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Charles E. Male v. Tops Markets

June 21, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action alleging retaliation, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. Now before the Court is Defendant's motion [#10] for summary judgment. The application is granted.


Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most-favorable to Plaintiff. Charles Male ("Plaintiff") was employed by Tops Markets ("Defendant") from 1992 until October 14, 2008, when Defendant terminated his employment. At all relevant times, Plaintiff held the position of "Nonperishable Manager" at Store 410. As the title implies, Plaintiff was in charge of non-perishable grocery items at his assigned store location, and he also had supervisory authority over grocery clerks. Plaintiff was essentially the third-in-command at Store 410, below the Store Manager, Trish O'Connell ("O'Connell"), and the Assistant Manager, Doug Linborg ("Linborg"). Before the termination of his employment, Plaintiff had no disciplinary complaints against him.

Prior to July 2007, Plaintiff's wife, Julie Male ("Mrs. Male"), was also employed by Defendant, at a different store. In January 2006, Mrs. Male left work on disability, and has never returned. In June 2006, Mrs. Male filed an EEOC complaint against Defendant, alleging that Defendant discriminated against her, in violation of the Americans with Disabilities Act ("ADA"), by refusing to accommodate her physical limitations. Notably, Mrs. Male did not allege that the supposed discrimination had anything to do with her race, color, religion, sex, or national origin. On July 23, 2007, Defendant terminated Mrs. Male's employment. In November 2007, Mrs. Male commenced a discrimination lawsuit against Defendant in this Court, alleging discrimination and retaliation under the ADA*fn1 , which was assigned to the Honorable Michael A. Telesca, Senior United States District Judge. On April 22, 2008, Judge Telesca dismissed that action for failure to state a claim. On April 14, 2008, Mrs. Male filed a second EEOC complaint, alleging that Defendant was retaliating against her by providing negative information about her to prospective employers. Apparently, Mrs. Male made such allegation based not on any affirmative information that Defendant was so acting, but because she simply had not been hired by anyone. See, Pl. Exhibits, Vol. II, Ex. B. Curiously, this second EEOC complaint alleged retaliation under Title VII, even though, as noted earlier, her protected activity involved complaining about alleged disability discrimination, not discrimination based on race, color, religion, sex, or national origin. On May 29, 2008, Mrs. Male commenced a second discrimination lawsuit in this Court, which was also assigned to Judge Telesca, and which is still pending.*fn2 The Complaint in that action alleges that Mrs. Male suffered from certain mental and physical disabilities, for which Defendant failed to provide reasonable accommodation, and for which Defendant deemed her unable to perform the essential functions of her job. See, Male v. Tops Markets, LLC, 08-CV-6234 MAT, Docket No. [#1]. The Complaint also asserts retaliation under Title VII.*fn3 In the instant lawsuit, Plaintiff maintains that

Defendant terminated his employment in retaliation for the protected activity by his wife*fn4 , as well as in retaliation for his reporting incidents of sexual harassment involving other employees, as discussed below. Defendant, however, contends that its decision to terminate Plaintiff's employment was not retaliatory, and was based solely on Plaintiff's own inappropriate comments to a female subordinate.

The incident which resulted in the termination of Plaintiff's employment occurred in September 2008. Prior to that, Plaintiff had been involved, in his supervisory capacity, in responding to alleged sexual harassment involving other employees on four occasions.*fn5 The first incident, which occurred in or around 1998,*fn6 involved a male assistant manager who was flirtatious toward female co-workers. Plaintiff spoke to the male employee about his conduct several times, and also reported the situation to his district manager, Mike Herner ("Herner"). The second incident, which occurred in or about 2006*fn7 , involved a female associate who complained about a male co-worker, who was in the habit of discussing his sexual activities. Plaintiff reported the matter to Defendant's Human Resources Director, Denise Rachow ("Rachow"), and he subsequently spoke to the male co-worker and directed him not to discuss his sexual activities with his co-workers. The third incident, which occurred in or about the Spring of 2008*fn8 , involved a male employee who made an offensive remark about a female employee's body. Another male employee heard the comment, and reported it to O'Connell. Plaintiff subsequently took a written statement from the female employee about the incident, and gave it to O'Connell, after which he had no further involvement in the incident.

