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Janneh v. Regal Entertainment Group

September 8, 2009

DOUDOU B. JANNEH, PLAINTIFF,
v.
REGAL ENTERTAINMENT GROUP, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiff Doudou Janneh ("Janneh" of "Plaintiff") commenced this action pro se alleging various discrimination claims against his former employer Regal Entertainment Group. See Complaint [dkt # 1]. Previously, this Court dismissed a number of Plaintiff's claims, leaving Plaintiff's Title VII and ADEA discriminatory suspension and failure to promote claims, and Plaintiff's Section 1981 discriminatory discharge claim. See Dec. & Ord [dkt. # 36].*fn1 Presently before the Court are: (1) Defendant's motion for summary judgment, see Def. Mot. [dkt. # 58]; (2) Plaintiff's cross-motion for summary judgment, see Pl. Mot. [dkt. # 67]; and (3) Plaintiff's renewed motion for appointment of counsel. [dkt. # 66]. For the reasons that follow, Defendant's motion is granted and Plaintiff's motions are denied.

II. STANDARD OF REVIEW

Janneh is no stranger to employment discrimination actions, having been a plaintiff in at least ten prior employment discrimination cases in this District, the majority of which he has proceeded in pro se . See Janneh v. Manpower Inc. of N.Y., 3:01-CV-1178 (N.D.N.Y.)(09/26/03 Dec. & Ord. [dkt. # 63]), aff'd 101 Fed. Appx. 368, 2004 WL 1406308 (2d Cir. 2004)(unpublished Summary Order), mot. to file out-of-time cert. pet. denied, 544 U.S. 972, 125 S.Ct. 1829 (Mem), 161 L.Ed.2d 722 (2005). The Court will apply the well settled standard for summary judgment, including application of this Court's Local Rules, which has been set forth in detail in decisions in several of Janneh's prior cases. See e.g. Manpower, 09/26/03 Dec. & Ord. pp. 4-10; id., p. 3, n. 2;*fn2 Janneh v. Endvest, Inc., 01-CV-0144 (N.D.N.Y.)(07/23/02 Dec. & Ord. [dkt. # 80] pp. 4-8), aff'd, 64 Fed. Appx. 814, 2003 WL 21025162 (2d Cir. 2003)(unpublished Summary Order), cert. denied, 546 U.S. 844, 126 S.Ct. 369 (Mem), 163 L.Ed.2d 108 (2005).

III. BACKGROUND

Unless indicated otherwise, the following facts are undisputed for purposes of the pending motions.*fn3

a. Plaintiff's Work History

Janneh began working for Hoyts Cinemas, the predecessor to Regal Cinemas ("Regal"), on October 22, 1999. Janneh was hired by Eric Larkin, Hoyts Cinemas' Binghamton, N.Y. theater general manager. Plaintiff's position was as a floor staff employee. His duties included taking tickets, assisting customers, cleaning the theater, and working in the concession stands. Janneh worked about three 4-hour shifts per week.

In March 2003, Hoyts Cinemas was purchased by Regal. Regal continued operation of many of Hoyts Cinemas' theaters, including the theater in Binghamton. Once Regal took over Hoyts Cinemas, the former Hoyts Cinemas employees became Regal employees and remained in their same positions. For instance, Eric Larkin remained as the Binghamton theater manger and Plaintiff remained as a member of the floor staff in Binghamton. Janneh's hours, pay and job duties remained the same after Regal took over operations of the Binghamton theater. Regal also determined to deem all projectionists and all employees who had supervisory responsibilities with Hoyts Cinemas as "assistant managers" with Regal. Janneh was not deemed an assistant manger because he was not a projectionist and did not have supervisory responsibilities when Regal purchased Hoyts Cinemas.

As a Regal employee, Janneh received the Regal Staff Orientation Manual ("Handbook"). This contained Regal's employment policies. The attendance policy requires an employee who is going to be absent from a scheduled shift to "call in" prior to the absence. The policy also provides that any employee who is absent for two or more shifts without "calling in" is deemed to have voluntarily resigned.

