff,
VERSUS

VILLAGE OF FREEPORT & ANDREW HARDWICK,
Defendants.
___________________
MEMORANDUM AND ORDER
June 3, 2015
___________________

JOSEPH F. BIANCO, District Judge:
Defendants the Village of Freeport
(“Village”)
and
Andrew
Hardwick
(“Hardwick”) (collectively, “defendants”)
move to dismiss the complaint filed by
plaintiff Debbie Zagaja (“plaintiff” or
“Zagaja”), pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(c), 12(h)(2),
12(h)(3), and 56. Zagaja alleges that she
suffered gender, race, and/or color
discrimination stemming from harassment, a
hostile work environment, her demotion,
and defendants’ failure to promote her to a
command staff position, in violation of Title
VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. (“Title VII”); the
New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290; and
42 U.S.C. §§ 1981, 1983. She also claims
that defendants retaliated against her in
response to her protected activities.1
1

The Court previously granted summary judgment to
defendants on plaintiff’s hostile work environment

In the present motion, defendants argue
that the complaint must be dismissed
because: (1) the Deputy Chief and Assistant
Chief of Police positions are policymaking
positions that are exempt from the
protections of Title VII and, therefore, the
related discrimination claims are subject to
the exclusive jurisdiction of the Equal
Employment Opportunity Commission
claim, and her claim of gender discrimination as it
relates to the female superior officers’ locker room,
but denied judgment with respect to the employment
discrimination claims relating to plaintiff’s demotion
from Deputy Chief and defendants’ failure to
promote plaintiff to Assistant Chief and Chief of
Police, the retaliation claim, and Hardwick’s
qualified immunity. Zagaja v. Vill. of Freeport, No.
10-CV-3660 (JFB)(WDW), 2012 WL 5989657
(E.D.N.Y. Nov. 20, 2012) [hereinafter, “November
20 Memorandum and Order”]. The Court also denied
defendants’ motion for reconsideration. Zagaja v.
Vill. of Freeport, No. 10-CV-3660 (JFB)(WDW),
2013 WL 2405440 (E.D.N.Y. June 3, 2013)
[hereinafter “June 3 Memorandum and Order”].

could conclude that plaintiff’s protected
activities were the “but for” cause of
defendants’ failure, among other things, to
promote plaintiff to a command staff
position. Thus, the retaliation claim survives
summary judgment even under the Supreme
Court’s new standard for retaliation claims
articulated in Nassar. Accordingly, the
Chief of Police-related discrimination claim
and the retaliation claim will proceed to
trial.

(“EEOC”) and the Second Circuit Court of
Appeals pursuant to the Government
Employee Rights Act of 1991 (“GERA”), 42
U.S.C. § 2003e-16 et seq.; (2) plaintiff has
not exhausted her administrative remedies
with respect to the Chief of Police position
because her EEOC charge was facially
deficient and she was denied a promotion to
that position months after she filed the
charge; and (3) the retaliation claim cannot
survive because plaintiff cannot establish
that any protected activity was the “but for”
cause of her failure to be promoted, pursuant
to University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013).

I. PROCEDURAL BACKGROUND2
Plaintiff filed the complaint in this action
on August 11, 2010. Defendants interposed
an answer on October 20, 2010. On January
23, 2012, defendants moved for summary
judgment. The Court issued an oral ruling
granting in part, and denying in part,
defendants’ motion on August 13, 2012.
Plaintiff filed an amended complaint on
August 21, 2012. On September 10, 2012,
defendants filed a Notice of Appeal. The
Court issued a written Memorandum and
Order with respect to the summary judgment
motion on November 20, 2012. On
December 10, 2012, defendants again filed a
Notice of Appeal. On December 12, 2012,
defendants
filed
a
motion
for
reconsideration. The Court denied the
motion in its entirety on June 3, 2013. In the
interim, defendants retained new counsel.
On July 31, 2013, the Second Circuit
dismissed defendants’ appeal for lack of
appellate jurisdiction.

As a threshold matter, the Court
concludes that the policymaker defense and
the exhaustion issue are properly before the
Court at this juncture and have not been
waived. Thus, the Court has considered the
merits of defendants’ motion and, for the
reasons set forth below, the motion is
granted in part and denied in part. First,
with respect to the policymaker defense, the
Court concludes that the positions of Deputy
and Assistant Chief of Police are exempt
from the coverage of Title VII and, as a
result, the Court lacks subject matter
jurisdiction
over
plaintiff’s
related
discrimination
claims.
Thus,
the
discrimination claims relating to the Deputy
and Assistant Chief of Police positions must
be pursued through the procedures provided
in the Government Employees Civil Rights
Act of 1991, 42 U.S.C. § 2000e-16a et seq. –
namely, a final order from the EEOC with
appeal to the Court of Appeals. Second,
with respect to the discrimination claim
regarding the Chief of Police position, the
Court concludes that plaintiff adequately
exhausted her administrative remedies
before the EEOC with respect to that claim.
Finally, with respect to the retaliation claim,
construing the evidence in the light most
favorable to plaintiff, a reasonable jury

Defendants filed the instant motion on
September 30, 2013. Plaintiff opposed on
November 6, 2013. Defendants replied on
November 21, 2013. The Court held oral
argument on December 11, 2013. Plaintiff
filed a sur-reply on December 18, 2013.
Defendants
submitted
supplemental
2

The Court assumes familiarity with the factual
background of this matter. The Court discusses
relevant facts infra Section III.

2

authorities on January 14, 2014. The Court
has
fully
considered
the
parties’
submissions.

treated according to the same standard as a
motion under Rule 12(b)(6). See 709 F.2d at
801–02.

II. STANDARDS OF REVIEW

In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See, e.g.,
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

A. Subject Matter Jurisdiction
To defeat a motion to dismiss brought
under Fed. R. Civ. P. 12(b)(1), “[t]he
plaintiff bears the burden of proving subject
matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005). In resolving this issue, the court
“must accept as true all material factual
allegations in the complaint, but [it is] not to
draw inferences from the complaint
favorable to plaintiffs.” J.S. ex rel. N.S. v.
Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004). Additionally, the court “may
refer to evidence outside the pleadings” to
resolve the jurisdictional issue. Makarova v.
United States, 201 F.3d 110, 113 (2d Cir.
2000) (citing Kamen v. Am. Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986)).

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Court instructed
district courts first to “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679. “While
legal conclusions can provide the framework
of a complaint, they must be supported by
factual allegations.” Id. Second, if a
complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id.

B. Failure to Exhaust
Defendants argue that plaintiff failed to
exhaust her administrative remedies before
the EEOC with respect to the discrimination
claim that relates to the Chief of Police
position. A “dismissal for failure to exhaust
administrative remedies is more properly
characterized as a dismissal for failure to
state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).” McInerney v.
Rensselaer Polytechnic Inst., 505 F.3d 135,
138 (2d Cir. 2008) (citing Fernandez v.
Chertoff, 471 F.3d 45, 58 (2d Cir. 2006)).
After the pleadings are closed, as here, a
motion to dismiss for failure to state a claim
is properly brought as a motion for judgment
on the pleadings pursuant to Rule 12(c).
Maggette v. Dalsheim, 709 F.2d 800, 801
(2d Cir. 1983) (citations omitted); see Fed.
R. Civ. P. 12(c), 12(h)(2). The motion is then

In adjudicating a Rule 12(b)(6) motion, a
court is entitled to consider: “(1) facts
alleged in the complaint and documents
3

56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356–57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part & rev’d in part on other
grounds sub nom. Lentell v. Merrill Lynch &
Co., 396 F.3d 161 (2d Cir. 2005).

