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YERRY v. PIZZA HUT OF SOUTHEAST KANSAS

February 6, 2002

TOBY YERRY, PLAINTIFF,
V.
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

I. INTRODUCTION
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.

II. FACTS
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 restaurant.
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.
III. DISCUSSION
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 ...

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