Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
YERRY v. PIZZA HUT OF SOUTHEAST KANSAS
February 6, 2002
TOBY YERRY, PLAINTIFF,
PIZZA HUT OF SOUTHEAST KANSAS; CHARLES WHITE, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION and ORDER
Plaintiff Toby Yerry ("Yerry" or "plaintiff") commenced this action
pursuant to Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000-e et seq., New York Executive Law §§ 290 et seq.,
and state common law. The federal cause of action is for sexual
harassment and retaliation against plaintiff's former employer, defendant
Pizza Hut of Southeast Kansas, Inc. ("Pizza Hut").*fn1 Plaintiff also
sues defendant Charles White ("White" or "defendant") (collectively,
"defendants"), a shift manager for Pizza Hut in state law causes of
action for assault and battery, false imprisonment, intentional
infliction of emotional distress, and under the Executive Law for sexual
harassment and discrimination.
Defendants have moved for summary judgment dismissing plaintiff's
complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Oral argument was heard on December 21, 2001, in Utica, New York.
Decision was reserved.
The following are the facts in the light most favorable to the
plaintiff. The plaintiff, a 20 year old, began his employment with Pizza
Hut in February 1999 at the restaurant in Gloversville, New York. He was
18 years old at the time and he worked primarily as a delivery driver.
White began working for the Gloversville Pizza Hut in April 1999. He was
hired as a night shift manager.
On September 13, 1999, Yerry worked an evening shift that began at 4:00
p.m. and ended when the restaurant closed at 11:00 p.m. White was the
plaintiff's shift manager that evening. The plaintiff and defendant were
assigned to close the restaurant. Plaintiff returned from his last
delivery at about 10:20 p.m. and was questioned by the defendant as to a
missing delivery ticket. The plaintiff found the ticket in his car and
gave it to the defendant along with the money for that delivery.
White accused Yerry of trying to steal the money, and stated that he
would call the police and plaintiff would be fired. The defendant
insisted he should be punished and ordered the plaintiff to recite a
prayer as dictated by him. White then told the plaintiff that he would
either spank plaintiff or call the police. Plaintiff refused to allow
the defendant to spank him. He then completed his closing duties and
prepared to leave when the defendant again insisted that he be punished in
some way. White told the plaintiff that he would let him go into the
restroom and spank himself with his own belt. Yerry asserts that he was
afraid of the defendant and afraid of losing his job, so he followed him
into the men's restroom. While in the restroom, White locked the door
and plaintiff lowered his pants, revealing a portion of his right buttock
and hip, and spanked himself. The defendant watched while he did this
but did not touch him. Thereafter, plaintiff immediately left the
The following morning, September 14, 1999, Yerry returned to the
restaurant with his mother and his girlfriend to report the incident to
the restaurant manager, Ryan Pacillo ("Pacillo"). Pacillo questioned
White about the plaintiff's allegations which the defendant denied.
White was suspended from work that very day and never returned. Plaintiff
continued to work for Pizza Hut, but claims that he was treated
differently by his co-workers. His co-workers rolled their eyes at him,
glared, and often gave unfriendly looks. Plaintiff also asserts that
Pacillo was more critical of his work and not as friendly to him as he
had been before the White incident. Shortly after December 25, 1999,
plaintiff found other employment and resigned from Pizza Hut.
A. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions,
answers to interrogatories, admissions, and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Richardson v.
New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir.
1999). The moving party carries the initial burden of demonstrating an
absence of a genuine issue of material fact. See Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the nonmovant.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost,
722 F.2d 960, 968 (2d Cir. 1983).
Once the moving party has met the initial burden of demonstrating the
absence of a genuine issue of material fact, the nonmoving party "must
set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Celotex
Corp., 477 U.S. at 323. Courts have urged care in reviewing
discrimination claims, noting that "[b]ecause direct evidence of . . .
discriminatory intent will rarely be found, `affidavits and depositions
must carefully be scrutinized for circumstantial proof which, if
believed, would show discrimination.'" Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nevertheless, the nonmoving
party "must do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at
586; see also Schwapp, 118 F.3d at 110 ("[e]ven in the discrimination
context, a plaintiff must provide more than conclusory allegations of
discrimination to defeat a motion for summary judgment."). To withstand
a summary judgment motion, sufficient evidence must exist upon which a
reasonable jury could return a ...
Buy This Entire Record For