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or

C. Summary Judgment
Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
4

disputes that affect its subject matter
jurisdiction at this stage.3 See id. at 501–02
(concluding that Congress made Title VII’s
employee-numerosity
requirement
an
element of a plaintiff’s claim for relief, not a
jurisdictional issue).

facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
III. DISCUSSION
A. Plaintiff’s Objection to the Motion

Second, failure to exhaust is not
jurisdictional and, thus, must be considered
under Rule 12(b)(6). See Francis v. City of
New York, 235 F.3d 763, 768 (2d Cir. 2000)
(“[A]s a general matter, the failure to
exhaust administrative remedies is a
precondition to bringing a Title VII claim in
federal court, rather than a jurisdictional
requirement.” (internal quotations and
citations omitted)); see also Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393
(1982) (“[F]iling a timely charge of
discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel,
and equitable tolling.”). Courts have found
waivers of non-jurisdictional arguments and
defenses where the issue has not been
asserted “prior to the close of trial on the
merits,” Arbaugh, 546 U.S. at 504 (holding
that defendant waived numerosity of
employees requirement under Title VII by
failing to assert the objection prior to the
close of trial on the merits), or where it is
not raised until after judgment has been
entered, Francis, 235 F.3d at 768 (holding
that exhaustion defense was waived where
defendants raised it for the first time in a

Plaintiff objects to the motion on the
grounds that defendants raised the
policymaker defense for the first time in
their reply papers in support of the motion
for reconsideration, not in their Answer.
(Opp’n at 1.) Plaintiff also argues that,
although defendants have the right to move
to dismiss for lack of subject matter
jurisdiction, whether plaintiff was a
policymaker is an issue of fact that should
be left for a jury. (Id. at 4.) Finally, plaintiff
argues that defendants waived the
administrative exhaustion defense. (Id. at
11–12.) As the Court stated during the oral
argument, the Court shall decide the motion
on the merits.
First, as set forth infra, the policymaker
defense implicates this Court’s subject
matter jurisdiction. “Issues relating to
subject matter jurisdiction may be raised at
any time, even on appeal, and even by the
court sua sponte.” Guggenheim Capital,
LLC v. Birnbaum, 722 F.3d 444, 449 (2d
Cir. 2013); accord Hughes v. Patrolmen’s
Benev. Ass’n of City of N.Y., Inc., 850 F.2d
876, 881 (2d Cir. 1988). Further, “subject
matter jurisdiction, because it involves a
court’s power to hear a case, can never be
forfeited or waived.” Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006). Therefore,
the Court can address the policymaker
defense at this juncture. Moreover, because
whether the Assistant and Deputy Chief of
Police positions are covered under Title VII
is not “an essential element of a claim” that
requires the jury to try contested facts, but a
jurisdictional issue, this Court may review
the evidence and resolve any factual

3

In any event, as discussed infra, the plaintiff’s own
evidence demonstrates that the policymaker defense
applies in the instant case to the Deputy and Assistant
Chief Positions. Thus, there are no factual disputes
that need to be resolved for the Court to decide this
issue as a matter of law because the uncontroverted
facts demonstrate that the defense applies and that the
Court does not have subject matter jurisdiction over
those claims. Accordingly, even assuming arguendo
that this issue was not jurisdictional, the Court
concludes that defendants would be entitled to
summary judgment on this issue under Rule 56.

5

post-judgment motion). By way of contrast,
the exhaustion defense has been found not
waived where it is asserted before trial, does
not require additional discovery, and is not
premised on bad faith. Belgrave v. Pena,
254 F.3d 384, 387 (2d Cir. 2001) (upholding
district court’s decision to permit
government to amend answer to state
affirmative defense of untimely exhaustion).
Here, defendants have asserted the
exhaustion defense before trial, additional
discovery is not required, and there is no
evidence that defendants are acting in bad
faith. Therefore, the Court concludes that
defendants have not waived the exhaustion
defense and construes the defense (which
has been raised, inter alia, under Rule 56) to
be a motion to amend the answer.4 See
Monahan v. New York City Dep’t of
Corrections, 214 F.3d 275, 283 (2d Cir.
2000) (“the district court has the discretion
to entertain the defense when it is raised in a
motion as one to amend the defendant’s
answer”).

Title VII expressly exempts the following
persons from the definition of “employee”:
[a]ny person elected to public office
in any state or political subdivision
of any State by the qualified voters
thereof, any person chosen by such
officer to be on such officer’s
personal staff, or an appointee on the
policy making level or an immediate
advisor with respect to the exercise
of the constitutional or legal powers
of the office.
Id. § 2000e(f). Thus, the provision excludes
four categories of workers from Title VII’s
protections: (1) elected officers; (2)
individuals chosen by such an officer to be
members of her “personal staff”; (3) such
officer’s appointees on the policymaking
level; or (4) an immediate advisor with
respect to the exercise of the powers of the
office. The exemption does not include
“employees subject to the civil service laws
of a State government, governmental agency
or political subdivision.” Id. “The question
of who is an exempt employee is a matter of
federal, not state law, although state law
may
clearly
illuminate
the
job
responsibilities and status of individual
considered under the statute.” Bland v. New
York, 263 F. Supp. 2d 526, 536 (E.D.N.Y.
2003) (citing Calderon v. Martin Co., 639
F.2d 271, 272–73 (5th Cir. 1981); EEOC v.
Reno, 758 F.2d 581, 584 (11th Cir. 1985)
(“[S]tate law is relevant insofar as it
describes the plaintiff’s position, including
his duties and the way he is hired,
supervised and fired.”)).

B. Deputy and Assistant Chief Positions
Defendants contend that the Deputy and
Assistant Chief of Police titles are
policymaking positions not covered by Title
VII, and, therefore, that this Court lacks
subject matter jurisdiction over the related
discrimination claims. For the reasons set
forth below, the Court agrees.
1. Legal Standard
Title VII prohibits discrimination against
an employee based on her gender, race,
and/or color. See 42 U.S.C. § 2000e-2(a).

The Second Circuit has addressed the
“appointee on a policy making level” prong
of the exemption. See, e.g., Butler v. N.Y.
State Dep’t of Law, 211 F.3d 739 (2d Cir.
2000) [hereinafter Butler II] (holding on
summary judgment that Deputy Bureau
Chief in Attorney General’s Office was

4

Similarly, the Court has discretion to entertain
successive dispositive motions. See Sira v. Morton,
380 F.3d 57, 68 (2d Cir. 2004). Given that the
defendant’s non-jurisdictional portions of the motion
raises new issues, including an issue based on an
intervening change in the law for retaliation claims,
the Court, in the exercise of its discretion, will
consider this second dispositive motion.

