Benette v. Cinemark U.S.A., Inc.

Citation295 F.Supp.2d 243
Decision Date21 November 2003
Docket NumberNo. 01-CV-6519L.,01-CV-6519L.
PartiesRisa A. BENETTE, et al., Plaintiffs, v. CINEMARK U.S.A., INC., d/b/a Movies 10, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York

Nira T. Kermisch, Rochester, NY, for Plaintiffs.

Daniel J. Moore, Harris Beach LLP, Pittsford, NY, for Defendant.

DECISION AND ORDER

LARIMER, District Judge.

INTRODUCTION

Plaintiff Risa Benette brought this action against defendant Cinemark U.S.A., Inc. d/b/a Movies 10 ("Cinemark") asserting a claim for hostile work environment based on sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Roberto Rodriguez brought this action against Cinemark asserting a claim for hostile work environment based on disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiffs also assert that Cinemark retaliated against them after they complained to Cinemark about the hostile work environments and filed charges of discrimination with the New York State Division of Human Rights ("SDHR").

Before the Court is Cinemark's motion for summary judgment (Dkt.# 12). For the reasons set forth below, Cinemark's motion is granted in its entirety.

I. Benette's Claims
A. Hostile Work Environment

In order to prevail on a claim that sexual harassment has caused a hostile work environment in violation of Title VII, a plaintiff must establish two elements. First, plaintiff must show that her workplace was permeated with "discriminatory intimidation, ridicule, and insult ... that [wa]s sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citations omitted). Second, plaintiff must show that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.2003); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002); Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997).

To meet the first requirement, plaintiff must demonstrate "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) (internal quotation marks omitted). Plaintiff must establish that the environment was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

In Harris, the Supreme Court set forth a non-exhaustive list of factors relevant to determining whether a given workplace is permeated with discrimination so "severe or pervasive" as to support a Title VII claim. These include: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a "mere offensive utterance"; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted to the plaintiff. Harris, 510 U.S. at 23, 114 S.Ct. 367.

The Second Circuit has instructed that the Court should consider the totality of the circumstances in determining whether plaintiff has submitted evidence sufficient to support a finding that a hostile work environment relating to discrimination existed. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir.1997) (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). Thus, the factors outlined above must be considered "cumulatively," so that the Court can "obtain a realistic view of the work environment." Id. (quoting Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir.1994)). This includes evaluating the "quantity, frequency, and severity" of the incidents. Id. (citing Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir.1994)).

Applying these principles, I find that Benette's claim for hostile work environment must fail. Benette's claims principally relate to the language used by Derek Jones, her supervisor, an African-American male. There is no evidence in the record that Jones's conduct occurred because Benette was a woman. Although there is evidence of rude, boorish behavior by Jones, there is insufficient evidence that such conduct occurred because of Benette's gender or that she was treated any differently with respect to offensive language than her male counterparts. Moreover, when the Court views Benette's complaints and Jones's conduct in the context of the overall work environment that existed at Cinemark at the relevant time, there is little evidence of a gender-based or sexually-charged hostile work environment.

Jones was appointed General Manager of Movies 10 Theater in September, 1997. Both Benette and Rodriguez worked at the same theater as assistant managers. Jones was not a popular choice as general manager, at least among a cadre of employees. The former Acting General Manager, a woman, was passed over for the job of General Manager. She was preferred by Benette and other employees, and they did little to hide their dissatisfaction with Jones's appointment.

Brian Chapin, an employee at the theater, advised Cinemark managers, when addressing complaints about Jones, that Benette had decided she did not like Jones before he even assumed his duties because she believed that he should not have received the Manager's job. Benette even discussed activities that might get Jones fired. (Statement of Brian Chapin, Ex. 11, Statement of Facts Not In Dispute [hereafter "Statement of Facts"]). According to Chapin, Benette claimed that Jones got preferential treatment because he was black. Chapin described an intense "rivalry" between Jones and Benette at the theater. Benette denies that she held any animus towards Jones or believed that he received preferential treatment because of his race. She claims the former Acting General Manager and Chapin held these beliefs instead. Further, she denies discussing or planning activities that would get Jones fired, and claims that at one point during the investigation she actively discouraged Jones from resigning. (Deposition of Benette at pp. 69-74, Ex. 4, Statement of Facts; Benette Aff. at 57-62, Dkt. # 25).

Although there is some dispute regarding the infighting among the managers at Cinemark, Cinemark does not dispute that Jones engaged in the conduct about which Benette complains. Benette's primary complaints about Jones related to his vulgar and offensive language. Jones's vocabulary was peppered with invective against most employees and his own supervisors. Jones described the former acting general manager (a female) as "fucking ugly" and a "whore." He described his own supervisor, Charly Street (a male), as a "fucking asshole" and a person who "kisses corporate ass." Jones also frequently used the word "fuck" when speaking to employees and was often rude and abrupt with certain employees. This invective and Jones's rude behavior occurred in the presence of customers of the theater as well. In her letter to management describing Jones's behavior, Benette describes Jones's use of foul language within earshot of customers. (Ex. 13, Statement of Facts).

Although Benette described the foul language, it appears that none of the profane language was directed to Benette in her presence. After Benette complained to Cinemark officials about Jones's behavior, she overheard him through the wall of Jones's office describe her to another assistant manager as a "fucking asshole" and a "trouble-making bitch." (Ex. 13, Statement of Facts).

There were also inappropriate comments made about other female employees and their anatomy. Benette claims she heard Jones refer to another female as having a "nice ass." Benette was also told that Jones had commented to another male employee that Benette had "big tits." Finally, Benette was told by a fellow male employee, Kocienski, that Jones had made certain lascivious comments relating to that male employee having sex with a particular female employee who Jones referred to as a "dog." Jones also asked Kocienski whether he an Benette were having a sexual relationship.

Because of Jones's conduct, Benette complained directly to Cinemark. Benette called Charly Street, a regional manager, and complained about Jones's conduct and his language. (Deposition of Benette at p. 88-96, Ex. 4, Statement of Facts). Because of these complaints, an investigator from Cinemark was sent to Rochester to interview all of the affected employees. In the process, Benette submitted a detailed, seven-page summary concerning the conduct that she found offensive (Ex. 13, Statement of Facts). In that letter, Benette described Jones as "unprofessional." She noted that he used rude and derogatory language with employees. She described Jones's use of vulgar and profane language concerning his superiors and the employees at the theater. She complained that Jones showed favoritism toward certain employees and was harsh to those he did not favor. In this submission though, Benette did not claim that the actions she complained of were taken against her on account of her gender, or that she had been treated different than male employees.

The investigator sent by Cinemark, Mario Gonzalez, interviewed eighteen employees, including Jones. Jones denied the allegations against him and claimed that his accusers had engaged in misconduct themselves (Ex. 15, Statement of Facts). Gonzalez's report noted problems with Jones's conduct and other employees at the facility, including Benette. (Ex. 12, Statement of Facts). Gonzalez's conclusion was that Jones was guilty of using "inappropriate language" and...

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