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Doherty v. Nederlander Producing Co.

August 4, 2006


The opinion of the court was delivered by: Laura Taylor Swain, U.S.D.J.


In this employment discrimination action, Plaintiff Carol Doherty ("Doherty" or "Plaintiff '), a former usher at the Marquis Theater in Manhattan at 1535 Broadway, alleges that Defendant Nederlander Producing Company ("Nederlander" or "Defendant"), her former employer, neglected to take action to remedy a hostile work environment and fired her in retaliation for reporting such environment in violation of Title VII of the Civil Rights Acts of 1964, as amended ("Title VII"), 42 U.S.C. section 2000e et seq. Plaintiff makes additional claims for relief under 42 U.S.C. section 1981,42 U.S.C. section 1985 and 42 U.S.C. section 1988. Plaintiff also makes a claim of intentional infliction of emotional distress. The Court has subject matter jurisdiction of the federal law claims pursuant to 28 U.S.C. section 133 1.

Defendant moves for summary judgment dismissing Plaintiffs complaint in its entirety. The Court has reviewed and considered carefilly all of the parties' submissions and arguments. For the reasons that follow, Defendant's motion is granted, and the federal law claims asserted in Plaintiffs complaint are dismissed. In light of this disposition of the federal claims, the Court declines to exercise supplemental jurisdiction over the state law claim for intentional infliction of emotional distress.


The following material facts are undisputed unless otherwise stated.*fn1 Carol Doherty was employed by Nederlander as an usher at the Marquis Theatre fiom some point before 1989 until November 2002. (Defs.' Local Rule 56.1 Statement ("Def. 56.1") § 1.) She was an at-will employee. Id. James Johnson ("Johnson") also worked for Nederlander at the Marquis Theatre. (Id at § 2.) He worked as a ticket taker at the theater between 1992 and November 2002; Johnson never had any supervisory authority over Doherty. (Id Doherty's supervisors during the time period encompassing the incidents alleged in her complaint were Timothy Pettolina (Assistant House Manager fiom March 1996-July 2002 and thereafter House Manager), David Calhoun (House Manager fiom 1994 to July 2002), and Rosaire ("Lulu") Caso (Head Usherette since 1989). a at § 3 .)

Plaintiff became friends with Johnson in 2000. (Deposition of Carol Doherty ("Doherty Dep.") 69-70.) They engaged in a consensual romantic relationship for several months in 2001. (Def. 56.1 § 4; Doherty Dep. 70.) They saw each other "all the time at work" and socially outside of work. (Def. 56.1 § 4; Doherty Dep. 70-7 1 .) Doherty stayed at Johnson's apartment "a few times," and Johnson treated her to dinner and to movies. (Def. 56.1 § 4; Doherty Dep. 7 1-72.) While they were dating, Plaintiff and James Johnson had a few disagreements. (Def. 56.1 § 5; Doherty Dep. 75-76.) Sometimes during these disagreements, they would not speak to each other for periods of up to two weeks. (DR56.1 §§ 5, 8; Doherty Dep. 76.) Doherty claims to have ended the relationship in November 2001. (Pl.'s Counterstatement of Facts ("Counterstatement") § 5.) Doherty also claims that Johnson "refised to accept the termination of the relationship and insisted that the relationship was still on" and, "[s]hortly thereafter being spumed by Plaintiff,'' commenced a course of conduct that Plaintiff characterizes as consisting of sexual harassment. (Id § 6-7.) Doherty alleges that, between the breakup and June 2002, Johnson began harassing her by, inter alia, making phone calls, making comments regarding her personal life, engaging in "surveillance" of her, and by calling her names and using obscenities in reference to her. (Id. § 7; Doherty Dep. 79, 8 1-5, 100, 120, 125- 6.)

In June 2002, there was a physical altercation between Doherty and Johnson in the Marquis Theatre. (Def. 56.1 § 9, Counterstatement § 7h.) There were no witnesses to the incident, and Doherty and Johnson each gave conflicting accounts of what had happened. (Def. 56.1 § 10.) After receiving these conflicting accounts, David Calhoun, the House Manager, discussed the incident with Herschel Waxman, Senior Vice President of Labor Relations for Nederlander and Susan Martin, Business Agent and Union Representative for Local 306, the union for ushers and ticket takers. (Def. 56.1 § 11 .) They reached the conclusion that both employees were at fault and ultimately decided that both Johnson and Doherty should be suspended but would be allowed to work at different theaters during the period of their suspension. (IdJ At this point, Plaintiff told Calhoun that Johnson had been calling her at home or that he would call members of her family. (Affidavit of David Calhoun ("Calhoun Aff.") § 10.) According to Mr. Calhoun, she did not claim that these phone calls were affecting her work. Id. Plaintiff characterizes her complaint differently, asserting that she also complained about a theft of her cell phone and "sexual harassment." (Counterstatement § 13.)