6

policymaker exempted from protection
under Title VII); Tranello v. Frey, 962 F.2d
244 (2d Cir. 1992) (holding under the Age
Discrimination
in
Employment
Act
(“ADEA”), 29 U.S.C. §§ 621 et seq., that
policymaker must be chosen by elected
official in order to fall under exemption);5
EEOC v. Vermont, 904 F.2d 794 (2d Cir.
1990) (considering under ADEA whether
appointed state judges were policymakers
under the exemption, and holding that
policymaking category was intended to
comprise only those policymakers working
closely with the appointing elected official),
overruled on other grounds by Gregory v.
Ashcroft, 501 U.S. 452 (1991). According to
the Second Circuit, an individual is a
policymaker and therefore excluded from
the protections of Title VII if she (1) is
appointed by an elected official and (2)
“would normally work closely with and be
accountable to” the official who appointed
her. Butler, 211 F.3d at 748 (quoting
Tranello, 962 F.2d at 250; Vermont, 904
F.2d at 800). The court must look to the
general attributes of the position, not the
actual performance of the job, to determine
whether the employee could be required to
work closely with the appointing official. Id.
at 748–49 (“We do not find merit in Butler’s
argument that she herself did not work
closely with the AG, but rather focus on the
requirements of the Deputy Bureau Chief
position. The resolution of the issue turns on
whether it was part of the job of a Deputy
Bureau Chief to work closely with the
AG.”); see Kelley v. City of Albuquerque,
542 F.3d 802, 810 (10th Cir. 2008) (“We
focus principally on the responsibilities and

powers inherent in the position, rather than
on the actions of specific individuals,
including plaintiffs, who hold or have held
the position. . . . Accordingly, the fact that a
particular occupant of a position has
engaged in certain conduct that suggests that
the position is covered by an exemption
does not necessarily mean that the position
actually is one that warrants exemption
coverage.” (citations omitted)); Bland, 263
F. Supp. 2d at 544 (noting that court may
take notice of applicable statutes and
administrative materials under which
plaintiff was appointed and performed her
job to determine whether she fell within
personal staff exemption).
If an individual falls within the
exemptions to Title VII, the district court
lacks subject matter jurisdiction to
adjudicate her claims. Butler v. N.Y. State
Dep’t of Law, 998 F. Supp. 336, 344
(S.D.N.Y. 1998) [hereinafter Butler I] (“if
Ms. Butler is found to be a policymaker
under these statutes [i.e., Title VII and the
ADEA], this Court would be without subject
matter jurisdiction to adjudicate her
claims”), aff’d, 211 F.3d 739 (2d Cir. 2000);
Fischer v. New York State Dep’t of Law, No.
12 Civ. 421 (ALC), 2014 U.S. Dist. LEXIS
94022, at *4 (S.D.N.Y. June 20, 2014)
(addressing a policymaker defense in the
context of a motion to dismiss for lack of
subject matter jurisdiction). Instead, those
persons who are exempt from the
protections of Title VII, including state
employees, are protected under GERA,
codified at 42 U.S.C. §§ 2000e-16 et seq.
Butler I, 998 F. Supp. at 344; see 42 U.S.C.
§ 2000e-16c (providing that rights,
protections, and remedies provided pursuant
to § 2000e-16b apply with respect to any
individual chosen or appointed by an elected
official of any state or political subdivision
of any state to be a member of the elected
official’s personal staff, to serve the elected
official on a policymaking level, or to serve

5
Because Title VII and the ADEA use the same
definition of employee, cases discussing who is an
“appointee on the policymaking level” under both
statutes apply here. See, e.g., Costenbader-Jacobson
v. Pennsylvania, 227 F. Supp. 2d 304, 309 n.2 (M.D.
Pa. 2002) (citing 29 U.S.C. § 630(f) (ADEA
definition of employee)).

7

the elected official as an immediate advisor
with respect to the exercise of the
constitutional or legal powers of the office).
GERA requires a plaintiff to obtain a final
determination by the EEOC appealable only
to the United States Courts of Appeals. 42
U.S.C. § 2000e-16b(b)–(c); see SpannWilder v. City of N. Charleston, C.A. No.
2:08-0156-MBS, 2010 WL 3222235, at *7–
8 (D.S.C. Aug. 13, 2010).

mean that he was responsible for making
these appointments.” (Sur-reply, at 2.)
a. Appointment by an Elected Official
The first issue is whether plaintiff was
appointed by an elected official. The “mere
fact” that an elected official must approve or
consent to the appointment of an employee
by another appointed official does not mean
that that employee is exempt from the
protections of Title VII. Tranello, 962 F.2d
at 250; see Crumpacker v. Kan. Dep’t of
Human Res., 474 F.3d 747, 753–55 (10th
Cir. 2007). Instead, to determine whether a
person is appointed by an elected official
under Title VII, the court must (1) consider
and decide the meaning of the applicable
laws and regulations governing the position;
and (2) if the law is indeterminate and does
not unambiguously and unqualifiedly vest
appointment power in a specific elected or
non-elected official, look to the underlying
facts surrounding the appointment to help
answer the question. Crumpacker, 474 F.3d
at 753–54.

2. Application6
Defendants argue that the Deputy and
Assistant Chief of Police titles are exempt
from Title VII because (1) the positions are
filled by Village Board appointment, and the
premise of plaintiff’s complaint is that
Hardwick wanted to replace current
command staff with his people; (2) plaintiff,
as Deputy Chief, was required to work
closely with the appointing elected officials;
and
(3)
plaintiff
had
supervisory
responsibilities over the Police Department.
Plaintiff counters that (1) she was promoted
to Deputy Chief by then-Chief Michael
Woodward (“Woodward”), while thenMayor Glacken (“Glacken”) simply
approved the promotion; (2) plaintiff did not
work closely with the elected officials; and
(3) these assertions do not conflict with her
theory of the case, because “Hardwick took
any and every step to involve himself in the
personnel decisions throughout the village,”
and “[t]hat Hardwick involved himself in
appointing the current deputy chief and
recommending an assistant chief does not

In Tranello, the Second Circuit
considered whether the plaintiff, a deputy
county attorney appointed by the county
attorney, who himself was appointed by the
elected county executive, fell within
ADEA’s policymaker exemption. See 962
F.2d at 245. The court held that the plaintiff
was not appointed by an elected official and,
therefore, that he did not fall within the
policymaker exemption. Id. at 249. The
court rejected the “strained” argument that
plaintiff was appointed by an elected official
because the county attorney could only
appoint deputy county attorneys with the
county executive’s approval. Id. at 250
(“The mere fact that the County Executive
must approve the County Attorney’s
appointee does not convince us that the
appointee would be a ‘policymaker working
closely with the elected official,’ and does

6

At a pre-motion conference in a related case, Zagaja
v. Village of Freeport, et al., 15-CV-1017 (JFB)
(SIL), counsel for defendants suggested that
additional evidence regarding this issue would be
submitted in a motion to dismiss in that case, and that
the Court may wish to consider it. However, for the
reasons set forth infra, the Court finds that the
policymaking exemption applies based upon the
record in this case and, thus, any request by
defendants that the Court consider new evidence is
moot.

