United States District Court, Northern District of New York
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 verdict for the nonmovant. See Liberty
Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at
587. Conversely, "summary judgment is appropriate only where application
of the law to those undisputed facts will reasonably support only one
ultimate conclusion." Richardson, 180 F.3d at 438.
B. Quid Pro Quo Harassment / Hostile Work Environment
Title VII of the Civil Rights Act of 1964 makes it "an unlawful
employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions or
privileges of employment, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Accordingly, "Title VII affords employees the right to work in an
environment free from discriminatory intimidation, ridicule, and insult."
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
The Second Circuit has recently clarified that there is no need to
distinguish between "hostile work environment" sexual harassment and
"quid pro quo" harassment. See Gregory v. Daly, 243 F.3d 687, 698 (2d
Cir. 2001) (interpreting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998), and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998)). In Gregory, the court observed that the Supreme Court "has
indicated that these labels, to the extent that they are useful at all,
are so merely as descriptions of varying workplace conditions that
violate Title VII's basic prohibition on sex discrimination in terms or
conditions of employment." Id. (citing Ellerth, 524 U.S. at 751-52;
Oncale, 523 U.S. at 78-81). After Gregory, it is clear that allegations
of "quid pro quo" sexual harassment do not state an independent claim,
but are instead merely one type of factual allegation to support a cause
of action under Title VII. See id. Accordingly, Yerry's claims of quid
pro quo harassment will not be addressed separately, but will be
considered as part of his claims that he was subjected to (1) a hostile
work environment by White and Pizza Hut, and (2) retaliation by Pizza Hut
for complaining about White's conduct.
C. Hostile Work Environment
In order to establish a prima facie case of hostile work environment
discrimination, a plaintiff must sufficiently plead and prove: (1) that
he is a member of a protected group; (2) that he was the subject of
unwelcome advances; (3) that the harassment was based upon his sex; and
(4) that the harassment affected a term, condition or privilege of his
employment. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d
Cir. 1993). The fourth element is established by showing that his
workplace "was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of [his] work
environment." See id. Further, a plaintiff must also demonstrate that
"a specific basis exists for imputing the conduct that created the
hostile environment to the employer." Schwapp, 118 F.3d at 110.
It will be assumed for the purposes of this motion only that
plaintiff's allegations would satisfy the first three elements of this
The analysis then turns to the fourth element. Whether the
alleged conduct affected a term, condition or privilege of his
employment. Conduct "sufficiently severe or pervasive" to create a
hostile environment is that which "a reasonable person would find hostile
or abusive," and which the victim subjectively perceived to be abusive.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
A work environment is "objectively hostile" where a reasonable person
who is the target of discrimination would find the working conditions so
severe or pervasive as to alter the terms and conditions of employment
for the worse. See Richardson, 180 F.3d at 436. "Determining whether
workplace harassment was severe or pervasive enough to be actionable
depends on the totality of the circumstances." Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir. 2000). The existing circumstances
should be considered "cumulatively." Schwapp, 118 F.3d at 111. Factors
relevant to determining whether plaintiff's working conditions meet the
standard may include: (1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether the conduct was physically threatening or
humiliating, or a mere offensive utterance; (4) whether the conduct
unreasonably interfered with plaintiff's work; and (5) what psychological
harm, if any, resulted. Harris, 510 U.S. at 23.
Generally, an isolated episode of harassment will not suffice to
demonstrate a hostile work environment unless it was "extraordinarily
severe." Cruz, 202 F.3d at 570. Otherwise, a plaintiff may show that a
"series of incidents were sufficiently continuous and concerted to have
altered the conditions of [his] working environment." Id. However,
"`[t]here is neither a threshold `magic number' of harassing incidents
that gives rise, without more, to liability as a matter of law, nor a
number of incidents below which a plaintiff fails as a matter of law to
state a claim." Richardson, 180 F.3d at 439 (quotation omitted); see
also Harris, 510 U.S. at 22 (hostile environment is not a "mathematically
precise test"). Thus, for example, in Howley v. Town of Stratford,
217 F.3d 141 (2d Cir. 2000), the Second Circuit reversed the District
Court's grant of summary judgment for the defendant in a hostile work
environment claim. The lower court's dismissal was apparently based on
the sole fact that the plaintiff had
alleged "a single incident of verbal harassment." In reversing, the
Second Circuit explained that the lower court had failed to consider the
totality of the circumstances, including the fact that the verbal offense
was a long, obscene tirade witnessed by plaintiff's co-workers.
