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DODSON v. CBS BROADCASTING INC.

June 15, 2004.

GARY W. DODSON, Plaintiff,
v.
CBS BROADCASTING INC., et al. Defendants.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Kimba M. Wood, United States District Judge:

Pro se plaintiff Gary Dodson brings this action under Title VII, the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law against his former employer, CBS Broadcasting Inc. ("CBS"), and four CBS employees (collectively, "defendants"), alleging gender and age discrimination in employment conditions and refusal to hire Dodson as a full-time employee, and retaliation for Dodson's complaints of gender discrimination through reduced hours and termination. (See generally Dkt. No. 1: Compl.) Presently before the Court is defendants' summary judgment motion. (Dkt. Nos. 31-36, 46.)

  For the reasons set forth below, defendants' summary judgment motion should be DENIED (except for the claim against individual defendant Pettiti). FACTS

  Defendant Anthony DiGiovanni hired Plaintiff Gary W. Dodson as a per diem videotape editor at WCBS-TV*fn1 on June 29, 1998.*fn2 (Dkt. No. 32: CBS 56.1 Stmt. ¶¶ 1-2; Dkt. No. 44: Dodson 56.1 Stmt. ¶¶ 1-2; Dkt. No. 32: DiGiovanni Aff. ¶ 3; Dodson Dep. at 57-58.) Dodson was born in 1954 and was 43 years old when hired and 45 years old when fired. (CBS 56.1 Stmt. ¶ 7; Dodson Dep. at 26, 195; Dkt. No. 1: Compl. ¶ 5.) DiGiovanni was born in 1946. (CBS 56.1 Stmt. ¶ 8; DiGiovanni Aff. ¶ 1.) Until Dodson's termination in June 2000, DiGiovanni was Dodson's immediate supervisor, while Scott Kremer and defendant Michael Kentrianakis supervised Dodson on nights and weekends. (CBS & Dodson 56.1 Stmts. ¶¶ 10-11; Dodson Dep. at 65; DiGiovanni Aff. ¶ 13.) Dodson also was supervised by Al Petrasko, who was WCBS's Technical Operations Manager*fn3 for five months during late 1999 and early 2000. (CBS & Dodson 56.1 Stmts. ¶ 12; DiGiovanni Aff. ¶¶ 14-15.)

  CBS's staff videotape editors are represented by the International Brotherhood of Electrical Workers ("IBEW") for collective bargaining purposes. (CBS & Dodson 56.1 Stmts. ¶ 3; DiGiovanni Aff. ¶ 4 & Ex. B: CBS-IBEW CBA.) Under the CBS-IBEW collective bargaining agreement, per diem editors are at-will employees, hired as needed based on an increased workload or absence of staff editors. (CBS & Dodson 56.1 Stmts. ¶ 5; DiGiovanni Aff. ¶ 5 & Ex. B: CBA at 39-41, 82.) During Dodson's employment, WCBS had about 20 per diem editors and 20 full-time staff*fn4 and 4.03(g) editors.*fn5 (CBS 56.1 Stmt. ¶¶ 6, 13-15; Dodson 56.1 Stmt. ¶¶ 13-15; DiGiovanni Aff. ¶ 5; Dodson Aff. ¶ 3.)

  Dodson's responsibilities as a per diem editor included working with CBS reporters to edit news stories, editing voiceovers onto videotapes, operating the beta-cart machine for on-air playback, and taking in feeds on a microwave receiver. (CBS & Dodson 56.1 Stmts. ¶¶ 17-18; DiGiovanni Aff. ¶ 16; Dodson Dep. at 94-95.) According to Dodson, however, a per diem editor's duty was generally limited to editing videotape, and he "was the only per diem or 4.03(g) editor" who could also perform the functions of a microwave engineer or beta cart operator. (Dodson 56.1 Stmt. ¶¶ 17-18.) Dodson's Allegations of Gender Discrimination*fn6

  Hours Worked

  Dodson was scheduled on a week-to-week basis. (CBS 56.1 Stmt. ¶ 9; Dodson Dep. at 60-61.) In September or October 1998, DiGiovanni told Dodson that Dodson would generally work each Saturday and Sunday, but that his weekday schedule would vary. (CBS 56.1 Stmt. ¶ 16; Dodson 56.1 Stmt. ¶¶ 9, 16; Dodson Dep. at 60-61.) According to Dodson, in early October 1998, DiGiovanni "informed [Dodson] that because of the high quality of [Dodson's] work, [Dodson] would be placed on the `elite' freelance list." (Dodson 56.1 Stmt. ¶ 16; Dodson Aff. ¶ 5.)