8

“where the noted statutory ambiguity would
allow a record of active involvement by the
Governor to render an appointment
gubernatorial.” Id. at 753–55; see also
Kelley, 542 F.3d at 811 (concluding that
assistant city attorney was not exempt from
Title VII because, inter alia, ordinances
vested ultimate power to appoint assistant
attorneys in appointed chief administrative
officer, and testimony revealed that mayor
had minimal involvement with hiring
assistant city attorneys and had no power to
terminate them).

not compel the conclusion that the Deputy
County Attorney is an appointee of the
County Executive.”). The Second Circuit,
however, has not foreclosed the possibility
that an elected official who consents to, or
rejects, the appointment of an employee
recommended by an appointed official could
be considered the actual appointing official
under certain circumstances.
Similarly, in Crumpacker, the Tenth
Circuit considered whether the plaintiff,
formerly the Director of Employment and
Training within the Kansas Department of
Human Resources (“KDHR”), fell under
Title VII’s policymaker exemption. Pursuant
to a state statute, the appointed KDHR
Secretary, with the “consent” of the elected
Governor of Kansas, appointed plaintiff to
that position. 474 F.3d at 750. First, the
court emphasized that, under its precedent,
“an elected official’s participation in the
selection process alone would not
demonstrate
compliance
with
the
appointment requirement, especially where
the employee did not work with the elected
official in the ‘intimate and sensitive
association
contemplated
by
[the
legislature].’” Id. at 752 (quoting Anderson
v. City of Albuquerque, 690 F.2d 796, 800
(10th Cir. 1982)). Second, the court rejected
the argument that the consent requirement
constituted an appointment, reasoning that
(1) the plain language of the statute vested
the appointment power with the KDHR
Secretary, and any participation by the
Governor in the plaintiff’s appointment did
“not subsume the Secretary’s ultimate
appointment responsibility in the hiring
process”; (2) to the extent the “consent”
requirement created any ambiguity, the
record indicated that the KDHR Secretary,
not the Governor, interviewed and appointed
the plaintiff, made the decision to hire and
fire the plaintiff, controlled her day-to-day
responsibilities,
and
monitored
her
performance; and (3) this was not a case

In Pahmeier v. Marion Community
Schools, the district court, citing Tranello,
concluded that “an appointee on the
policymaking level” under the ADEA
“corresponds to an elected official who
designates such person to serve at the
elected official’s will.” No. 1:04-CV-365TS, 2006 WL 1195213, at *3 (N.D. Ind.
May 1, 2006). The court concluded that the
plaintiff, a former school principal, was
protected by the ADEA because (1) the
elected school boards did not have the
statutory authority to appoint principals to
serve at their pleasure and had to give
clearly specified notice prior to any
principal’s discharge, a situation “radically
different from the protections given to
political appointees . . . who can be removed
by subsequent decrees [by elected officials]
if the political tide changes or voters’
patience begins to wear out”; (2) plaintiff’s
rights under her contract indicated that she
had due process protections not available to
political appointees; and (3) in practice in
Indiana public school systems, principals are
appointed by and accountable to appointed
superintendents, whose appointments are
ratified by the elected board. Id. at *3–4.
Here, pursuant to Section 4-400 of the
Village Law, mayors are responsible for
“appoint[ing] all department and non-elected
officers and employees subject to the
9

approval of the board of trustees, however,
the mayor may delegate the power to
appoint certain employees to other village
officers or employees.” N.Y. Vill. Law § 4400(1)(c)(i). Mayors also are responsible for
supervising the conduct of the police. Id.
§ 4-400(1)(e). The Rules and Regulations of
the Freeport Police Department provide that
the Chief of Police is responsible for
directing department personnel activities and
“for the selection of competent personnel for
employment with the Department and [for
maintaining] adequate staffing to properly
perform the police function.” (Freeport
Police Department Rules and Regulations §§
200.10(3), 200.20(4), Sur-reply Ex. 2.)
Further, it is undisputed that then-Mayor
Glacken appointed plaintiff to the Deputy
Chief
position
based
upon
the
recommendation of Woodward and former
Assistant Chief Alfred Gros (“Gros”).7

themselves.
Second,
although
the
regulations make the Chief of Police
responsible for the selection of competent
personnel in the Department, the Village
Law (by its language) also appears to
continue to authorize the Mayor to
participate (if he wishes) in that selection
process through his appointment power. In
other words, there is nothing in the Rules
and Regulations, especially in light of the
Village Law, that precludes the Mayor from
having a substantive and active role in the
appointment process (even if the Police
Chief is responsible for making a selection
and recommendation). In short, the Court is
not persuaded that the Village Law and
Rules and Regulations unambiguously
establish that the appointed positions at issue
are protected by Title VII, and not subject to
the policymaker exemption. Instead, as in
Crumpacker, the Court concludes that the
Village Law, combined with the Rules and
Regulations, create an ambiguity on this
question. Thus, in order to decide this issue,
the Court looks to the underlying facts
surrounding the appointments at issue here
and, as set forth below, the uncontroverted
evidence demonstrates that an elected
official (Mayor Hardwick) did not merely
“approve” the appointment of individuals
for the Deputy and Assistant Chief positions
at issue, but rather played an active role in
the selection process.

The law and regulations in this case are
distinguishable from Tranello. In Tranello,
the appointment power was vested in the
non-elected county attorney, with approval
of the elected county executive. Here, the
appointment power is actually vested in the
elected official (i.e., the Mayor). Although
the Rules and Regulations of the Police
Department create some ambiguity in the
precise role of the Mayor in the selection
process, the Court disagrees with plaintiff’s
contention that the Rules and Regulations
unambiguously transferred the appointment
power to the Chief of Police. First, there is
no formal, explicit delegation of the
appointment power by the Mayor to another
official in the Village Law, or even in the
language of the Rules and Regulations

As an initial matter, although plaintiff
contests defendants’ ability to satisfy this
requirement, defendants correctly note that
plaintiff’s entire theory of the case rests
upon their assertion that the elected Mayor
himself, acting in a discriminatory manner,
was actively involved in the selection
process for these two positions.
For
example, the Amended Complaint alleges:

7
Former Trustee Donald K. Miller also stated,
“When the Chief came to recommend Debbie into the
Deputy Chief spot [in 2007] there was no discussion
on the part of the board of trustees of not giving her
the promotion as she was so clearly competent and
qualified.” (Affidavit of Donald K. Miller ¶ 17,
Finkel Aff. Ex. A.)

In October of 2009, Zagaja was
informed that in March of 2010 she
would be demoted, that she would no
10

Moreover, the Court has summarized in
its prior decisions the evidence in the record
which supports plaintiff’s allegations that
Hardwick had more than pro forma
involvement in the appointment, demotion,
and termination process. See, e.g., June 3
Memorandum and Order, 2013 WL
2405440, at *5–8, 11 (discussing
Hardwick’s involvement in the personnel
decisions); November 20 Memorandum and
Order, 2012 WL 5989657, at *16 (reasoning
that evidence of discrimination included (1)
Colton’s statement that Hardwick wanted to
replace the then current command staff with
“his people”; (2) Hardwick’s statements
regarding his desire to have more minorities
advancing through the ranks; (3) the
promotion of Bermudez, a Hispanic male, to
the Deputy Chief position even though he
was less qualified and experienced than
plaintiff; and (4) Hardwick’s attempt to
place Leftenant, a Black female, in the
command staff even though Leftenant was
unqualified). Hardwick’s decisions are the
subject of this lawsuit. Plaintiff claims that,
“[u]pon his election, Defendant Hardwick
immediately began revamping the racial
makeup of the Village of Freeport by
systematically terminating and demoting
qualified, experienced white supervisors and
employees who he replaced with unqualified
and less experienced Black and Hispanic
employees.”
(Pl.
Rule
56.1
Counterstatement ¶ 57; Finkel Reply Aff.
Ex. R.) Hardwick also allegedly “engaged in
a pattern of consistently terminating,
demoting, and refusing to promote and hire
White employees in favor of Black and
Hispanic employees.” (Id. ¶ 59.) Further,
although plaintiff testified that Glacken did
not interview her for promotions,8 mayoral