The personal conduct policy proscribes verbal or physical altercations and horseplay among employees. This policy provides for the immediate suspension of an employee during an investigation into any allegation concerning a physical or verbal altercation.

The Handbook also describes Regal's "four-step disciplinary policy." The four steps in this policy consist of verbal counseling (step one), written counseling (step two), final written counseling (step three), and termination (step four). Although progressive in nature, the policy specifically provides that the level of discipline used ( i.e . the step used) will be determined by the nature of the infraction and "at the discretion of management where it is believed that such use will be in the best interest of the Company . . . ."

Regal's promotion policy provides that, whenever possible, vacancies will be filled from within Regal. However, the policy also provides that the most qualified applicant will be hired for every position.

Janneh signed an acknowledgment that he had reviewed the Handbook and that he agreed to abide by its policies. Further, a copy of the Handbook was kept in the employee break room and was available to employees at all times.

b. Disciplinary History

1. Customer Complaint

In March 2004, a customer filed a complaint alleging that, while the customer was buying a ticket, Janneh called the customer a "f * * king Jew." Regal investigated and took statements from both the customer and Janneh. Janneh denied the customer's accusation. Because there were no witnesses to the event, Regal closed the matter as "non-determinative." Janneh was not disciplined or suspended as a result of the investigation, and he worked his regular hours and received his regular pay during and after the investigation.

2. Co-worker Complaint

On October 17, 2004, a sixteen-year-old female co-worker, Molly McGouff, reported that Janneh had harassed her at work by forcefully pulling the hood on her sweatshirt and, when she told him to stop, by punching or pushing her in the shoulder causing her to stumble. McGouff was very upset by the incident.

Theater Manager Larkin conducted a preliminary investigation and obtained written statements from McGouff and co-employees Raphaella Richardson, Kristy Webb, Jordon Schmidt, Emily Lukasik, and Michael Kaminsky. These witnesses asserted that, as the employees were punching out by swiping their employee cards through an electronic reading device, Janneh was having difficulty with his card. Richardson and McGouff told Janneh to swipe his card slower. Janneh appeared to become upset and mumbled something that the others did not understand. McGouff then put on her sweatshirt and started to walk away. Janneh pulled McGouff's hood with enough force to stop McGouff and pull her backward. McGouff became angry and told Janneh not to touch her. Janneh then pushed or punched McGouff in the shoulder with sufficient force to cause McGouff to stumble. Richardson then yelled at Janneh and told him not to touch McGouff.*fn4 The group of employees then got on the elevator to leave but, when Janneh also got on the elevator, McGouff and Richardson got off and took the stairs. On the elevator, Janneh said something about the incident and Schmidt told him to "shut up." Janneh than raised his fist and made a slow punching motion, stopping his fist in front of Schmidt's face. Janneh said something to the effect of: "When I do that you fall down and you're dead."

McGouff and Lukasik also reported that, for approximately three weeks before the October 17 incident, Janneh had repeatedly told McGouff to "show" Janneh "her moves." *fn5 McGouff did not report this conduct because she thought Janneh was joking and, instead, simply ignored his statements.

Janneh submitted a statement in which he asserted:

On October 17, 2004, I was riding on the elevator with other employees during the end of the shift [] when me and Molly started playing around as we normally do. I did pull her sweatshirt and said to her show me your best move. I did not push Molly at all as the allegations are false, untrue, and incorrect, as it is a pretext of conspiracy.

Larkin sent the statements to Regal's Human Resources Department and he was advised by his district manager, Tom Harrigan, that Janneh should be suspended pending an investigation by the Human Resource Department. Janneh was suspended and Regal concluded its investigation in December 2004,*fn6 finding that Janneh had exhibited inappropriate workplace behavior. Janneh was returned to work with a Step Two written warning.

3. Failure to "Call In"

In March 2005, Janneh received a Step Three written warning when he failed to show up for his shift and did not call in to report that he would be absent. Janneh admitted that he did not "call in" as required by Regal's policy. Janneh was not suspended as a result of this incident.

c. Denial of Promotions

Janneh claims that, because of considerations of his race, national origin, or age, he was denied promotions to various assistant manager ...


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