In the instant case, there was only one incident that the plaintiff
complained of. However, the incident of September 13, 1999, was a severe
and humiliating physical incident, not a mere offensive utterance.
Drawing all inferences in favor of plaintiff, it is reasonable to
conclude that an eighteen year old boy would find being forced by his
supervisor to say a prayer and spank himself with his own belt in a
locked restroom while the supervisor watched, sufficiently severe as to
alter the terms and conditions of his employment. In viewing the
totality of the circumstances, it is held that a reasonable jury could
find that the incident with defendant White was severe enough to
constitute a hostile work environment.
D. Employer Liability
The plaintiff must next establish a basis for imputing White's conduct
to Pizza Hut. An employer will be presumed responsible where the
perpetrator of the harassment was the victim's supervisor. See, e.g.,
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
However, Burlington also provides employers with an affirmative defense
in cases where it took no tangible employment action against the
plaintiff employee. Id. at 765. Under this defense the employer will be
entitled to prevail where the perpetrator was the victim's supervisor if
(1) there was no tangible employment action against a plaintiff as a
result of the harassment; and (2) the employer exercised reasonable care
to prevent and correct the sexually harassing action or behavior; and (a)
the plaintiff did not avail himself of these preventative or corrective
opportunities; or (b) the employee complained and the employer responded
by acting soon thereafter to appropriately correct the action or behavior
complained of. Van Alstyne v. Ackerly Group, 2001 U.S. App. LEXIS
10588, 10 (2d Cir. May 21, 2001).
The only question concerning the applicability of the defense in this
case is whether Pizza Hut exercised reasonable care to prevent and
correct White's behavior. Although plaintiff argues that the hostile and
unfriendly treatment of him by his co-workers and Pacillo constituted a
tangible employment action, such allegations are far too tenuous and
ambiguous to constitute a "tangible" employment action. Plaintiff also
contends that his work hours were cut after his complaint; however,
plaintiff's pay records show that his hours remained the same.
Accordingly, it is held that plaintiff has failed to establish that he
was subjected to such an action by Pizza Hut.
Yerry argues that Pizza Hut failed to prevent White's conduct, and is
therefore responsible for it. He asserts that while White was working
for Pizza Hut, the company obtained information that White was arrested
and charged with sexual abuse and endangering the welfare of minor boys.
Plaintiff argues that Pizza Hut negligently retained the defendant by
failing to act on the knowledge of the arrest. However, White denied
those allegations. Pizza Hut had no duty to fire White on the basis of
allegations of actions that occurred outside of work while there were no
allegations of sexually harassing conduct in work. See Ferris v. Delta
Air Lines, Inc., 2001 U.S. App. LEXIS 27191, 22-24 (2d Cir. Dec. 21,
2001) (stating that employers are not liable for torts committed outside
of their premises). See also, Jackson v. Kimel, 992 F.2d 1318, 1323 (4th
Cir. 1993) (stating that an
employer will not be held liable for an employee's alleged misbehavior
outside of work, there must be a showing of an employee's proclivity to
engage in sexually offensive conduct at work). Prior to the incident on
September 13, 1999, there were no other incidents reported to Pizza Hut
of White engaging in sexually offensive behavior while at work.
