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