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Riscili v. Gibson Guitar Corp.

March 26, 2009


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff Patrick "Daniel" Riscili, a gay man, was fired by Gibson Guitar Corp. ("Gibson") after he complained about a co-worker who mocked his sexual orientation at a company-sponsored after work function. The parties disagree about why. While Riscili sees a link between his complaints and his later termination, Gibson contends that Riscili was fired because he could not adjust to its entrepreneurial corporate culture. Gibson has moved for summary judgment. For the reasons that follow, Gibson's motion is denied as to Riscili's retaliation claim, but granted as to Riscili's discrimination claim.


Viewed in the light most favorable to Riscili, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the record shows the following.

A. Parties

Riscili worked as an "entertainment representative," first at Baldwin Pianos ("Old Baldwin") and then at Gibson. (Def.'s R. 56.1 Stmt. ¶¶ 1-2.) His job principally involved lending pianos to musicians or musical venues as a means of promoting the Baldwin Pianos brand. Riscili, for example, negotiated contracts with musical venues whereby Gibson agreed to provide free pianos in exchange for exposure to a national audience. (See, e.g., Riscili Depo. 17-18, 23.) Gibson, a Delaware corporation that has its principal place of business in Nashville, Tennessee, manufactures and markets musical instruments. (See Notice of Removal, at 2 (Sept. 20, 2006).) The other named defendants are divisions of Gibson. (Def.'s R. 56.1 Stmt. 1 n.1.)

B. Gibson's Purchase of Old Baldwin

Sometime in the fall of 2001, Gibson purchased Old Baldwin in bankruptcy. (Def.'s R. 56.1 Stmt. ¶ 2.) Shortly thereafter, Gibson hired several Old Baldwin employees including Riscili into positions similar to those they held at Old Baldwin. (Id. ¶ 6.) At first, Riscili worked out his apartment in New York and reported to Joe Vitti, another employee hired from Baldwin. (Riscili Depo. 46-47.) Vitti, in turn, reported to Gibson's CEO, Henry Juszkiewicz. (Def.'s R. 56.1 Stmt. ¶ 7.)

In the summer of 2002, both Riscili and Vitti began reporting to Pat Foley, the world director of Gibson's artist division. (Def.'s R. 56.1 Stmt. ¶ 8.) At about the same time, Riscili began working out of the "Hit Factory" building on 54th Street in Manhattan. (Id.) Although Old Baldwin had been forced to leave this building because of its failure to pay rent, Riscili, at Juszkiewicz's request, arranged for Gibson to open a showroom and offices there. (Riscili Depo. 58.) A few months after Riscili moved to the Hit Factory, he began reporting to Nina Miller, the manager of Gibson's Entertainment Relations division. (Def.'s R. 56.1 Stmt. ¶ 12.) Two other entertainment representatives, Lou Vito and Jimmy Archey, also worked out of the Hit Factory, as did Archey's wife, Diane Mahiques, Gibson's New York office manager. (Id. ¶ 10.) Miller apparently did not work out of the Hit Factory. (See Riscili Depo. 93-94.)

The record suggests that at least until the beginning of 2003, Riscili was well regarded by his peers and supervisors. On August 29, 2002, for example, Juszkiewicz sent Riscili an email in response to Riscili's "Daily Report" of the previous day that stated: "Dan: You are continually doing great work. Very much appreciated by every[one]. Thank you !!!" (Ex. C. to Decl. of Karim H. Kamal (May 5, 2008) (paragraph breaks omitted).) Nina Miller, Riscili's supervisor during the events at issue in this lawsuit, testified that Riscili "was good at doing the things he had done when he was employed by Baldwin Piano before they were acquired by Gibson." (Miller Depo. 13.)

C. The Events of April 2, 2003

On April 2, 2003, Riscili represented Gibson at a reception sponsored by the company to celebrate the opening of the movie What a Girl Wants. (Riscili Depo. 68.) Michael John LaChiusa, a librettist and client of Gibson's who is gay, accompanied Riscili to the reception. (See id. at 75; Ex. B to Decl. of Karim H. Kamal, at 2-3 ("LaChiusa Stmt.").)

