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Alremi Walcott v. Cablevision

September 24, 2012

ALREMI WALCOTT, PLAINTIFF,
v.
CABLEVISION, WILLIAM ENTENMAN AND ROBERT WIESSMAN, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

OPINION AND ORDER

Plaintiff Alremi Walcott ("Plaintiff") brings this action against defendants Cablevision Systems New York City Corporation ("Cablevision" or the "Company"), William Entenmann, and Robert Wiesmann (collectively, "Defendants") alleging racial discrimination stemming from Cablevision's failure to promote him and termination of his employment, as well as retaliation for Plaintiff lodging complaints of discrimination within the Company. Plaintiff claims violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and New York Executive Law § 296 ("NYSHRL"). Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is granted in its entirety.

BACKGROUND

Plaintiff, an African-American male, began working for Cablevision in May 1997 as a field service technician. (Defs.' Local Rule 56.1 Statement of Undisputed Material Facts ("Defs.' 56.1") ¶¶ 7-8, Docket Entry No. 43; Pl.'s Local Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 7-8, Docket Entry No. 49-3.) In 2003, Plaintiff was promoted to senior field technician, Grade 14, and maintained that title until his termination in July 2008. (Defs.' 56.1 ¶ 9; Pl.'s 56.1 ¶ 9.)

Plaintiff worked in Cablevision's Brooklyn facility throughout his employment. (Defs.' 56.1 ¶ 7; Pl.'s 56.1 ¶ 7.)

Defendant Entenmann has been employed with Cablevision since 2006 and is presently director of administration for billing and collections in Jericho, New York. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.) From June 2006 through May 2010, Entenmann was the director of administration for Cablevision's Brooklyn facility. (Defs.' 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.) Defendant Wiesmann has been employed with Cablevision since 2005 and has been an area operations manager in Cablevision's Brooklyn facility throughout that time. (Defs.' 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) Wiesmann and Entenmann never served as direct supervisors to Plaintiff. (Defs.' 56.1 ¶¶ 4, 6; Pl.'s 56.1 ¶¶ 4, 6.)

I.Plaintiff's Complaints of Discrimination

a.Work Attire Incident

In July 2005, Wiesmann and another area operations manager, Arnold Carroll, prepared and distributed to technicians in the Brooklyn facility a memorandum entitled "Technician Appropriate Dress Attire." (Defs.' 56.1 ¶ 84; Pl.'s 56.1 ¶ 84.) The memorandum stated that technicians must tuck in their shirts and that it was unacceptable to have "[s]hirt tails not tucked in." (Defs.' 56.1 ¶ 86; Pl.'s 56.1 ¶ 86.) Additionally, in August 2006, there was an initiative by management in the Brooklyn facility to ensure that technicians were wearing proper attire. (Defs.' 56.1 ¶ 88; Pl.'s 56.1 ¶ 88.)

On August 16, 2006, Wiesmann, after observing that Plaintiff and other technicians did not have their shirts tucked in, requested that Plaintiff and the other technicians tuck in their shirts. (Defs.' 56.1 ¶ 91; Pl.'s 56.1 ¶ 91; Dep. of Alremi Walcott ("Walcott Dep.") 227:7-232:14, Docket Entry No. 49-1.) Prior to this request, however, Plaintiff claims he saw Wiesmann pass a group of white employees with their shirts untucked without comment. (Defs.' 56.1 ¶¶ 91-92; Pl.'s 56.1 ¶ 91-92.) Plaintiff did not tuck in his shirt at Wiesmann's request and told Wiesmann that he was not in violation of the Company's dress code because he was not on duty at the time. (Defs.' 56.1 ¶¶ 90-92; Pl.'s 56.1 ¶¶ 90-92; Walcott Dep. at 227:7-232:14.) Shortly thereafter, Wiesmann took Plaintiff to meet with Entenmann. (Defs.' 56.1 ¶ 94; Pl.'s 56.1 ¶ 94.) Entenmann did not discipline Plaintiff for insubordination for the incident; however, Plaintiff claims Entenmann was verbally abusive during the meeting by making statements to Plaintiff that he "would not be able to support [himself], clothe [himself] or [his] family" if Plaintiff did not follow the dress code. (Defs.' 56.1 ¶¶ 92-96; Pl.'s 56.1 ¶¶ 92-96; Walcott Dep. at 214:20-215:2.) Although Plaintiff does not recall Entenmann using any words directly referring to race during that meeting, Plaintiff believed that Entenmann's tone and word choice referred to his race. (Mem. of Law in Opp'n to Summ. J. ("Pl.'s Mem.") at 3, Docket Entry No. 49; Walcott Dep. at 214:3-216:9.)

