i. Hostile Environment
In his opposition papers, plaintiff claims that he was
subjected to a discriminatory hostile work environment because of
defendants' treatment of Caver. Plaintiff's complaint is devoid
of any allegations of intimidation, ridicule, or insult that
would give rise to a claim for hostile work environment. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct.
367, 126 L.Ed.2d 295 (1993) (a work environment is considered
hostile "when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment")
(internal references omitted); Perry v. Ethan Allen, Inc.,
115 F.3d 143, 149 (2d Cir. 1997) (to be deemed pervasive, hostile
incidents "must be more than episodic; they must be sufficiently
continuous and concerted") (quoting Carrero v. New York City
Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989)).
Even assuming the complaint could be read to assert a hostile
work environment claim, plaintiff has pointed to no evidence in
the record from which a reasonable jury could find that he was
subjected to conduct so severe or pervasive as to create a
hostile work environment. Nor has Lamberson pointed to evidence
of any behavior directed at Caver or other minorities such as
would rise to the level of creating an overall hostile working
environment. See Cruz, 202 F.3d at 570 (plaintiff alleging
hostile environment claim need not show that offensive remarks or
behavior were "directed at individuals who are members of [his]
own protected class"). The evidence merely shows that plaintiff
felt "uncomfortable" interacting with Caver because of Caver's
reassignment. Such evidence is insufficient to support a claim
for hostile work environment under Title VII.
ii. Right of Association
Similarly, Lamberson's complaint is devoid of allegations of
infringement upon his right to interracial association. This is
itself sufficient grounds for granting defendants' motion for
summary judgment on this claim. Even assuming the complaint could
be read to allege a claim for interference with interracial
association, and further assuming (without deciding) that
plaintiff has standing under Title VII to assert such a claim,
cf. Gavenda v. Orleans County, No 97 Civ. 0074E, 1998 WL
136122, at *3-4 (W.D.N.Y. Mar.19, 1998) (permitting amendment to
allege Title VII claim for associational loss resulting from the
defendants' alleged discrimination against others), it is clear
that plaintiff's claim based on associational loss is
nevertheless untenable. There is no evidence in the record from
which a reasonable jury could find that defendants deprived
Lamberson of the ability to associate with minorities.*fn5
Lamberson's own testimony confirms that a substantial number of
employees at the Paris were members of minority groups. Moreover,
although Lamberson claims that defendants' actions made him
"uncomfortable" with Caver and "created an unnatural barrier"
between the men, the record reveals that Caver continued to work
for the Paris and to socialize with Lamberson. Indeed, Caver
characterizes Lamberson as his friend. (Caver Dep. p. 7).
Accordingly, summary judgment is granted with respect to
plaintiff's Title VII race discrimination claim.
a. Legal Standards
Title VII also provides that "it shall be an unlawful
employment practice for an
employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment
practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). The
McDonnell Douglas burden shifting rules apply to retaliation
claims; under these rules, plaintiff bears the initial burden of
establishing a prima facie case of retaliation by showing that:
"(1) [plaintiff] was engaged in an activity protected under Title
VII; (2) the employer was aware of plaintiff's participation in
the protected activity; (3) the employer took adverse action
against plaintiff; and (4) a causal connection existed between
the plaintiff's protected activity and the adverse action taken
by the employer." Gordon v. New York City Bd. of Educ.,
232 F.3d 111, 115 (2d Cir. 2000) (quoting Cosgrove v. Sears, Roebuck
& Co., 9 F.3d 1033, 1039 (2d Cir. 1993)); see Cruz, 202 F.3d
If the plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate a legitimate,
non-retaliatory reason for the adverse employment action. If such
a reason is proffered, the burden then shifts back to the
plaintiff prove the ultimate issue — whether "retaliation `played
a motivating role in, or contributed to, the employer's
decision.'" Gordon, 232 F.3d at 117 (quoting Renz v. Grey
Advertising, Inc., 135 F.3d 217, 222 (2d Cir. 1997)); see also
James, 233 F.3d at 156 (court must examine entire record to
determine whether plaintiff can "satisfy ultimate burden of
persuading trier of fact" defendants' actions were unlawful)
(internal quotations omitted).