longer be Deputy Chief. The Village
attorney told Deputy Chief Zagaja
that “right, wrong or indifferent,” the
Mayor would be replacing key
leadership posts with “his people.”
Upon information and belief, “his
people” excluded White employees
from most supervisory positions, and
women and whites from all
command staff positions within the
police department.
(Amended Complaint, at ¶ 22 (emphasis
added); see also id. at ¶ 64 (alleging that
“because of her gender and race she was
dismissed out of hand and never considered
by
Hardwick”)
(emphasis
added)).
Similarly, in her Counter 56.1 Statement,
plaintiff states:
Upon his election, Defendant
Hardwick
immediately
began
revamping the racial makeup of the
Village of Freeport by systematically
terminating and demoting qualified,
experienced White supervisors and
employees who he replaced with
unqualified and less experienced
Black and Hispanic employees.
(Plaintiff’s Counter 56.1 Statement, ¶ 57
(citation omitted) (emphasis added)).
Plaintiff further asserts:
Among
the
many
personnel
decisions Defendant Hardwick made,
he changed the command staff
structure including the Chief of
Police position, Assistant Chief
position and Deputy Chief position.
(Id. ¶ 42 (citation omitted) (emphasis
added)).
Thus, the entire theory of
plaintiff’s lawsuit is that Mayor Hardwick,
in fact, was the driving force behind the
appointments for the Assistant Chief and
Deputy Chief positions.

8
Comparatively, when Hardwick was elected, he
interviewed plaintiff, and they spoke for over two
hours about topics such as manpower, hiring, special
details, warrant sweeps, summons productivity, and
procedures already in place. (Pl. Rule 56.1
Counterstatement ¶ 308, Finkel Reply Aff. Ex. Q.)

11

been appointed Assistant Attorney General
(“AAG”) by the Attorney General of New
York, an elected official, and promoted to
Section Chief and then Deputy Bureau
Chief, was an “employee” entitled to sue
under Title VII. The court began by
analyzing the statutory language and
legislative history and noting that Congress
intended that the policymaking level
exemption “be construed narrowly.” Id. at
747 (citation omitted). It held that the
plaintiff was a policymaker under the
exemption because (1) it was undisputed
that, as Deputy Bureau Chief, she was
accountable to the Attorney General; (2)
plaintiff conceded that as an AAG she could
have been called upon to work closely with
the Attorney General, even if she did not in
fact work closely with the Attorney General;
and (3) as Deputy Bureau Chief, plaintiff’s
“supervisory authority placed her at a higher
level of responsibility than most other
AAGs.” Id. at 748–49. The court did not
decide whether an AAG who is not a Deputy
Bureau Chief is an appointee on the
policymaking level. Id. at 749.

involvement in the appointment process in
Freeport, beyond that in Tranello and
Crumpacker, is not novel. According to
Woodward, the Deputy and Assistant Chief
positions were created by the Board of
Trustees because Glacken wanted a certain
individual in the “second in command
position.”
(Deposition
of
Michael
Woodward (“Woodward Dep.”) at 17:13–
25, Finkel Aff. Ex. F.)
In sum, the uncontroverted evidence
establishes that Hardwick undertook an
active role in the appointment process, and
there is no basis to conclude that such
involvement, in and of itself, was contrary to
the Village of Freeport’s laws and
regulations. The fact is that, even though
Hardwick was not responsible for
recommending the Deputy and Assistant
Chiefs of Police in the first instance, elected
officials in the Village of Freeport had the
de jure and de facto authority to influence
the hiring, promotion, and demotion process
for the Police Department’s command staff
positions beyond the passive approval in
Tranello and Crumpacker. Therefore, the
Court concludes that the first prong of the
policymaker exemption test is satisfied.

Here, pursuant to the Rules and
Regulations, the Deputy Chief, as
commanding officer of the patrol division, is
responsible for, inter alia, directing,
coordinating, and controlling uniform police
patrol services; assuming the responsibilities
of the executive officer (the Assistant Chief)
upon her absence; observing and evaluating
the training and performance of all
subordinate personnel; and supervising
administration of discipline for uniformed
members of the Police Department. (Rules
and Regulations § 204.00 et seq.) The
Assistant Chief must, inter alia, assume the
command functions of the Chief of Police in
her absence; supervise the performance of
administrative and staff functions within the
command; evaluate planning, training,
personnel functions and needs of the
command; oversee operations of the

b. Attributes of the Position
The second issue is whether plaintiff, as
Deputy and Assistant Chief, “could have
been called upon to work closely with” the
appointing elected official, even if she did
not in fact work closely with that official.
Butler II, 211 F.3d at 749. Plaintiff argues
that only the Chief was responsible for
working closely with the Mayor and for
policy development. The Court disagrees.
The Rules and Regulations, and plaintiff’s
evidence regarding her duties as Deputy and
Assistant Chief, establish that the positions
satisfy the Butler II standard.
In Butler II, the Second Circuit
addressed whether the plaintiff, who had
12

Okla., No. CIV-12-0189-HE, 2013 WL
1349038, at *2–3 (W.D. Okla. Apr. 2, 2013)
(recognizing that Supreme Court precedent
casts doubt on whether employee must
actually “formulate policy” to fall within
exception; reasoning that city manager
position at issue involved “considerable
executive authority and discretion in running
the city,” was not “limited only to
administrative duties,” and required “the
exercise of discretion concerning issues of
public importance”; and distinguishing the
position at issue from the less discretionary
and authoritative position addressed by the
Tenth Circuit in Anderson (quoting Gregory,
501 U.S. at 466–67)); Deneen v. City of
Markham, No. 91 C 5399, 1993 WL
181885, at *1–5 (N.D. Ill. 1993) (in case
where plaintiff alleged termination as deputy
fire chief was due to race discrimination,
concluding that deputy fire chief position
was covered under Title VII because job
description, local ordinance, and plaintiff’s
affidavit indicated absence of any significant
policymaking role or accountability to
mayor, rather than to fire chief, and rejecting
argument that possibility of filling in for
absent adviser or policymaker is sufficient to
warrant exempt status);9 Bishopp v. Dist. of
Columbia, No. 83-0417, 1984 WL 48909, at
*1–2 (D.D.C. Mar. 16, 1984) (reasoning that
positions at issue were not exempt from
Title VII because there was no evidence that
the function of these positions “should be
considered the ‘highest policy making’ or
that any advice [the plaintiffs] may provide
to the mayor concerns the constitutional or
legal powers of the mayor’s office”).