On August 17, 2006, a follow-up meeting was held that included Plaintiff and Wiesmann, as well as Lloyd Baird, Plaintiff's supervisor, and Michael Louisor, human resources manager. (Defs.' 56.1 ¶ 98; Pl.'s 56.1 ¶ 98.) At the follow-up meeting, Plaintiff was given a copy of the July 2005 memorandum that set forth appropriate work attire for employees in the Brooklyn facility. (Id.) Plaintiff never was disciplined for his refusal to tuck in his shirt or for being out of uniform. (Defs.' 56.1 ¶ 99; Pl.'s 56.1 ¶ 99.)

Later that day, Plaintiff approached Louisor and told Louisor that he felt the actions of Wiesmann and Entenmann resembled some form of bigotry and he wanted to file a complaint against them. (Defs.' 56.1 ¶ 100; Pl.'s 56.1 ¶ 100.) However, the following day, August 18, 2006, Plaintiff informed Louisor to refrain from taking action because Plaintiff was meeting that morning with Thomas Monaghan, vice president of operations, to discuss the incident. (Defs.' 56.1 ¶ 102; Pl.'s 56.1 ¶ 102.) Plaintiff and Monaghan spoke later that day, where Plaintiff raised complaints about the incident. (Defs.' 56.1 ¶ 103; Pl.'s 56.1 ¶ 103; Walcott Dep. at 267:14-267:17.)

Although he cannot recall the circumstances or specific dates of when it occurred, Plaintiff also claims Entenmann stated on several occasions, "you think you back on the block," and "[y]ou think you in the ghetto" to describe Plaintiff's appearance, and Plaintiff considered these statements to be racially derogatory. (Pl.'s Mem. at 4; Walcott Dep. at 205:16-205:21, 208:10-208:13.)

b.Malcolm Hayes Incident

On September 10, 2006, Malcolm Hayes, a field service supervisor, was on duty and in charge of Cablevision's Brooklyn facility. (Defs.' 56.1 ¶ 104; Pl.'s 56.1 ¶ 104.) Hayes had referred another technician to speak to Plaintiff; however, Plaintiff, who was scheduled to close the facility that day, was not yet in the office. (Defs.' 56.1 ¶¶ 105-06; Pl.'s 56.1 ¶¶ 105-06.) Hayes then contacted Plaintiff to determine Plaintiff's whereabouts. (Defs.' 56.1 ¶ 107; Pl.'s 56.1 ¶ 107.) Hayes and Plaintiff had a heated verbal exchange, and, in a memorandum drafted by Hayes to Wiesmann concerning the incident, Hayes noted that Plaintiff said he was going to "fuck [Hayes] up because [Hayes] crossed the line." (Defs.' 56.1 ¶¶ 107-08; Pl.'s 56.1 ¶¶ 107-08.)

On September 11, 2006, Hayes made a formal complaint to Wiesmann against Plaintiff, alleging that Plaintiff had threatened him with physical harm. (Defs.' 56.1 ¶ 110; Pl.'s 56.1 ¶ 110.) Wiesmann then commenced an investigation of the incident by interviewing Plaintiff and other technicians. (Defs.' 56.1 ¶ 111; Pl.'s 56.1 ¶ 111.) Due to the seriousness of the allegations, Plaintiff was suspended pending an investigation. (Defs.' 56.1 ¶ 112; Pl.'s 56.1 ¶ 112.)

On September 13, 2006, Plaintiff contacted Susan Crickmore, vice president of employee relations and human resources operations, to discuss his suspension, and Plaintiff subsequently met with Crickmore on September 15 and 19, 2006. (Defs.' 56.1 ¶¶ 116-17.)*fn1 During those meetings, Plaintiff informed Crickmore that he believed Wiesmann retaliated against Plaintiff during Wiesmann's investigation of the incident with Hayes because Plaintiff previously raised a complaint about Wiesmann in August 2006 concerning the work attire incident. (Defs.' 56.1 ¶ 117.) On October 11, 2006, Plaintiff met with Monaghan and Entenmann and was informed that the Company determined his actions were insubordinate, and he would be suspended for twenty-one days, reassigned to a different facility, and required to attend training regarding respect in the workplace. (Defs.' 56.1 ¶¶ 119-21.)

c.Other Incidents

Plaintiff claims that throughout his employment with Cablevision, he regularly complained at general meetings about racial discrimination. Plaintiff contends he complained at a general meeting in 2007 or 2008 that Entenmann purportedly entered an employee break room and blocked access to the Black Entertainment Channel by entering a code in the remote control that prevented the station from being viewed. (Pl.'s Mem. at 4; Walcott Dep. at 374:11-377:17, 426:4-426:7.) Plaintiff further claims he raised a complaint at a general meeting after hearing that an African-American employee in the Brooklyn facility found a noose hanging in his locker; however, Plaintiff could not recall when he raised this complaint or the identity of the employee whose locker purportedly had been tampered with. (Pl.'s Mem. at 3; Walcott Dep. at 125:14-125:20, 129:1-130:13, 350:1-350:18.)