At some point between 8:00 and 9:00 p.m., LaChiusa and Riscili were talking to Lou Vito, two or three members of a band, and the band members' "lady friends." (Riscili Depo. 78-79.) LaChiusa left the group. (LaChiusa Stmt. 2.) Shortly thereafter, LaChiusa caught Riscili's eye and indicated that something was happening behind Riscili's back. (Riscili Depo. 78-79.) Riscili turned around to find Vito imitating him in a derogatory manner. (Id.) LaChiusa stated that "[he] saw directly behind Danny this Vito mimicking with hand movements and facial gestures indicating in no uncertain terms and a derogatory fashion that he was mocking the fact that Danny was gay." (LaChiusa Decl. 2.) Riscili testified that Vito's imitation of him "was exaggerated and it was very offensive . . . . [T]he joke was on me and he was doing it in front of his band, who I just met and I had been in conversation with . . . for the past, you know, five minutes." (Riscili Depo. 81.) Offended and feeling that he was in a homophobic environment, LaChiusa left the reception. (LaChiusa Stmt. 3.) After attempting to say goodbye to Juszkiewicz, Riscili also left. (Riscili Depo. 84.) He did not confront Vito, because he didn't want to make a scene in front of Gibson's clients. (Id. at 84.)

D. Subsequent Events

When Riscili arrived at work the next day, the officer manager, Diana Mahiques, asked him how the reception went. (Id. at 87-88.)*fn1 Riscili told her what happened, but asked her not to report Vito's behavior to Gibson management since he preferred to confront Vito informally. (Riscili Depo. 93.) Despite the request, Mahiques reported the incident to Nina Miller, who was both Riscili's and Vito's supervisor. (Id. at 93-94.) According to Riscili, Miller called him and asked him what he intended to do. Riscili told her he would address the matter privately with Vito. Miller said she would get back to him. (Id. at 94, 97.) Miller testified that she has no recollection of this phone call. (Miller Depo. 57.)

Later that day, Vito came to Riscili's office and told him that he did not intend to offend him. (Riscili Depo. 95.) Riscili, thinking Vito was a "fool," told him something to the effect that "we got to work together, Lou, you know, this was offensive." (Id.) Vito apologized, but Riscili did not find him sincere. (Id. at 96.)

News of Vito's behavior and Riscili's response spread quickly through Gibson's offices. Later in the day, a co-worker from Gibson's Los Angeles office called Riscili and told him "we hear Lou's up to it again"-an apparent reference to Vito's history of offensive behavior toward gay employees. (Id. at 104-05.) Riscili testified that "Diane let everyone in the entire company know, guaranteed." (Id. at 104.)

Riscili testified that after the incident with Vito, his relationship with his co-workers and supervisors soured. As Riscili remembers it, the "dialogue" that was essential to his job ended: "I wasn't told anything. . . . . I was told nothing. They basically stopped listening to what I was saying." (Id. at 130; see also id. at 124-25.) In addition, Riscili identified three specific instances where he felt that Gibson had retaliated against him for complaining about Vito's behavior. First, beginning immediately after the incident, Riscili's superiors began to object to his "daily reports," emails in which Riscili reported on his contacts with musicians and venues. (See id. at 145.) At about the same time, Riscili's superiors began pressuring him to retrieve and account for pianos stored in warehouses throughout New York City that Gibson used for storage. (Id. at 117.) Riscili claims, however, that he was never provided with a budget to pay the warehouse's bills or to pay off warehouseman's liens on the pianos. (See id. at 117.)*fn2 Finally, in July 2003, Riscili's superiors refused to authorize the delivery of pianos for a jazz festival in Los Angeles, although Gibson had signed a contract and committed to delivering pianos to the festival. (See Riscili Depo. 115-16.) Gibson contends that each of these actions was supported by a legitimate nondiscriminatory, nonretaliatory business reason. (See Def.'s R. 56.1 Stmt. ¶¶ 50-51 (contacts listed in Riscili's daily emails were mostly from Old Baldwin); ¶ 39 (Riscili was having difficulty negotiating with warehouses); id ¶ 46 (Riscili never obtained approval to loan pianos to Los Angeles festival).)

On June 17, 2003, Juszkiewicz sent Riscili an email complaining that Riscili had failed to add pop, rock or "other genre" artists to Gibson's roster. (Ex. D. to Decl. of Karim H. Kamal.) The email closed on an ominous note: "Either you move us forward rapidly, or we must find someone who can." (Id.) Riscili replied the same day, noting that he was working to sign Linkin Park, and that ...

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