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December 7, 2000


The opinion of the court was delivered by: Chin, District Judge.


Plaintiff Gregory Lamberson, a Caucasian male, alleges that he was unlawfully discharged from his job as manager of a movie theater because he complained when his employer reassigned an African-American employee from the publicly visible position of ticket-taker to the behind-the-scenes position of usher. Lamberson asserts claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and New York law for discrimination on the basis of race and retaliation.

Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56, arguing that Lamberson was dismissed not for any unlawful reason but because he exercised poor judgment in exercising his managerial duties. For the following reasons, defendants' motion is granted in part and denied in part.


A. The Facts

Construed in the light most favorable to plaintiff, the facts are as follows:

1. Defendants

Defendant Six West Retail Acquisition Inc. ("Six West") operates the Paris Theater (the "Paris"), a movie theater located on West 58th Street in New York City that exhibits primarily independent and art films. (Declaration of Steven Cherniak, ¶ 2). Six West is wholly owned by Sheldon Solow. (Id.). At all relevant times, Six West engaged Jacobs Entertainment, Inc. ("Jacobs Entertainment") as the managing director of the Paris. Pursuant to this arrangement, Jacobs Entertainment's principal, Jeffery Jacobs, oversaw the operation of the Paris. (Cherniak Decl. ¶ 5).

It is undisputed that defendants Solow Management Corporation and Solow Realty & Development Company, LLC, have "no role in the ownership or operation of the Paris," and that The Paris Theat[re] Company is a dormant entity that was formed for the purpose of operating the Paris but has never been used for that or any other purpose. (Cherniak Decl. ¶¶ 1, 3-4; Def. 56.1 ¶¶ 1-6; Pl. 56 .1; see Local Civil Rule 56.1(c)).

2. Lamberson's Employment at the Paris

On June 23, 1997, Six West, through Jacobs, hired Lamberson to be the manager of the Paris. (Compl ¶ 17; Ans. ¶ 17; Cherniak Decl. ¶ 6). Over the course of his employment, Lamberson frequently complained to Jacobs, his immediate supervisor, about a variety of topics, including (but by no means limited to): inadequate staffing; inadequate security; the inadequate porter's union selected by Solow; the Paris's lack of affiliation with "777-FILM"; and Lamberson's lack of authority over payroll matters. (Def. 56.1 Exs. 12, 16-24, 26-27, 29, 30, 32-33). Despite the barrage of complaints, it appears that Jacobs thought Lamberson performed his job well. Indeed, on May 27, 1998, Jacobs sent a letter to Steven Cherniak, Chief Executive Officer of Six West, praising Lamberson and requesting that he be given a $100 per week raise. (Pl. 56.1 Ex. 2; Cherniak Decl. ¶ 1). Jacobs cited Lamberson's "terrific job" and "capable management" as justification for the requested salary increase. (Id.).

Lamberson never received the requested raise. (Lamberson Dep. p. 48). In addition, Lamberson's duties as manager of the Paris changed after May 1998; for example, Lamberson's hiring authority was revoked, he was no longer invited to meetings, and he was no longer consulted about management decisions. (Lamberson Dep. pp. 61-62, 67; Jacobs Dep. pp. 97-98). Lamberson attributes these particular changes and his eventual discharge to a particular complaint he made on June 9, 1998 regarding his employer's reassignment of an African-American employee, Derrick Caver,*fn1 from the position of ticket-taker to that of usher.

3. The Dispute Regarding Caver

Caver began work at the Paris on March 30, 1998 as a daytime ticket-taker or "greeter." A ticket-taker at the Paris is required to greet customers when they enter the theater, organize customers into lines when necessary, take customers' tickets, and answer their questions. (Def. 56.1 ¶ 12; Lamberson Dep. p. 75; Jacobs Dep. pp. 81-82). Lamberson, who at the time had independent hiring authority, selected Caver for the position because they had previously worked together at another movie theater and Lamberson knew Caver to be a "conscientious" and "reliable" employee. (Pl. 56.1 Ex. 3; Lamberson Dep. p. 209).