Detective
Division;
and
oversee
departmental legal affairs. (Id. § 202.00 et
seq.) The Chief of Police, meanwhile, is
responsible for directing all personnel
activities; issuing written and/or oral
directives to members of the Police
Department for the performance of duties
and departmental operations; determining
the areas and level of training for members
of the Department; working under the
general direction of the Mayor and Board of
Police Commissioners; overseeing major
investigations; selecting personnel for
employment; consulting with the Mayor and
Village Board regarding major policy
decisions; and representing the Department
in its dealings with other agencies and
maintain personal contact with the public.
(Id. §§ 200.00 et seq.)
Contrary to plaintiff’s argument, the
absence of any specific provision
referencing her ability to make policy or
work with the Mayor of Freeport does not
compel the conclusion that she is not a
policymaker. The Butler II standard is not so
restrictive, and the regulations and plaintiff’s
own testimony and evidence specifically
contemplate that the Deputy and Assistant
Chiefs have supervisory roles and engage in
traditional supervisory and policymaking
activities. In Butler, the plaintiff (as Deputy
Bureau Chief and in addition to the general
responsibilities of an AAG) helped
supervise over eighty attorneys, advised
attorneys on how to proceed with litigation,
reviewed and edited court papers, assigned
new cases, interviewed candidates for AAG,
and was consulted regarding promotion of
personnel. 211 F.3d at 742. The Second
Circuit did not consider whether Butler, as
Deputy Bureau Chief, had the authority to
“make policy.” Its decision turned on her
supervisory authority. See id. at 749. Thus,
Butler II endorses a broader understanding
of the policymaker exemption than other
circuits. See, e.g., Brown v. City of Hobart,

9

In Deneen, the plaintiff claimed that his
responsibilities as deputy chief were only “training,
reporting fire incidents, handling the accounting of
the part time payroll and responding to fire calls,”
rather than the broader requirements of the local
ordinance. 1993 WL 181885, at *1. The court did not
decide whether the job description and the local
ordinance alone demonstrated that the deputy chief
was not accountable to the mayor. See id. at *4.

13

interactions. To that end, command staff met
with the Mayor’s Office “on a regular basis
to discuss various situations that would
occur, including crimes, village events, and
all other relevant situations to the daily
operations of the village government.”
(Affidavit of John J. Maguire (“Maguire
Aff.”) ¶ 7, Finkel Ex. C.) Plaintiff also
admitted to the EEOC that the Mayor was
her supervisor. (See EEOC Charge, Finkel
Aff. Ex. I, at 3 (“Ms. Zagaja has been passed
over for promotions, mistreated, demoted
and otherwise denied equal and fair
treatment by her male, black supervisor, the
Mayor of Freeport.”). The Court cannot
ignore that concession.

As with the Deputy Bureau Chief
position in Butler, the supervisory authority
accorded to Deputy and Assistant Chiefs of
Police by the Rules and Regulations places
them at a higher level of responsibility than
other officers, such as lieutenants and
sergeants. Woodward testified that the
Assistant and Deputy Chiefs “contribute to
the development of policies, procedures, and
training. They also assist the Chief [me] in
the day-to-day operations of the police
department.” (Woodward Dep. at 16:12–
17:1.) Plaintiff described the Deputy Chief
responsibilities as including “[e]verything
from scheduling training . . . , ensuring that
all essential positions within the department
are manned . . . , overseeing the productivity
of the Lieutenants, the Sergeants, hold them
accountable for the performance of their
officers who work under their command . . .
, that we worked together in putting together
in formulating the operating budget for the
Freeport Police Department, emergency
management issues, incident command
duties and responsibilities and planning.”
(Pl. Rule 56.1 Counterstatement ¶ 26; Finkel
Aff. D.) She also asserted that “[t]he
ultimate benefit of being a part of the
command staff was the ability to take part in
policy decisions geared toward moving the
Department forward with the goal of
benefitting the membership as well as the
Village.” (Declaration of Debbie Zagaja
(“Zagaja Decl.”) ¶ 61; Finkel Aff. Ex. E.)
Moreover, while she was Acting Chief of
Police in accordance with the Rules and
Regulations (see § 202.10), plaintiff “was
performing the functions of the entire
command staff and completing all command
staff responsibilities and duties from
December 2009 through the end of January
2010.” (Pl. Rule 56.1 Counterstatement
¶ 34; Finkel Aff. Ex. T.) Finally, even if
plaintiff never met with the Mayor while she
was Deputy or Assistant Chief, the positions
at issue contemplated the possibility of close

Therefore, the Court concludes that
plaintiff, while a Deputy Chief of Police and
an Assistant Chief of Police, was a
policymaker who could, as part of her
professional duties and supervisory role, be
called upon to work closely with the
appointing elected official—the Mayor.
Accordingly, the Court dismisses plaintiff’s
discrimination claims with respect to the
Deputy and Assistant Chief of Police
positions for lack of subject matter
jurisdiction. Butler I, 998 F. Supp. at 344.
C. Sufficiency of the EEOC Charge
Plaintiff, assisted by counsel, filed her
EEOC charge on May 5, 2010, alleging:
1. Debbie Zagaja (“Ms. Zagaja”) is
a white female. She files this charge
in relation to the gender and race
discrimination she has been and
continues to be subjected to in her
employment with the Village of
Freeport. Further, she has been
retaliated against for complaining
about the disparate treatment she has
received from her employer.
2. Ms. Zagaja has been passed over
for promotions, mistreated, demoted
14

filing period is “analogous to [ ] statute[s] of
limitations,” Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996),
and, as such, “a failure to timely file a
charge acts as a bar to a plaintiff’s action.”
Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev.,
No. 00 Civ. 6307 (KMK), 2007 WL 259937,
at *6 (S.D.N.Y. Jan. 29, 2007); see also
McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 214 (2d Cir. 2006). This period
begins to run for each discrete
discriminatory act when each such act
occurs. O’Grady, 556 F. Supp. 2d at 199.

and otherwise denied equal and fair
treatment by her male, black
supervisor, the Mayor of Freeport.
3. Others have been promoted
ahead of her, given favorable
treatment and given preference
because they are not female and/or
white.
4. Because of this discrimination
and retaliation Ms. Zagaja has
suffered damages in pay, status, and
to her psyche.

In addition, “‘claims that were not
asserted before the EEOC [or an appropriate
State or local agency] may be pursued in a
subsequent federal court action if they are
reasonably related to those that were filed
with the agency.’” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 177 (2d
Cir. 2005) (quoting Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686
(2d Cir. 2001) (per curiam)). “Reasonably
related conduct is that ‘which would fall
within the scope of the EEOC investigation
which can reasonably be expected to grow
out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d
345, 358 (2d Cir. 2001)); see also
Mathirampuzha v. Potter, 548 F.3d 70, 77
(2d Cir. 2008) (stating that claim is
reasonably related where “administrative
complaint can be fairly read to encompass
the claims ultimately pleaded in a civil
action or to have placed the employer on
notice that such claims might be raised”). In
determining whether a claim is “reasonably
related” to the EEOC charge, “‘the focus
should be on the factual allegations made in
the [EEOC] charge itself’” and on whether
those allegations “gave the [EEOC]
‘adequate notice to investigate’” the claims
asserted in court. Williams v. N.Y.C. Hous.
Auth., 458 F.3d 67, 70 (2d Cir. 2006)
(quoting Deravin v. Kerik, 335 F.3d 195,
201–02 (2d Cir. 2003)). Another type of