  Dodson alleges that "DiGiovanni consist[e]ntly scheduled less experienced female editors and favored those female editors with plum assignments and more hours." (Dodson 56.1 Stmt. ¶ 16.) DiGiovanni contends that he did not schedule female per diem editors to work more hours than males, and did not schedule employees under 40 years of age to work more hours than those over 40. (CBS 56.1 Stmt. ¶¶ 41, 42; DiGiovanni Aff. ¶¶ 46, 49-62 & Exs. H, I; Dkt. No. 33: Hoffman Aff. Exs. A-C.) In particular, from Dodson's arrival on June 29, 1998 through December 31, 1998, DiGiovanni notes that he scheduled Dodson to more work hours than female per diem editors Lesley Meadows and Jessica Somers. (CBS 56.1 Stmt. ¶ 45; DiGiovanni Aff. ¶ 60 & Ex. I; Hoffman Aff. Ex. A.) However, Dodson notes that Meadows worked at ABC from June 20, 1998 to September 12, 1998, while Dodson worked each week. (Dodson 56.1 Stmt. ¶ 45.) CBS also claims that Dodson also had more scheduled hours than female per diem editor Holly Fontana from his start date until she became a 4.03(g) editor in October 1998. (CBS 56.1 Stmt. ¶ 46; DiGiovanni Aff. ¶ 56 & Ex. H.)

  DiGiovanni states that in 1999, he scheduled Dodson for more hours than Meadows, Somers, Lesley Peggot, and Kelly Pereira. (CBS 56.1 Stmt. ¶ 47, DiGiovanni Aff. ¶ 61 & Ex. I; Hoffman Aff. Ex. B.) On average, DiGiovanni scheduled Dodson for more hours per week than Peggot between January 2000 and Dodson's last day at CBS in June 2000, even though Dodson took a six-week vacation during that period. (CBS 56.1 Stmt. ¶ 48; DiGiovanni Aff. ¶ 62; Hoffman Aff. Ex. C.) Furthermore, in 1998, 1999, and 2000, DiGiovanni scheduled a male per-diem editor over age 40, Robert Rossicone, for more hours than female editors Peggot, Pereira, Burnette, Meadows, and Somers. (CBS 56.1 Stmt. ¶ 44; DiGiovanni Aff. ¶ 59; Hoffman Aff. Exs. A, B, & C.)

  Dodson takes issue with CBS' representation of per diem editors' hours, arguing that the exhibits to the affidavit of William Hoffman, Senior Payroll Tax Accountant and former Director of Payroll Accounting, are incomplete, "vague, and extremely poor." (Dodson 56.1 Stmt. ¶ 41, citing Hoffman Aff. Exs. A-C.) Specifically, the exhibits do not list all per diem editors, and only include two females, the hours are not divided into months or quarters for comparison, nor are the columns totaled. (Dodson 56.1 Stmt. ¶¶ 41-43.) Hoffman states that the computer print-outs attached to his affidavit are "payroll records generated at [Hoffman's] direction for certain video-tape editors employed by CBS in 1998, 1999 and 2000, respectively." (Hoffman Aff. ¶ 3.) CBS employed twenty per diem editors during Dodson's period of employment (CBS 56.1 Stmt. ¶ 6), but Hoffman's payroll printouts only include the hours for eleven editors (Hoffman Aff. Exs. A-C.) Hoffman does not specify on what basis he decided to provide the payroll records of these particular editors. The Court has calculated and summarized Hoffman's printouts as follows: Total Per Diem Hours Per Year

 MALES (DOB) 1998 1999 2000 Mulrenan (3/18/75) 1969.5 2757 2630 Sciangula (4/1/53) 246 425.5 440.5 Berman (10/29/69) 112 924.5 1421 Rossicone (10/29/53) 1930 1254 1911 Dodson (9/11/54) 699.5 1707.75 418 Strategias (2/28/70) n/a 125.5 410.5 Calarco (9/24/68) n/a 350.5 1908.75 FEMALES (DOB) 1998 1999 2000 Burnette (8/22/68) 767.5 1977 569.5 Meadows (11/19/64) 282.5 900.75 1925.5 Peggot (10/22/75) n/a 76.5 1235.5 Pereira (10/23/74) n/a 511 630.5 Fontana (n/a) 183 n/a 190 Somers (4/6/73) n/a n/a 631

  (See Hoffman Aff. Exs. A-C; DiGiovanni Aff. ¶ 12 & Exs. H & I.)

