Little v. National Broadcasting Co., Inc.

Decision Date22 April 2002
Docket NumberNo. 00 Civ. 3609(SAS).,No. 00 Civ. 3616(SAS).,No. 00 Civ. 5771(SAS).,No. 00 Civ. 5774(SAS).,No. 00 Civ. 3612(SAS).,00 Civ. 3609(SAS).,00 Civ. 3612(SAS).,00 Civ. 3616(SAS).,00 Civ. 5771(SAS).,00 Civ. 5774(SAS).
Citation210 F.Supp.2d 330
PartiesKyle H. LITTLE, Julie Anna Perez, John Rivera, Marta Hogan, Gilbert Muro, Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., Defendant.
CourtU.S. District Court — Southern District of New York

David Ratner, Martha McBrayer, Benedict P. Morelli & Assoc., P.C., New York City, for plaintiffs.

Christopher P. Reynolds., Brian D. Buckstein, Morgan, Lewis & Bockius, LLP, Daniel M. Kummer, Senior Litigation Counsel, National Broadcasting Company, Inc., New York City, for defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiffs have filed five individual complaints against their employer, the National Broadcasting Company, Inc. ("NBC"), alleging numerous acts of racial and sexual discrimination throughout their fifteen to twenty-year careers at the company.1 These cases were consolidated for purposes of pretrial proceedings, and NBC now moves pursuant to Rule 56(c) of the Federal Rules of Civil Procedure for summary judgment against all plaintiffs. NBC characterizes plaintiffs as "disgruntled employees" who threaten to "exploi[t] and dilut[e]" the discrimination statutes. See Omnibus Memorandum of Law in Support of Defendant NBC's Motions for Summary Judgment ("Def. Omnibus Mem.") at 24 (quoting Campbell v. Alliance Nat'l, Inc., 107 F.Supp.2d 234, 251 (S.D.N.Y.2000)). I disagree. Although some of plaintiffs' claims must be dismissed on procedural grounds or for lack of proof, there is sufficient evidence in each of these cases to present triable issues that must be decided by a jury. It is the province of the jury, rather than the Court, to define the limits of appropriate conduct in the workplace. See Gallagher v. Delaney, 139 F.3d 338, 342-43 (2d Cir. 1998). But the plaintiffs' evidence, if true, does tend to suggest that "something is rotten in the [offices of NBC]." William Shakespeare, Hamlet, Prince of Denmark, Act I, Scene IV.

I. BACKGROUND
A. The Parties

NBC is a diversified media company that produces and distributes various forms of entertainment, news and sports programming via broadcast television, cable television, the Internet and other distribution channels. See Def. Omnibus Mem. at 3. At its facility in Rockefeller Center in New York City, NBC produces and facilitates the production of a variety of television shows. See id.; Affidavit of Mary Beth Scalici, NBC's Director of Centralized Scheduling and Production Services ("Scalici Aff.") ¶ 2. These shows are staffed with either NBC employees, freelance personnel or other employees who are hired on a per diem basis without any job security ("Daily Hires"). See id. ¶ 5.

Plaintiffs are all current employees of NBC who have been employed there for the last fifteen to twenty years. See Deposition of John Rivera ("Rivera Dep.") at 16-17, 249; Deposition of Marta Hogan ("Hogan Dep.") at 42; Deposition of Kyle H. Little ("Little Dep.") at 53, 311-12; Deposition of Gilbert Muro ("Muro Dep.") at 32; Deposition of Julie Anna Perez ("Perez Dep.") at 682-83. Since they were hired, plaintiffs have, all been covered by a Collective Bargaining Agreement (the "CBA") negotiated by their union, the National Association of Broadcast Employees and Technicians ("NABET"). See Scalici Aff. ¶ 7; Ex. MM to Affidavit of Christopher P. Reynolds, attorney for NBC ("Reynolds Aff."); Rivera Dep. at 249; Hogan Dep. at 42. This agreement provides a wage scale by job classification, with Group 1 having the lowest wage scale and Group 8 having the highest.2 See Scalici Aff. ¶ 8. The CBA also provides a mechanism by which employees may receive the salary of a higher wage group on a temporary basis. "Daily Upgrades" are given when an employee temporarily performs the specific duties of a higher wage group. See id. ¶ 10. "Merit Upgrades" are given when an employee exhibits leadership and has a record of good punctuality, good attendance and a willingness and ability to take on more responsibilities than required of his or her job classification. See id. ¶ 11. Under the CBA, NBC has the discretion and authority to determine work assignments and job classifications. See id. ¶ 9.