Defendants argue that they are entitled to summary judgment on
plaintiff's retaliation claim because he has not established a
prima facie case. I address these arguments in the context of
discussing the "ultimate issue" — that is, whether plaintiff has
adduced sufficient evidence to support an inference that the
decision to fire him was motivated, at least in part, by an
impermissible reason: defendant's desire to retaliate against him
for engaging in protected activity.
1. Protected Activity
To prove he engaged in a protected activity, plaintiff must
show (1) that he opposed a practice engaged in by his employer,
and (2) that he had a "good faith, reasonable belief that the
underlying challenged actions of [his] employer violated the
law." Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134
(2nd Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145
L.Ed.2d 310 (1999) (quoting Manoharan v. Columbia Univ. College
of Physicians, 842 F.2d 590, 593 (2d Cir. 1988)). Defendants
contend that Lamberson fails on both counts. First, they argue
that Lamberson did not engage in protected activity because he
did not "actually accuse" his employer of violating the law.
Protected oppositional activities include informal as well as
formal complaints and complaints to management. See Cruz, 202
F.3d at 566; Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990). An issue of fact exists as to whether
plaintiff's June 9, 1998 and June 14, 1998 memoranda constituted
protected activity. Certainly a reasonable jury could find that
the fair import of the memoranda is that Lamberson believed his
employer to be unfairly discriminating against Caver because of
his race; indeed, the record contains evidence that defendants
interpreted the memoranda in this manner. (Jacobs Dep. pp.
Second, defendants contend that it was not reasonable for
Lamberson to believe that they engaged in unlawful discrimination
by transferring Caver to the position of usher. Lamberson need
not prove that defendants actually violated Title VII by
reassigning Caver, however; he need prove only that, under all
the circumstances, he possessed a good faith, reasonable belief
that the reassignment violated Title VII. See Wimmer, 176 F.3d
Galdieri-Ambrosini v. National Realty & Development Corp.,
136 F.3d 276, 292 (2d Cir. 1998). The "determination of whether
plaintiff's belief was reasonable and made in good faith depends
in part on an assessment of plaintiff's legal sophistication.
Therefore, a good faith mistake, whether of fact or law,
regarding the legality of the employer's conduct will not strip
the plaintiff of Title VII protection against retaliation."
Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359,
380 (S.D.N.Y. 1999) (citation and quotation omitted).
Lamberson has raised a triable issue as to whether he had a
good faith, reasonable belief that transferring Caver was
unlawful. The record contains evidence that: (1) Caver was
reassigned despite his apparent compliance with Jacobs's
directive that he arrive at work clean-shaven; (2) Caver — the
only African-American male employee at the Paris — was the only
one not permitted to replace ticket-takers or be in the lobby;
(3) Jacobs instructed Lamberson to justify why Caver should not
be fired for being in the lobby; and (4) Caver himself began to
believe he was being treated differently because of his race.
Relying on such evidence, a jury could find that Lamberson
reasonably believed defendants' transfer of Caver violated Title
2. Causal Connection
A plaintiff may allege proof of causation either: "(1)
indirectly, by showing that the protected activity was followed
closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the
plaintiff by the defendant." Gordon, 232 F.3d at 117. Lamberson
has pointed to both indirect and direct evidence sufficient to
establish a causal connection between his June 1998 complaints
and his discharge.