The fourth incident occurred in September 2008, and involved allegations of sexual harassment by a male employee against Samantha Jensen ("Jensen"), an Assistant Customer Service Representative at Store 410 over whom Plaintiff did not have direct supervisory authority. Plaintiff states that he had a friendly relationship with Jensen, and that she often talked to him, and to others at the store, about her personal life. Plaintiff indicates, for example, that Jensen told him that her husband had been convicted of a sexual offense and was listed on a sex-offender registry. Subsequently, in or about September 2008, Jensen told Plaintiff that her husband was upset because a male co-worker, with whom she had previously had a relationship, kept asking her on dates, and that her husband was threatening to harm the co-worker if he did not stop. Plaintiff told Jensen to report the matter as sexual harassment to O'Connell, but Jensen replied that she would not do so, because the male co-worker was a nice man whom she did not want to get into trouble. Plaintiff responded that he had an obligation to report the matter to O'Connell, and he later did so. However, Plaintiff also told Jensen that in his opinion, it appeared that she was following the male co-worker around the store and finding opportunities to spend time with him, not vice versa. Pl. Dep. at 105-106. After Plaintiff related the information to O'Connell, she responded that she "would take care of it" by talking to Jensen. Plaintiff does not know whether anything further happened concerning the situation.

A few weeks later, the incident occurred for which Plaintiff was purportedly terminated. Specifically, on or about September 24, 2008, Plaintiff and Jensen had a conversation in the manager's office at Store 410. Another employee, Laurie Parnusie ("Parnusie"), was also present during part of the conversation. Plaintiff told Jensen that he was upset because a convicted pedophile lived near Plaintiff's home. Plaintiff told Jensen that he was driving his children to school, because he did not want them to use a bus stop which was near the pedophile's residence. As mentioned above, Plaintiff was already aware that Jensen's husband was a registered sex offender. However, Plaintiff maintains that during this conversation, he did not make any disparaging comments about Jensen's husband. In particular, Plaintiff denies that he called Jensen's husband a pedophile or a loser. Plaintiff admits, though, that he asked Jensen whether she was concerned about her husband harming her daughter, because Jensen seemed "nervous [that] something was going wrong between her husband and daughter." Pl. Dep. at 124-125. Plaintiff also denies that he called Jensen "crazy" or a "bad mother." However, he acknowledges that, either during this same conversation or during another conversation in September 2008, Jensen told him that she left her daughter alone at home after school, and he responded that she should not do that, because it was illegal, and it could harm her chances of obtaining custody of another one of her children. Id. 178-179, 184-185. Plaintiff did not think that there was anything inappropriate about his comments, because he had a friendly relationship with Jensen, and because Jensen openly discussed her personal life.

On September 29, 2008, unbeknownst to Plaintiff, Jensen complained about him to Linborg. Specifically, Jensen told Linborg that during the September 24, 2008, conversation, Plaintiff made several disparaging comments about her husband. Rachow Aff. ¶ 13. Linborg did not immediately notify O'Connell about the complaint, because O'Connell was on vacation. Linborg also did not notify Plaintiff about Jensen's complaint.

On the following day, September 30, 2008, Plaintiff received a phone call at work from Jensen's husband, Earl Jensen ("Mr. Jensen"). According to Plaintiff, Mr. Jensen said that "he was sick and tired of his wife coming home and complaining about [Plaintiff] yelling at her, making fun of her and making fun of her family life." Pl. Dep. at 148. Mr. Jensen further stated that Plaintiff should "stay away from [his] wife, don't look at her, don't talk to her," and that if Plaintiff did not, there would be "very serious repercussions." Id. Immediately thereafter, Plaintiff called Linborg, his direct supervisor. At deposition, Plaintiff indicted, without elaborating, that he told Linborg "the whole story" concerning the phone call, and that Linborg told him to "drop it" and "not worry about it." Id. at 152. Plaintiff also sent an email to O'Connell, indicating that he had something to tell her when she returned from vacation.

On or about October 3, 2008, O'Connell returned from vacation, and Plaintiff told her about the phone call from Mr. Jensen. According to Plaintiff, O'Connell asked him if he remembered saying anything to Jensen or Mr. Jensen that might have provoked the phone call, and Plaintiff responded, "No." Pl. Dep. at 162. Plaintiff indicates that O'Connell told him, "[Don't] worry about it. Drop it." Id. at 170.

Also on October 3, 2008, and again unbeknownst to Plaintiff, Linborg notified Rachow about Jensen's complaint, and Rachow began an investigation. Rachow Aff. at ¶ ¶ 12-14. Rachow telephoned Jensen, who indicated that Plaintiff made the following statements to her: 1) Plaintiff complained about a pedophile living near him, and brought up the fact that Jensen's husband had been convicted of a sexual crime involving a minor; 2) Plaintiff said Jensen was "fucking crazy" for marrying such a "loser," and that in her relationships with men she went from "one loser to another"; 3) Plaintiff said, referring to Mr. Jensen, "once a pedophile, always a pedophile," and asked Jensen if she wasn't worried that her husband would harm her daughter; and 4) Plaintiff said that Jensen was a bad mother for leaving her daughter home alone after school, and she should see a "shrink" because "there is obviously something wrong with her." Rachow Aff. ¶ ¶ 17-19. Jensen further indicated that she had told her husband about Plaintiff's comments, which prompted Mr. Jensen to call and threaten Plaintiff. Rachow then telephoned Parnusie, who stated that ...

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