Therefore, Pizza Hut could not have taken action against White. As a
result, it is held that Pizza Hut did not fail in its duty to prevent
White's conduct. Plaintiff's next argument is that Pizza Hut failed to
respond appropriately to White's conduct. The assessment of the
employer's response to the inappropriate conduct is frequently considered
a jury question. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170,
1180-81 (2d Cir. 1996). Indeed, "[i]f the evidence creates an issue of
fact as to whether an employer's action is effectively remedial and
prompt, summary judgment is inappropriate." Gallagher v. Delaney,
139 F.3d 338, 348 (2d Cir. 1998); accord, Richardson, 180 F.3d at 441.
However, in this case, there is no question of fact concerning the
reasonableness of Pizza Hut's response to submit to a jury. In response
to the plaintiff's complaint, Pizza Hut immediately investigated his
claim and suspended White. He never returned to work with Pizza Hut
after he was suspended. Therefore, Yerry never had to work with White
after the restroom incident. As a matter of law, the defendant Pizza Hut
acted promptly and appropriately in response to the plaintiff's
In order to establish a prima facie case of retaliation, a plaintiff
must demonstrate: (1) participation in a protected activity known to the
defendant; (2) an employment action disadvantaging the plaintiff; and (3)
a causal connection between the protected activity and the adverse
employment action. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769
(2d Cir. 1998). To constitute "protected activity" for purposes of
meeting the first element, the employee need only establish that he
opposed an employment practice based on a "good faith, reasonable belief"
that such employment practice was unlawful. See id. Where, as here, a
plaintiff complains to his employer about unlawful sexual harassment, it
is undisputed that plaintiff engaged in a protected activity. With regard
to plaintiff's claims that he was subjected to an adverse employment
action, this claim fails for the same reason that his claims of a
"tangible employment action" are rejected. Plaintiff argues that his
isolation from the manager and co-workers establishes an adverse
employment action; however, these allegations are far too speculative.
Even drawing all inferences in favor of the plaintiff, there is simply no
adequate basis in the record to conclude that plaintiff was subjected to
any tangible adverse employment action. In fact, plaintiff continued to
work for Pizza Hut until he found a better job. Accordingly, his
retaliation claim must be dismissed.
F. Defendant White
It is well settled in New York that individual employees cannot be
liable under Section 296(1) of the Executive Law, which provides that "it
shall be an unlawful discriminatory practice for any employer . . . to
discriminate against such individual in compensation or in terms,
conditions, or privileges of employment." N.Y. Exec. Law §
296(1)(a). See Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (1984).
The Second Circuit has held, however, that individual employees can be
liable as aiders and abettors under section 296(6) of that statute.
Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).
"It is generally accepted, however, that once an employer has been
found to have not discriminated, there is no predicate for imposing
liability on the supervisors under an aiding and abetting theory."
Falbaum v. Pomerantz, 2001 U.S. App. LEXIS 19882, 14 (2d Cir. Sept. 6,
2001). See also Tomka, 66 F.3d at 1315 (noting that the inappropriate
conduct must be able to be imputed to the employer before a supervisor
can be liable). Since there has been no finding that Pizza Hut engaged in
discriminatory behavior, White can not be held liable under section
296(6) of the Executive Law. Accordingly, plaintiff's New York Executive
Law causes of action against White must be dismissed.
For the foregoing reasons, and viewing the facts in the light most
favorable to the plaintiff, there is no basis to impute White's conduct
to Pizza Hut. Further, no retaliatory action was taken against the
plaintiff by Pizza Hut. Plaintiff's federal law (Title VII) cause of
action against Pizza Hut and plaintiff's state law (Executive Law) cause
of action against Pizza Hut and Charles White must be dismissed.
Supplemental jurisdiction will not be retained over his remaining state
law causes of action which will be dismissed without prejudice.
Accordingly, it is ORDERED that
1. Plaintiff Toby Yerry's causes of action pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-e et seq.
and New York Executive Law §§ 290 et seq. against defendant Pizza Hut
of Southeast Kansas are DISMISSED;
2. Plaintiff Toby Yerry's cause of action for civil conspiracy is
3. Plaintiff Toby Yerry's cause of action pursuant to New York
Executive Law §§ 290 et seq. against Defendant Charles White is
4. Plaintiff Toby Yerry's state law causes of action for assault and
battery, false imprisonment, and intentional infliction of emotional
distress are DISMISSED without prejudice.
The clerk is directed to enter judgment dismissing the complaint in its
entirety in accordance with this decision.
IT IS SO ORDERED.