Plaintiff also claims to have raised complaints at general meetings in 2006 to 2008 concerning his belief that Cablevision engaged in broader discriminatory practices with its employees and customers, although Plaintiff is unable to provide the specific dates of these complaints. First, Plaintiff claims he complained that Cablevision engaged in discriminatory practices with African-American customers by disproportionately targeting African-American neighborhoods for potential theft of service. (Pl.'s Mem. at 2; Walcott Dep. at 71:3-88-9.) Second, Plaintiff claims he complained concerning his belief that Cablevision condoned requests by white customers to have white technicians make home visits in place of minority technicians. (Pl.'s Mem. at 3; Walcott Dep. at 131:1-131:19, 349:15-349:24, 359:9-360:1, 429:5-433:9.) Third, Plaintiff claims to have complained concerning his belief that African-American employees were being paid less than white employees. (Pl.'s Mem. at 2; Pl.'s Dep. at 352:7-353:17, 355:15-360:1, 446:19-449:13.)

II.Supervisor Application

In June 2008, Cablevision's Brooklyn facility had a vacancy for the position of supervisor. (Defs.' 56.1 ¶ 127.) Plaintiff received annual performance appraisals in which he achieved overall evaluation ratings of "Achieved Expected Performance" on January 19, 2007 and "Exceeded Expected Performance" on January 14, 2008. (Defs.' 56.1 ¶ 126.) At the time Plaintiff applied for the supervisor position, he was a Grade 14 technician and had limited outside plant experience, but the position required field service experience, with outside plant experience being an advantage. (Defs.' 56.1 ¶¶ 128, 131; Walcott Dep. at 416:1-416:11.)

Plaintiff completed two rounds of interviews for the position, the first round with Willis Ketrell, area operations manager, and the second round with Ketrell and Alex Torres, director of operations. (Defs.' 56.1 ¶ 130; Walcott Dep. at 417:17-417:21.) The Company ultimately selected another technician for the supervisor position that held a higher grade than Plaintiff (Grade 15) and had the requisite qualifications and experience in field services, as well as outside plant aspects of the business. (Defs.' 56.1 ¶ 132.)

III.The Employee Product Benefit Program

a.EPB Program Procedure and Policy

A benefit that Cablevision offers to certain eligible employees is free cable services, known as the Employee Product Benefit Program ("EPB Program"). (Defs.' 56.1 ¶¶ 15-16; Pl.'s 56.1 ¶¶ 15-16.) The rules for the EPB Program expressly provide that all Cablevision equipment registered to an employee as part of the EPB Program may be used only in the employee's primary residence. (Defs.' 56.1 ¶ 17; Pl.'s 56.1 ¶ 17.) This restriction on usage is set forth in the eligibility form that employees sign when enrolling in the EPB Program. (Defs.' 56.1 ¶ 18; Pl.'s 56.1 ¶ 18.) The EPB Program eligibility form also states that a "failure to reflect accurate information and/or notify HR/ER of any changes that would affect [the employee's] benefit in any way may result in immediate loss of benefit and corrective action, up to and including termination." (Defs.' 56.1 ¶ 19; Pl.'s 56.1 ¶ 19.) Plaintiff was aware of this policy and, in 1997, 2004, and 2006, signed EPB Program eligibility forms that expressly stated the policy. (Defs.' 56.1 ¶ 20; Pl.'s 56.1 ¶ 20.) In addition to the eligibility forms, on January 5, 2007, the Company distributed a memorandum regarding the EPB Program policy to employees within its Cable & Communications division, which included Plaintiff. (Defs.' 56.1 ¶ 23; Pl.'s 56.1 ¶ 23.) The January 5, 2007 memorandum stated that "misuse of [the Company's] Employee Product Benefit may result in corrective action up to and including termination." (Defs.' 56.1 ¶ 24; Pl.'s 56.1 ¶ 24.) Plaintiff was aware of the policy contained in the January 5, 2007 memorandum. (Defs.' 56.1 ¶ 25; Pl.'s 56.1 ¶ 25.)

On March 1, 2007, the Company distributed another memorandum to employees that set forth a new procedure called Employee Equipment Verification ("EEV") for employees participating in the EPB Program to identify and verify cable equipment. (Defs.' 56.1 ¶ 26; Pl.'s 56.1 ¶ 26.) EEV required participating employees to log into the Company's intranet system and enter zip codes and serial numbers for each piece of equipment in their possession by no later than March 30, 2007. (Defs.' 56.1 ¶ 28; Pl.'s 56.1 ¶ 28.) Company records show that Plaintiff logged into the intranet system on March 30, 2007, verified his primary residence in ...


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