B. NBC's Complaint Mechanism and Diversity Training Programs

NBC's complaint procedure for harassment claims is contained in its anti-harassment policy, which is distributed annually to all employees and posted throughout the Rockefeller Center facility. See Exs. L-O to Reynolds Aff.; Rivera Dep. at 405-16; Muro Dep. at 574; Little Dep. at 306. Pursuant to this procedure, employees are expected to report any "unwelcome offensive" conduct to either: (1) the employee's "line management," (2) Tony Loney, NBC's Director of Diversity, (3) NBC's Ombudsperson, or (4) a representative assigned to that particular employee. Ex. L to Reynolds Aff. at 1-2. Any supervisor or manager who becomes aware of "any complaint or concern of conduct that might potentially violate [the] policy" is obligated to report that complaint or conduct to any one of the four individuals described above or to NBC's law department. Id. at 2. Furthermore, the policy states that "NBC will take prompt corrective action that is calculated to stop the offensive behavior," that NBC will discipline the offending person "where appropriate," and that NBC "strictly prohibit[s] retaliation or reprisal against an individual who reports or opposes harassment." Id. Plaintiffs do not contest the fact that this policy exists, that they have seen the policy, and that they have attended diversity seminars at NBC. See Rivera Dep. at 405-16; Muro Dep. at 572-75; Little Dep. at 306; Perez Dep. at 449-50; Hogan Dep. at 326.

C. Plaintiff-Specific Facts

1. Muro

Gilbert Muro is a Mexican-American. See NBC's Rule 56.1 Statement of Undisputed Facts ("Def.'s Muro 56.1") ¶ 1; Plaintiff Muro's Response to Rule 56.1 Statement ("Muro 56.1") ¶ 1. In 1986, he was introduced to Frank Accarrino, who was then a manager at NBC, through Accarrino's wife, with whom Muro had a friendship. See Def.'s Muro 56.1 ¶ 1; Muro 56.1 ¶ 1. While Muro's employment application indicates that he was referred to NBC by Accarrino, see Def.'s Muro 56.1 ¶ 3; Muro 56.1 ¶ 3, he was not officially hired by Accarrino, see Muro 56.1 ¶ 3; Deposition of Frank Accarrino, Vice President of NBC's News, Entertainment and Facility Operations ("Accarrino Dep.") at 213. Throughout his career at NBC, all of Muro's supervisors have reported to Accarrino. See Accarrino Dep. at 307, 309.

When Muro first began work at NBC in March 1986, he served as a Group 2 Videotape Engineer. See id. ¶ 4. Shortly thereafter, he was upgraded to a Group 3 Videotape Engineer. See Def.'s Muro 56.1 ¶ 5; Muro 56.1 ¶¶ 4, 5. Later in 1986, Muro was upgraded to a Group 7 Technical Director ("TD") and assigned to NBC's morning show "Today".3 See Def.'s Muro 56.1 ¶ 6.

a. Muro's Experience on "Today"

Muro was the TD on "Today" for ten to eleven years, during which he was upgraded to Group 8. See Def.'s Muro 56.1 ¶¶ 8, 9 (approximately ten years); Def. Resp. to Pl. 56.1 ¶¶ 8, 9 (eleven years). As the TD, Muro was responsible for operating the show's electronic switching equipment (generating the show's graphics and visual effects), overseeing the technical aspects of the show and managing the production activities of the subordinate engineers on the crew. See Def.'s Muro 56.1 ¶ 7; Muro 56.1 ¶ 7 (listing some additional responsibilities). Muro contends that on a number of occasions in 1988 and 1989, George Paul, the director of "Today" and Muro's immediate supervisor, made disparaging, racist and sexist remarks in his presence.4 Paul made a comment about an Hispanic co-worker's accent, commenting: "I don't understand a damn thing he's saying," and complaining, "it's ridiculous we can't speak English around here." Muro Dep. at 66, 68. Paul also told Muro he thought this co-worker was "lazy" and "stupid because of his accent." Id. at 67. Paul also made disparaging comments about African-American guests on the show, using racial slurs and mocking them with "a black dialect." Id. at 74, 88-89. Once Muro heard Paul refer to the African-American host of the show as "that black prick." Id. at 88. According to Muro, Paul "used the `C' word for women," used the word "spic" at least two times, and joked about an Asian audio engineer in front of the entire Control Room, asking him about "laundry." Id. at 67, 69-71.

Muro asserts that he twice complained to Paul in 1989, informing him that, as a Mexican-American, he was offended by Paul's language and comments. See id. at 71-72, 75-77. Paul cursed at Muro in response and, on one of these occasions, threatened to remove him as TD on "Today"'s upcoming five-city tour. See id. at 71-72, 75, 84. That same year, Muro twice complained about Paul's conduct to Accarrino who, as manager of the technical supervisors at NBC, was ultimately responsible for promotions, raises, show assignments, scheduling and careers. See id. at 69, 76, 79, 81, 84, 391. Muro allegedly asked Accarino "how anyone in [Paul's] position who has all these prejudices could be responsible for promoting people. How could anyone get a fair shake with this man sitting at the helm." Id. at 73. Accarrino responded to these complaints by commencing a routine mocking of Muro's surname, pronouncing it "with a phony Spanish accent" whenever he saw Muro at NBC. Id. at 95-97, 102. This "needling ... mocking ... harrassing" Spanish accent allegedly continued until 1998, when Muro filed his complaint with the EEOC. Id. at 102, 104.

On June 20, 1997, Muro attended a meeting called by NBC to discuss the removal of Collette Baptiste, an...

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