Lamberson was fired approximately two months after he
complained to Jacobs about Caver's reassignment and three months
after Jacobs gave him a glowing review. This close temporal
proximity between Lamberson's complaints and his discharge is
sufficient circumstantial evidence of causation, particularly
when the discharge followed so closely on the heels of a positive
performance review. See Meckenberg, 42 F. Supp.2d at 382. In
addition, Jacobs's warning that Lamberson "could be fired in
connection" with the June 9, 1998 memo and his admission that
management was justified in discharging Lamberson because of his
anger over the Caver incident constitute direct evidence of
retaliatory animus. Although defendants contend that Solow made
the ultimate decision to fire Lamberson not knowing at the time
that Lamberson was responsible for the ill-advised box office
sign, the record contains evidence that Solow was aware of
Lamberson's responsibility for the sign and that Jacobs met with
Solow prior to Lamberson's termination.
This evidence, taken together, is sufficient to support an
inference that, despite defendant's articulated reason for the
discharge, the decision to fire Lamberson was motivated, at least
in part, by retaliation. See James, 233 F.3d at 156; Gordon,
232 F.3d at 115-16; Fields, 115 F.3d at 120. Accordingly,
summary judgment is denied with respect to Lamberson's
C. Liability Under Title VII and New York Law
Even though Lamberson has presented triable issues of fact
sufficient to survive summary judgment on his retaliation claims,
not all of the seven named defendants may be held liable on these
claims. It is clear that plaintiff may maintain his claims
against his employer, Six West. Plaintiff has not set forth any
basis, however, for a finding of liability on behalf of Solow
Management Corporation, Solow Realty & Development Company, LLC,
The Paris Theatre Company, or Jacobs Entertainment, Inc.
Accordingly, they are dismissed from the action.
Plaintiff also alleges claims against individual defendants
Jacobs and Solow. Plaintiff cannot maintain a Title VII claim
against Jacobs or Solow, however, because there is no individual,
supervisory liability under Title VII. See Tomka v. Seiler,
66 F.3d 1295, 1313 (2d Cir. 1995) (individual supervisors not liable
under Title VII); Perks v. Town of Huntington, 96 F. Supp.2d 222,
226 (E.D.N.Y. 2000) (Title VII suit may not be brought
against individual defendants in personal or official capacities)
(citing cases); Meckenberg, 42 F. Supp.2d at 370 n. 2 (same).
Accordingly, summary judgment is granted with respect to
plaintiff's Title VII claims against Jacobs and Solow.
Because Jacobs and Solow may potentially be held liable under
New York law, however, they remain in the case. See, e.g.
Tomka, 66 F.3d at 1317 (defendant who "actually participates in
the conduct giving rise to a discrimination claim may be held
personally liable under the HRL"); Ahmed v. Compass Group, No.
99 Civ. 10032, 2000 WL 1072299, at *5 (S.D.N.Y. Aug. 3, 2000)
(individual defendant with ownership interest or power to hire
and fire may be liable under HRL § 296(1) and individual
defendant who "actually participates" in conduct may be liable
under HRL § 296(6)); Perks, 96 F. Supp.2d at 228 (noting split
among New York courts regarding reach of § 296(6) but following
Tomka); Lewis v. Triborough Bridge and Tunnel Auth.,
77 F. Supp.2d 376, 380 n. 6 (S.D.N.Y. 1999) (same); Sowemimo v.
D.A.O.R. Sec., Inc., 43 F. Supp.2d 477, 487 (S.D.N.Y. 1999)
(defendant who actually participates in conduct may be liable
under HRL and NYCHRL as an "aider and abettor"); DeWitt v.
Lieberman, 48 F. Supp.2d 280, 293-94 (S.D.N.Y. 1999) (same).
For the foregoing reasons defendants' motion for summary
judgment is granted in part and denied in part. Plaintiff's
claims for retaliation in violation of Title VII against Six West
and for retaliation in violation of New York law against Six
West, Solow, and Jacobs survive. Summary judgment is granted with
respect to the remaining claims. The parties shall appear for a
pretrial conference on January 5, 2001 at 10:00 a.m. in Courtroom
11A of the Daniel Patrick Moynihan United States Courthouse, 500
Pearl Street, New York, New York 10007.