  CBS Receives Complaints About Dodson

  According to Dodson's supervisors, defendants DiGiovanni and Kentrianakis, Dodson was "a generally competent, but not exceptional, editor" with an "unrealistically high opinion of his own abilities." (DiGiovanni Aff. ¶ 18; CBS 56.1 Stmt. ¶ 19; Dkt. No. 36: Kentrianakis Aff. ¶¶ 10-11.) Dodson, on the other hand, asserts that because he had worked at major broadcasting stations since 1988, his technical knowledge and experience was greater than DiGiovanni's or Kentrianakis', as well as that of female employees Somers, Fontana, Burnette and Meadows. (Dodson 56.1 Stmt. ¶ 19.) CBS asserts that Dodson generally did not personally observe other editors performing their duties, given that he and the other editors worked independently or with CBS reporters. (CBS 56.1 Stmt. ¶ 20; Dodson Dep. at 78-80, 82-83, 86-87, 104-08, 279-80.) Dodson disputes CBS's assertion, asserting that CBS' editing rooms are enclosed with large glass windows or doors and that as an "Assistant Supervisor [he] had many opportunit[ie]s to observe the work, and work habits of other Editors." (Dodson 56.1 Stmt. ¶ 20; Dodson Aff. ¶ 10.)

  According to CBS, during 1998 through 2000, several WCBS reporters, including Vince Dementri, Kendra Farn, Emily Francis and Gary Apple complained to DiGiovanni that they did not want to work with Dodson because he was arrogant, conceited, and made the editing process "more stressful." (CBS 56.1 Stmt. ¶¶ 22-24; DiGiovanni Aff. ¶¶ 25, 70.) Other editors also complained about Dodson's behavior. (CBS 56.1 Stmt. ¶¶ 24, 30; DiGiovanni Aff. ¶¶ 23, 63-69, 75; Dkt. No. 32: Somers Aff.; Dkt. No. 32: Meadows Aff.) Kentrianakis told DiGiovanni that Dodson "made [him] nervous" when Dodson "arrogantly act[ed]" as if his work was under control, even when it was not. (Kentrianakis Aff. ¶ 23.) Dodson referred to himself as "Assistant Supervisor," even though CBS asserts that he had never been given that title or authority. (CBS 56.1 Stmt. ¶ 27; Kentrianakis Aff. ¶ 18; Dodson Dep. at 65-68.) Dodson maintains that he was in fact an Assistant Supervisor and should have been paid accordingly. (Dodson 56.1 Stmt. ¶ 27.)

  As a result of the complaints, DiGiovanni and Kentrianakis concluded that Dodson had poor interpersonal skills (CBS 56.1 Stmt. ¶ 25; Kentrianakis Aff. ¶¶ 20-24, 28, 30; DiGiovanni Aff. ¶¶ 19, 22) and "agreed that scheduling [Dodson] for primarily weekends was a way to limit the disruption his behavior could cause." (Kentrianakis Aff. ¶ 23; CBS 56.1 Stmt. ¶ 37; DiGiovanni Aff. ¶ 22.). To further limit Dodson's interaction with others, including reporters who had complained about him, DiGiovanni tried to assign Dodson tasks such as editing voiceovers, which "did not require interaction between the editor and the reporter, unlike . . . editing a news story." (DiGiovanni Aff. ¶ 26; CBS 56.1 Stmt. ¶ 38; Kentrianakis Aff. ¶ 24.) According to DiGiovanni, the voiceover assignments were in no way related to Dodson's gender or age, and on "many occasions" he had given voiceover assigments to "numerous male and female editors, including Lori Burnette, Jessica Somers, and Leslie Meadows." (DiGiovanni Aff. ¶¶ 26-29; CBS 56.1 Stmt. ¶ 62; Kentrianakis Aff. ¶¶ 25-26.) Dodson alleges that DiGiovanni "consist[e]ntly assigned [him] to do voice-overs, the simplest form of editing, while much less experienced female editors were assigned to more complicated work, such as cutting packages," i.e., editing news stories. (Dodson 56.1 Stmt. ¶ 17.)