Sometime in April 1998, Jacobs told Lamberson that Caver didn't "look right" for the Paris and suggested that Caver shave his facial hair and make an effort at being properly attired. (Lamberson Dep. p. 209; Lamberson Aff. ¶ 3; Jacobs Dep. p. 92). In response, Lamberson told Caver he had to arrive at work clean-shaven. Caver complied. (Lamberson Dep. pp. 209-10; Jacobs Dep. pp. 93, 98). Nevertheless, at some point thereafter Sheldon Solow, owner of Six West and therefore also the Paris, saw Caver and objected to his "appearance." (Jacobs Dep. p. 114; Lamberson Aff. ¶ 5). At Solow's suggestion, Jacobs instructed Lamberson to reassign Caver to the position of usher or concessionaire. (Jacobs p. 115). Lamberson complied, transferring Caver to the position of usher. (Def. 56.1 ¶¶ 13, 14). According to defendants, Caver was reassigned both because he had an unkempt appearance and because he lacked the "outgoing" personality required for the ticket-taker position. (Jacobs Dep. pp. 99-115). The record contains conflicting evidence regarding whether Caver was in fact "outgoing." (Fusco Dep. p. 9; Patro Dep. p. 36). Caver did not complain about the reassignment or believe that he was being discriminated against; on the contrary, he was pleased with the transfer because it enabled him to work more hours and receive an increase in pay. (Caver Dep. p. 23).

On June 9, 1998 — the day after Solow and Jacobs visited the theater — Lamberson sent Jacobs a memo complaining that he was "greatly disturbed" by Caver's reassignment and the fact that Caver apparently could not "be seen in the lobby at all." (Pl. 56.1 Ex. 3). Lamberson concluded the memo by saying, "[i]t is troubling to me that the first black male that I have hired at this theatre . . . is the cause of so much unnecessary concern. . . . In fifteen years of theatre management I have never had to worry about losing a good worker for such questionable reasons." (Id.). Plaintiff copied the memo to Six West's Human Resources Department. (Lamberson Dep. p. 234).

According to Lamberson, Jacobs became "angry" that he involved Human Resources. Lamberson alleges that Jacobs called him a "do-gooder, on a crusade . . . to save the world," and that Jacobs warned him he "could be fired in connection" with the memo. (Lamberson Aff. ¶ 13; Fusco Dep. p. 25). On June 14, 1998, Lamberson again wrote Jacobs, stating "[Caver] is the first African American male who has been hired at the Paris, and he is being judged within very ambiguous parameters of personal appearance that would be hard not to question."*fn2 (Pl. 56.1 Ex. 5). Apparently, no further words were exchanged on the subject.

4. The Sign Incident

On August 1, 1998, the film "The Governess" opened at the Paris. The film attracted a large number of patrons and, due to the crowds, Lamberson decided to delay the 9:30 p.m. showing of the film until 10:00 p.m. Accordingly, Lamberson posted a sign in the box office stating that the 9:30 p.m. showing of the film would be delayed "for reasons of safety." (Fusco Dep. p. 42; Lamberson Dep. p. 251). Tom Prassis, an executive from Sony Picture Classics (the distributor of The Governess), walked by the Paris that night and saw Lamberson's sign. (Jacobs Dep. pp. 202-04). On Monday, August 3, 1998, Prassis called Jacobs to question whether Sony had lost business as a result of the sign and whether there were safety issues at the Paris. (Prassis Dep. pp. 6-7; Jacobs Dep. pp. 201-04). There is conflicting evidence in the record regarding whether anyone also called Solow to complain about the sign. (Solow Dep. pp. 41-42; Jacobs Dep. p. 206; Affidavit of Michael Barker, annexed to Pl. 56.1).

On August 3, 1998, Jacobs told Lamberson that "from a public relations standpoint the sign could have been better phrased," but he did not fire Lamberson at that time. (Lamberson Aff. ¶ 17; Jacobs Dep. p. 205-06, 217). Sometime between August 3, 1998 and August 5, 1998, Jacobs met with Solow to discuss the sign. (Def. 56.1 ¶ 30). Solow expressed the opinion that whoever put up the sign was "irresponsible" and should be fired. (Solow Dep. p. 42). Defendants contend that when Solow expressed this opinion he was unaware that Lamberson posted the sign. (Solow Dep. p. 42; Cherniak Decl. ...

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