(EEOC Charge, at 3.) Plaintiff stated that the
earliest date of discrimination was March 8,
2010. (Id. at 2.) On May 25, 2010, the
EEOC dismissed the claim because plaintiff
“provided no information with which to
conduct an investigation.” (Id. at 5.)
Defendants argue that the Chief of
Police-related discrimination claim must be
dismissed because the EEOC charge was
impermissibly vague and the denied
promotion to Chief of Police, which
occurred months after the EEOC dismissed
the charge, is not reasonably related to
plaintiff’s allegations. For the following
reasons, the Court disagrees.
1. Legal Standard
To bring a Title VII discrimination claim
in federal court, a plaintiff must first exhaust
her administrative remedies by filing an
administrative
charge
alleging
discrimination within 300 days of the
alleged discriminatory conduct. O’Grady v.
Middle Country Sch. Dist. No. 11, 556 F.
Supp. 2d 196, 199 (E.D.N.Y. 2008) (citing
Ruhling v. Tribune Co., No. 04 Civ. 2430
(ARL), 2007 WL 28283, at *8 (E.D.N.Y.
Jan. 3, 2007) (“Under Title VII and the
ADEA, a plaintiff must file an
administrative charge . . . within 300 days
after a claim accrues.”)). This statutory
15

complaint regarding unjust discipline,
because both allegations concerned the same
method of discrimination); Barkley v. City of
New York, No. 12-CV-2159 (JG), 2014 U.S.
Dist. LEXIS 182, at *42 (E.D.N.Y. Jan. 2,
2014) (holding that the third exception in
Butts did not apply, because the method of
discrimination alleged in the plaintiff’s
EEOC charges was not the same method of
discrimination alleged in his Title VII claims
in his lawsuit); Dressler v. New York City
Dept. of Educ., No. 10 Civ. 3769 (JPO),
2012 U.S. Dist LEXIS 44249, at *19 n.3
(S.D.N.Y. Mar. 29, 2012) (claim regarding
unjust performance review was reasonably
related to earlier EEOC complaint regarding
unjust performance review).

“reasonably related” claim is one alleging
“further incidents of discrimination carried
out in precisely the same manner alleged in
the EEOC charge.” Butts v. N.Y.C. Dep’t of
Hous. Pres. & Dev., 990 F.2d 1397, 1402–
03 (2d Cir. 1993), superseded by statute on
other grounds, Civil Rights Act of 1991,
Pub. L. No. 102-166; Almendral v. N.Y.
State Office of Mental Health, 743 F.2d 963,
966–67 (2d Cir. 1984) (holding that district
court erred in refusing to consider conduct
postdating plaintiff’s EEOC complaint
where that conduct was “essentially the
same as the earlier . . . conduct contained in
the . . . complaint”).
2. Application
As an initial matter, the fact that plaintiff
was denied a promotion to Chief of Police
after the EEOC charge was dismissed is not
in itself grounds to dismiss the
discrimination claim for failure to file a new
EEOC charge. Assuming the charge
adequately set forth allegations regarding a
discriminatory demotion and/or failure to
promote to the Deputy and Assistant Chief
positions, then the Chief of Police claim is
“reasonably related” because it is a “further
incident[] of discrimination carried out in
precisely the same manner alleged in the
EEOC charge.” Butts, 990 F.2d at 1402–03.

Defendants also argue that the Chief of
Police discrimination claim must be
dismissed because the EEOC charge was
impermissibly vague. “Specific factual
allegations,” rather than vague, generalized
statements, “must be made in order for the
EEOC to be able to investigate them
reasonably.” Cooper v. Xerox Corp., 994 F.
Supp. 429, 432 (W.D.N.Y. 1998). In Butts,
the Second Circuit held that allegations that
the plaintiff had “consistently been the target
of discriminatory practices and treatment”
from “October of 1987 to [the] present,” and
“denied promotional opportunities and
consideration based on my race and sex,”
were impermissibly vague and could not
“serve as predicates for allegations in the
complaint.” 990 F.2d at 1403 (alteration in
original). The court explained, “Were we to
permit such vague, general allegations, quite
incapable of inviting a meaningful EEOC
response, to define the scope of the EEOC
investigation
and
thereby
predicate
subsequent claims in the federal lawsuit,
such allegations would become routine
boilerplate and Title VII’s investigatory and
mediation goals would be defeated.” Id. The
Court, however, accepted the claims related
to plaintiff’s allegation in the EEOC charge

The Court’s decision is consistent with
authority in this Circuit. See, e.g.,
Almendral, 743 F.2d 968 (“[D]efendants’
alleged acts are essentially the same as the
earlier allegedly wrongful conduct contained
in the EEOC complaint: namely, alleged
manipulation of the civil service rules for
discriminatory reasons in order to appoint
someone other than Almendral.”); Rommage
v. MTA Long Island Rail Rd., No. 08-CV836 (DLI), 2010 U.S. Dist. LEXIS 104882,
at *18 (E.D.N.Y. Sept. 30, 2010) (plaintiff’s
claim of termination due to unjust discipline
was reasonably related to earlier EEOC
16

the actual date of the demotion and the
general
assertion
of
the
alleged
discriminatory act, these allegations
regarding more closely resemble the one
claim in Butts, relating to department
reorganization meetings, that the Second
Circuit found to be sufficient to satisfy the
exhaustion requirement. Moreover, as noted
supra, the additional claims for denial of
promotions (including the Chief position)
were reasonably related because they
allegedly were further incidents of
discrimination carried out in precisely the
same manner, and grew out of the demotion
on March 8, 2010.

that “[a]fter October 1987 . . . [the plaintiff’s
supervisor] held department reorganization
meetings without informing me of the
meetings or results,” even though the charge
was vague as to the exact dates of the
incidents. Id.
Here, the Court concludes that the
allegations in plaintiff’s EEOC charge,
although brief, are able to pass muster under
Butts. Specifically, in the instant case,
plaintiff set forth (1) her status as a white
female, employment by the Village of
Freeport, and general bases for her
complaint; (2) the fact that she had been
“passed over for promotions, mistreated,
demoted, and otherwise denied equal and
fair treatment” by a specific individual—her
male, black supervisor, the Mayor of
Freeport (Hardwick); and (3) that the events
at issue began occurring on March 8, 2010.
(EEOC Charge, at 2–3.) Thus, plaintiff’s
charge significantly provided two more
details than the allegations that were found
insufficient for certain claims in Butts –
namely, plaintiff provided a specific date
when the discriminatory practices began
(March 8, 2010) and also attributed the
conduct to a specific individual – Mayor
Hardwick. A cursory investigation by the
EEOC would have revealed that plaintiff
was demoted from Deputy Chief to
Lieutenant on March 8, 2010, which would
have been sufficient information for the
EEOC to investigate that claim. The fact
that the plaintiff provided the specific date
of the demotion in one section of the charge,
but then referred to a number of
discriminatory acts in another section in a
generalized manner (“passed over for
promotions, mistreated, demoted, and
otherwise denied equal and fair treatment”
by Mayor Hardwick) did not prevent the
EEOC from conducting a meaningful
investigation of the March 8, 2010 demotion
by the Mayor, allegedly based on race and
gender. In this Court’s view, by providing

Accordingly, the Court denies the
motion to dismiss for failure to exhaust on
this basis. Therefore, plaintiff can maintain
her Chief of Police-related discrimination
claim, a cause of action “reasonably related”
to the adequate allegations in the EEOC
charge.
D. The Retaliation Claim and Nassar
When the Court denied summary
judgment to defendants on plaintiff’s
retaliation claim, the Court applied the thencontrolling “mixed motive” analysis on the
issue of pretext. See June 3 Memorandum
and Order, 2013 WL 2405440, at *13
(“[T]here is sufficient evidence in the record
to create a disputed issue of fact as to
whether a retaliatory motive was involved in
defendants’ decision. . . . Given Bermudez’s
relationship with Hardwick, and the other
factors surrounding the employment
decision, there is circumstantial evidence
that defendants’ failure to actually promote
plaintiff to the command staff may have
been motivated, at least in part, by
retaliatory animus.”). Defendants argue for
reconsideration in light of the Supreme
Court’s holding in Nassar. For the reasons
set forth below, the Court concludes that a
reasonable jury could find that plaintiff’s
17

2. Application

protected activity was the “but for” cause of,
among other things, defendants’ failure to
promote plaintiff.