  In February or March 2000, reporter and sports show host Gary Apple told DiGiovanni that he found Dodson arrogant and had difficulty working with him. (DiGiovanni Aff. ¶ 70; Kentrianakis Aff. ¶ 36.) According to DiGiovanni, "[a]round this same time," Kentrianakis suggested "transitioning the work" for Apple's show because Dodson was about to leave for an extended vacation. (DiGiovanni Aff. ¶¶ 71-72; Kentrianakis Aff. ¶ 37; CBS 56.1 Stmt. ¶ 66.) Kentrianakis "preferred to have permanent staff or 4.03(g) editors" to work on Apple's show specifically because permanent staff would "stay with the show until production was complete" and permanent staff were more reliable than per diems who could take work at other stations or take vacations at will. (Kentrianakis Aff. ¶ 37.) As a result of Apple's complaint and Kentrianakis' suggestion, DiGiovanni moved Dodson to an earlier Sunday shift and scheduled Burnette and Somers for the later shift that included Apple's show. (DiGiovanni Aff. ¶¶ 73-74; Kentrianakis Aff. ¶¶ 38-39; CBS 56.1 Stmt. ¶¶ 66-67.)

  DiGiovanni received an increasing number of complaints about Dodson in 2000. (DiGiovanni Aff. ¶ 63.) Specifically, DiGiovanni "received several complaints that Dodson made inappropriate sexual comments to women and others in the workplace on numerous occasions." (CBS 56.1 Stmt. ¶ 30; DiGiovanni Aff. ¶¶ 63-68; Kentrianakis Aff. ¶ 48.) Dodson denies the allegations of inappropriate sexual comments and notes that he was never informed about such complaints nor did any employee ever file complaints against him pursuant to CBS' sexual harassment policy. (Dodson 56.1 Stmt. ¶¶ 30, 34.)

  Jessica Somers was a per diem technician at CBS from May 1998 to May 1999 and returned as a 4.039(g) technician in February 2000. (Dkt. No. 32: Somers Aff. 1st ¶) Somers states that in 1998, when she was alone with Dodson, he "told [her] that it was `nice to see a co-worker with legs,'" and that "he was not used to working around women." (Somers Aff.2d ¶) Several months later, Dodson asked Somers why she had been avoiding him. (Id.) When Somers explained that Dodson's comment in the elevator upset her, he apologized. (Id.) In February 2000, Somers reported to DiGiovanni that Dodson "treated [her] in an openly hostile manner." (Somers Aff.3d ¶; CBS 56.1 Stmt. ¶ 32; DiGiovanni Aff. ¶¶ 64-66.) For example, when Somers walked past an editing room occupied by Dodson, "he would sometimes get up and slam the door as [she] went by." (Somers Aff.3d ¶) On another occasion, Dodson took Somers' name off the door of the room in which she was working and replaced it with his. (Id.) When Somers told Dodson that she did not like the way he was treating her, Dodson "pretended not to hear [Somers] and said `do you hear something' to a co-worker." (Id.) Somers reported Dodson's behavior, including the 1998 elevator incident, to DiGiovanni and asked DiGiovanni to remove her from the Saturday shift she shared with Dodson. (Somers Aff.3d ¶; DiGiovanni Aff. ¶¶ 64-66.) In light of Somers' complaints, DiGiovanni was even "more careful" when scheduling Dodson to limit his interaction with others. (DiGiovanni Aff. ¶ 66.)