Doherty and Johnson returned to work at the Marquis Theatre in July 2002. Employees who provided affidavit testimony stated that it was their impression that the Plaintiff and Johnson had resumed their tumultuous "relationship andlor fiendship." (Def. 56.1 f 12; Affidavit of Rosaire Caso ("Caso Affidavit") 7 8; Affidavit of Jamie Fritze ("Fritze Aff.") f 7; Affidavit of Barbara Newsome ("Newsome Aff.") 7/14, 10; Affidavit of Rita Smith ("Smith Aff.") 17 15-16.) Plaintiff asserts that, after they returned to work, Johnson would refer to her using profane language when she did not want to talk to him, although she admits responding to these comments with more profanity. (Doherty Dep. 153-56). She asserts that Johnson continued to ask questions and make comments about her personal life and his desire to pursue sexual relations with her, id. at 125-26, and that to talk to her he would grab her arm. (a at 130.) Plaintiff also alleges that Johnson would send text messages to her on her new boyfhend's cell phone. (Id. at 1 6 1 .)

Plaintiff spoke to Ms. Caso regarding these occurrences once after her return from suspension. (Def. 56.1 7 25; Doherty Dep. 156-7.) The conversation occurred a few weeks after Doherty's return, and Caso told Doherty and Johnson to stay away fi-om each other. (Def. 56.1 § 25; Doherty Dep. at 121; Caso Aff. § 8.) According to Caso, early on November 9,2002, Plaintiff attempted to show her some text messages that Plaintiff had received fiom Mr. Johnson, but Caso was too busy to understand exactly what Doherty was trying to tell her. (Caso Aff. § 9.) Doherty does not remember complaining to Pettolina on any specific occasion. (Doherty Dep. 225.) Calhoun was not working at the theater after July. (Def. 56.1 § 3.)

On November 9,2002, Doherty and Johnson were engaged in several physical altercations on and around the theatre property. The first altercation occurred in the breezeway outside the Marquis Hotel. (Def. 56.1 § 14.) There were conflicting accounts of what transpired. (Id. at § 15.) The fight was broken up by hotel security guards. (Doherty Dep. 175.) As a result of the fight, Mr. Johnson had a scratch on his face. (Id. at 180; Def. 56.1 § 14; Caso Aff. § 11; Newsome Aff § 12; Smith Aff. § 20.) According to several witnesses, a second altercation ensued in the ushers' room. (Def. 56.1 § 16; Caso Aff. § 11; Newsome Aff. § 12; Smith Aff § 20.) The altercation was primarily a verbal exchange. (Def 56.1 § 16; Caso Aff. § 11 ; Smith Aff. § 20.) However, witnesses said that Doherty had to be held back because she was trying to lunge at Johnson and that both made threats toward each other. (Caso Aff. § 11; Smith Aff § 20.)

The third altercation took place in the breeze way, and a New York police officer, John O'Gormon, was summoned to the scene. (Def. 56.1 § 17-1 8.) There are differing accounts of what happened during the altercation. By the time Officer O'Gormon arrived on the scene, he saw only a verbal altercation. (Affidavit of John O'Gormon ("O'Gormon Aff.") at § 9.)

Ultimately he decided not to charge either Doherty or Johnson. Id. at § 10.) Doherty claims that Johnson swung at and hit her with his motorcycle helmet and then physically restrained her. (Doherty Dep. 182.) She also claims that she did not physically attack or physically or verbally threaten him in any way. (Id. Other employees assert that Plaintiff flicked cigarette ashes at Johnson and spat on him. (Fitze Aff. § 6; Newsome Aff. § 13.) They also allege that Doherty was an active participant in the verbal altercation and that she used foul language. (Fitze Aff. § 6; Newsome Aff. § 13.) At least one employee witness does not believe that Doherty was actually hit by the motorcycle helmet. (Fitze Aff. § 6.) These factual disputes as to the details of the incident are not material.

After the incidents on November 9, Timothy Pettolina, the House Manager, conducted an investigation to determine what had happened, and determined that Doherty was at least partly at fault. (Def. 56.1 § 20.) Doherty told him after the incident that Johnson had been sending her text messages. (Pettolina Aff. § 11.)

Herschel Waxman made the decision to fire Ms. Doherty after hearing about the incidents of November 9. (Def. 56.1 1 21 ; Waxman Aff. § 5; Pettolina Aff. §§ 12-13.) Plaintiff had never complained to Waxman about any alleged harassment. (Def. 56.1 § 22; Doherty Dep. 232.) Waxman was not aware of any such complaints at the time he made the decision to terminate her employment. (Def. 56.1 § 23; Waxman Aff. § 6.) Johnson's employment was also terminated after ...

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