Defendants note that plaintiff alleges in
the Amended Complaint that Hardwick
engaged
in
discriminatory
conduct
immediately upon his election to office and
that she was “dismissed out of hand and
never considered by Hardwick” because she
was a white female. (Amended Complaint
¶¶ 15, 29, 64.) Thus, defendants argue that,
if plaintiff alleges that Hardwick would
never have promoted her because of her
gender or race, her protected activity could
not have been the “but for” cause of her not
receiving a promotion. However, the Court
does not believe that those allegations are
dispositive of the “but for” issue for several
reasons.
First, it appears that those
allegations in the Amended Complaint are
focused upon Hardwick’s mindset when he
became Mayor and sought to fill the Chief
position. See, e.g., Id. at ¶ 29 (“The Deputy
Mayor informed Zagaja that he would pick
her for the Chief’s position if he had the
opportunity. However, it was clear that the
Mayor would never even consider a White
Female for the position.”).
Plaintiff’s
retaliation claim is not focused on the
Chief’s
position,
but
rather
the
unwillingness of Bermudez and Hardwick to
consider her for a command staff position
once she filed the lawsuit. Thus, her
allegations regarding his mindset upon
taking office, and filling the Chief position,
are not preclusive as to his mindset later on,
when plaintiff claims that she was not
considered for command staff positions
because of retaliation. In other words, there
is nothing necessarily inconsistent with
proving that Hardwick wanted to revamp the
command staff (including Chief of Police)
based upon race and/or gender and thus did
not consider plaintiff for those positions in
2010, and also that she was later denied a
command staff position because she had
filed the lawsuit. Second, in addition to the
denial of a command staff position, plaintiff

1. Legal Standard
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a). The Court evaluates a
Title VII retaliation claim under the threestep, burden-shifting framework established
by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). As relevant here, if the
plaintiff is able to establish a prima facie
case of retaliation, the burden then shifts to
the defendant to articulate a legitimate, nonretaliatory reason for the employment
action. See Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 720 (2d Cir.
2010) (stating that where the plaintiff
succeeds in establishing a prima facie case,
“then a presumption of retaliation arises and
the employer must articulate a legitimate,
non-retaliatory reason for the action that the
plaintiff alleges was retaliatory”). If the
employer carries that burden, the burden
shifts back to the plaintiff to demonstrate by
competent evidence that the reasons
proffered by the defendant were pretext for
retaliatory animus based upon the protected
Title VII activity. See Sista v. CDC Ixis N.
Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
Specifically, the plaintiff must establish that
“but for the protected activity, [she] would
not have been terminated.” Moore v.
Kingsbrook Jewish Med. Ctr., No. 11–CV–
3625 (MKB), 2013 WL 3968748, at *14
(E.D.N.Y. July 30, 2013); see also Nassar,
133 S. Ct. at 2534 (2013) (stating that a
plaintiff “must establish that his or her
protected activity was a but-for cause of the
alleged adverse action by the employer”);
Goins v. Bridgeport Hosp., 555 F. App’x 70,
73–74 (2d Cir. 2014) (same).
18

occurred in the absence of the alleged
wrongful action or actions of the
employer”); see also Stoler v. Inst. for
Integrative Nutrition, No. 13-CV-1275,
2013 WL 6068598, at * 12 (S.D.N.Y. Nov.
18, 2013) (“[E]ven under the ‘but-for’
standard . . . an employer may be held liable
. . . if other factors contributed to its taking
an adverse action, as long as [the protected
characteristic] was the factor that made a
difference.” (internal quotation marks and
citation omitted) (alteration in original));
Graham v. Three Vill. Cent. Sch. Dist., No.
11-CV-5182, 2013 WL 5445736, at *25
(E.D.N.Y. Sept. 30, 2013) (“To satisfy this
but-for causation element, plaintiff must
‘prove that [her] termination would not have
occurred in the absence of a retaliatory
motive.’” (quoting Moore v. Kingsbrook
Jewish Med. Ctr., No. 11–CV–3625 (MKB),
2013 WL 3968748, at *20 (E.D.N.Y. July
30, 2013))).

asserts numerous other retaliatory actions
including, among other things, job
assignments.
In any event, having reviewed the
record in the light most favorable to
plaintiff, the Court concludes (construing the
evidence most favorably to plaintiff) that
there is sufficient evidence from which a
reasonable jury could find that plaintiff’s
protected activity was the “but for” cause of
the denied promotion, regardless of
plaintiff’s subjective understanding of the
situation. The determination of whether
plaintiff’s protected activity was the “but
for” cause of the denied promotion generally
should be a task best left to the jury. See
Kwan v. Andalex Grp. LLC, 737 F.3d 834,
846 n. 5 (2d Cir. 2013) (“The determination
of whether retaliation was a ‘but-for’ cause,
rather than just a motivating factor, is
particularly poorly suited to disposition by
summary judgment, because it requires
weighing of the disputed facts, rather than a
determination that there is no genuine
dispute as to any material fact. A jury should
eventually determine whether the plaintiff
has proved by a preponderance of the
evidence that she did in fact complain about
discrimination and that she would not have
been terminated if she had not complained
about discrimination.”). More importantly,
according to the Second Circuit, “a
plaintiff’s injury can have multiple ‘but-for’
causes, each one of which may be sufficient
to support liability.” Id. Thus, the “but-for”
standard required by Nassar “does not
equate to a burden to show that such
consideration was the ‘sole’ cause.” Id.
Instead, the plaintiff must establish that
adverse employment action would not have
occurred had she not engaged in protected
activity. Nassar, 133 S. Ct. at 2533 (stating
that proving Title VII retaliation claims
according to the traditional principles of butfor causation “requires proof that the
unlawful retaliation would not have

In light of the evidence detailed in the
earlier Memorandums and Orders, including
the
fact
that
Bermudez
stopped
recommending plaintiff for promotion after
her complaint in this lawsuit was filed
because he could no longer “trust” her
because of the allegations she made in her
complaint, a reasonable jury could find,
even under the more stringent Nassar
standard, that plaintiff would not have been
denied a command staff position, after the
lawsuit was filed, had she not engaged in
protected activity.
Accordingly, the Court again denies
summary judgment to defendants on
plaintiff’s retaliation claim.
IV. CONCLUSION
For the foregoing reasons, defendants’
motion to dismiss is granted in part and
denied in part. The Court dismisses the
discrimination claims relating to the Deputy
and Assistant Chief of Police positions for
19

lack of subject matter jurisdiction. Thus, the
discrimination claims relating to the Deputy
and Assistant Chief of Police positions must
be pursued through the procedures provided
in the Government Employees Civil Rights
Act of 1991– namely, a final order from the
EEOC with appeal to the Court of Appeals.
The Court denies the motion to dismiss
for failure to exhaust administrative
remedies, and denies the motion for
summary judgment as to plaintiff’s
retaliation claim.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: June 3, 2015
Central Islip, NY
***
Plaintiff is represented by Robert John Valli,
Jr. and Sara Wyn Kane, Valli Kane &
Vagnini LLP, 600 Old Country Road, Suite
519, Garden City, N.Y. 11530. Defendants
are represented by Howard Marc Miller,
John Francis McKay, III, and Richard S.
Finkel, Bond, Schoeneck & King, 1399
Franklin Avenue, Suite 200, Garden City,
N.Y. 11530.

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