  Dodson notes that Somers' affidavit describes only "one incident that [Somers] says occurred in 1998, for which she admits [Dodson] apologized and which could have no bearing on a decision to remove [Dodson] from the schedule, two years later." (Dodson 56.1 Stmt. ¶ 49.) Dodson explained the second incident, noting that because Somers arrived forty-five minutes late for work, Kremer had assigned Dodson to her editing room. (Dodson 56.1 Stmt. ¶ 32.) According to Dodson, Somers interrupted his conversation with Rossicone to say "`You don't want to mess with me today, I'm having a bad day, and I'm not in the mood.'" (Dodson 56.1 Stmt. ¶ 32.) At that point, Dodson asked Rossicone "`do you hear something,'" to which Somers replied "`I'm going to fix you, I'm going to tell Tony [DiGiovanni] what you said.'" (Dodson 56.1 Stmt. ¶ 32.) Regarding Somers' request that DiGiovanni remove Dodson from her Saturday shift, Dodson contends that Somers did not like working Saturday nights because it "interfered with her social life." (Dodson 56.1 Stmt. ¶ 33.)

  Per diem editor Leslie Meadow also complained to DiGiovanni that Dodson had made inappropriate comments to her. (Dkt. No. 32: Meadows Aff.2d ¶) Meadows stated that "on more than one occasion" Dodson referred to her and the other females supervised by Tony DiGiovanni as "Tony's Angels." (Meadows Aff.2d-3d ¶¶; CBS 56.1 Stmt. ¶ 35.) Meadows also reports that Dodson approached her in the hallway one night and complained about being scheduled for too few hours. (Meadows Aff.2d ¶) Referring to Meadows as one of "Tony's Angels," Dodson allegedly "pointed at [Meadows'] chest and said that [she] was getting more hours than he was . . . because of [her] `tits.'" (Meadows Aff.2d ¶ CBS 56.1 Stmt. ¶ 36; DiGiovanni Aff. ¶ 69.) According to Meadows, Dodson "moved his hands through the air in the form of a female figure."*fn7 (Meadows Aff.2d ¶ CBS 56.1 Stmt. ¶ 36; DiGiovanni Aff. ¶ 69.) Meadows reported the incident to union supervisor Scott Kremer and to DiGiovanni. (Meadows Aff.2d ¶) Meadows also testified that Dodson had told her that "he had visited nude beaches and had been with prostitutes," but did not recall when he made those statements. (Meadows Aff.3d ¶) Dodson admits that he told "most everyone" at CBS that he would be vacationing at a "clothing-optional resort." (Dodson Dep. at 298-301.)

  Dodson denies referring to Meadows and the other females as "Tony's Angels," but notes that it is not a derogatory term and reveals DiGiovanni's "preference for female editors." (Dodson 56.1 Stmt. ¶ 35.) Dodson also denies Meadows' allegation about the hallway incident. (Dodson 56.1 Stmt. ¶ 36.) According to Dodson, Meadows asked why she "had been getting the cold shoulder," and Dodson explained that "she came to CBS and got full weeks, while the rest of the male per diems, including [Dodson], had not been scheduled for full weeks for quite awhile, and that . . . was probably why." (Dodson 56.1 Stmt. ¶ 36.) Dodson believes Meadows "also was upset because [Dodson] knew that [Meadows] had gotten someone fired at ABC for sexual harassment." (Dodson 56.1 Stmt. ¶ 36.) Dodson also "opened up a lock-blade folding knife and brandished it in front of" Kentrianakis at least twice. (CBS 56.1 Stmt. ¶ 28; Kentrianakis Aff. ¶ 20; Dodson Dep. at 229-30.) Dodson admits to "carry[ing] on occaion a small utility knife," as most engineers and camera people do (Dodson 56.1 Stmt. ¶ 28), but according to Dodson, he showed the knife to Kentrianakis because Kentrianakis asked to see it, then admired it, and asked where he could buy one. (Dodson 56.1 Stmt. ¶ 28.) CBS also maintains that Dodson read gun magazines at work and spoke to Kentrianakis and others about guns and Dodson's plans to obtain a license to buy and sell guns. (CBS 56.1 Stmt. ¶ 29; Kentrianakis Aff. ¶ 21; Dodson Dep. at 273-76.) Dodson admits to bringing a National Rifle Association magazine to work, which he recalls was titled "American Hunter," but denies that he repeatedly spoke about guns or planned to buy and sell guns. (Dodson 56.1 Stmt. ¶ 29.)

  Kentrianakis told DiGiovanni that Dodson had returned to work "with alcohol on his breath" several times and that "other employees" told Kentrianakis that they had seen Dodson drinking at a nearby bar during breaks. (Kentrianakis Aff. ¶ 22; CBS 56.1 Stmt. ¶ 31; DiGiovanni Aff. ¶ 23.) Dodson admits that "on occasion, after crashing on a package, [he] used to have a beer to calm the adrenaline, after a hard do or die effort, but that was only after a meal." (Dodson 56.1 Stmt. ¶ 31.)

  Work Conditions

  Access to a "post-production room," which houses equipment used to add special effects to news stories, is limited to staff employees. (CBS 56.1 Stmt. ¶ 68.) According to DiGiovanni, per diem editors did not need to use the room to complete their regular duties and were not granted access. (DiGiovanni Aff. ¶ 33; CBS 56.1 Stmt. ¶ 68.) Upon Dodson's request, however, DiGiovanni allowed Dodson to use the post-production room and the keys to the room. (CBS & Dodson 56.1 Stmts. ¶ 69; DiGiovanni Aff. ¶ 33.) According to Dodson, however, DiGiovanni's permission was not in fact required to use the room because "everybody knew where the keys [to the room] were, in Mr. DiGiovanni's Desk." (Dodson 56.1 Stmt. ¶ 70.) DiGiovanni learned that for several consecutive weeks the equipment was left "improperly configured" and "in non-working condition," causing significant delays on Monday mornings. (CBS 56.1 Stmt. ¶ 71; DiGiovanni Aff. ¶ 34; Dkt. No. 35: Cannon Aff. ¶¶ 5-8.) In response, DiGiovanni again limited access to the post-production room to staff employees. (CBS 56.1 Stmt. ¶ 72; DiGiovanni Aff. ¶¶ 34-35; Cannon Aff. ¶ 8; Dodson Dep. at 129, 133.) Dodson denies the implication that he left the room in non-working condition, adding that he personally had to remove styrofoam cups and cigar and cigarette butts from the room. (Dodson 56.1 Stmt. ¶ 69.) Dodson concedes, however, that no per diem editors, male or female, were allowed to use the room. (Dodson Dep. at 133; Dodson Aff. ¶ 4.)

  Dodson claims that he "was often assigned to work in a small badly equipped room" that some referred to as the "broom closet" due to its size. (Dodson 56.1 Stmt. ¶¶ 17, 62.) CBS admits that Dodson occasionally was assigned to work in an editing room that was smaller than the other rooms. (CBS 56.1 Stmt. ¶ 73; Dodson Dep. at 126-27.) Dodson took offense to the room assignment because "[t]his would be a room, that you would put a `new' editor in, not an experienced editor like myself, it was also embarrassing." (Dodson 56.1 Stmt. ¶¶ 62, 73.) Dodson "never saw any female editor working in, or assigned to that room, during [his] entire employ at CBS." (Dodson 56.1 Stmt. ¶ 62.) CBS states that female per diem editors, including Burnette and Somers, were assigned to this editing room. (CBS 56.1 Stmt. ¶ 74; DiGiovanni Aff. ¶¶ 31-32.) Dodson contends that neither he nor anyone he spoke to "ever saw any female edit[]ors work in that small, little room. Nor did [Dodson] ever see anyone else work in that room including male editors, except for [him]self." (Dodson 56.1 Stmt. ¶ 74.)

  Staff Editor Hiring

  According to DiGiovanni and Kentrianakis, Dodson was not qualified for a 4.03(g) or "staff" position at CBS because Dodson's "technical skills were average, his behavior was occasionally disruptive and inappropriate and [DiGiovanni and Kentrianakis] felt that Dodson was conceited, arrogant and otherwise had poor interpersonal skills." (CBS 56.1 Stmt. ¶ 54; DiGiovanni Aff. ¶ 36; Kentrianakis Aff. ¶ 28.) When a 4.03(g) position opened in October 1998, DiGiovanni and then-Technical Operations Manager Mark Weiner selected Holly Fontana.*fn8 (CBS 56.1 Stmt. ¶ 55; DiGiovanni Aff. ¶ 37 & Ex. L: 10/05/98 CBS Personnel Action Notice.) Fontana was a per diem editor ...


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