Perry v. Manocherian

• Decision Date: 30 November 1987
• Docket Number: No. 84 Civ. 3610 (RWS),85 Civ. 4606 (RWS).,84 Civ. 3610 (RWS)
• Parties: Mark PERRY, Arthur Diemar, Michael McIntosh, and George Miles, Plaintiffs, v. Fraydun MANOCHERIAN, New York Health Club, Inc., New York Health & Racquet Club, a partnership, New York Health & Racquet Club Foundation, Inc., Health & Racquet Club Foundation, Inc., Pan Am Equities, Inc., Andrea Rubin, Michelle Pecora, Sean Cronin and Roy Pollack, Defendants.
• Court: U.S. District Court — Southern District of New York

675 F. Supp. 1417

Mark PERRY, Arthur Diemar, Michael McIntosh, and George Miles, Plaintiffs, v. Fraydun MANOCHERIAN, New York Health Club, Inc., New York Health & Racquet Club, a partnership, New York Health & Racquet Club Foundation, Inc., Health & Racquet Club Foundation, Inc., Pan Am Equities, Inc., Andrea Rubin, Michelle Pecora, Sean Cronin and Roy Pollack, Defendants.

Nos. 84 Civ. 3610 (RWS), 85 Civ. 4606 (RWS).

United States District Court, S.D. New York.

November 30, 1987.

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Hill, Betts & Nash, New York City, for plaintiffs; Thomas A. Holman, A. Jeffrey Weiss, of counsel.

Charles Morrison, New York City, for plaintiffs.

Shea & Gould, New York City, for defendants; Michael S. Feldberg, Rory J. Cutaia, of counsel.

OPINION

SWEET, District Judge.

Introduction

Plaintiffs Mark Perry ("Perry"), Arthur Diemar ("Diemar"), Michael McIntosh ("McIntosh"), and George Miles ("Miles") have filed this action against Freydun Manocherian ("Manocherian"), New York Health Club, Inc. ("NYHC"), New York Health & Racquet Club ("NYHRC"), New York Health & Racquet Club Foundation, Inc. ("the Foundation"), Pan Am Equities, Inc. ("Pan Am"), Andrea Rubin ("Rubin"), Michele Pecora ("Pecora"), Sean Cronin ("Cronin"), and Roy Pollack ("Pollack") pursuant to title VII, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. §§ 1981, 1985, N.Y.Exec.Law § 296, and common law claims of intentional infliction of emotional distress.

Plaintiffs contend that due to defendants' discriminatory treatment of blacks in the workplace, Miles and McIntosh had no choice but to leave their jobs, amounting to constructive discharge. Additionally, McIntosh contends that he was denied a promotion because of his race. Further, Perry and Diemar claim retaliation discharge —that they were discharged because they opposed defendants' racially motivated policies. Defendants have counterclaimed for abuse of process and for intentional infliction of emotional distress. Both sides have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., each side seeking to dismiss the action of the other. For the reasons set forth below, defendants' motion is granted in part and denied in part, and plaintiffs' motion is granted in part and denied in part.

The Parties

NYHRC, a partnership, is chain of health clubs in the New York City area. Manocherian is its principal and founder, as well as the principal of NYHC, the latter being a partner in NYHRC. Manocherian is also the principal of the Foundation, an allegedly charitable organization established for the purpose of promoting Olympic sports participation, and of Pan Am, a real estate management firm which manages the buildings in which the clubs are located, does business out of the same offices as NYHRC's headquarters, and which shares some employees with NYHRC. At all relevant times, Rubin was the general manager of NYHRC with an office at the West 56th Street branch, Pecora was an assistant club manager and then a club manager at West 56th Street, Cronin was a sales consultant working out of West 56th Street, and Pollack was president of NYHRC.

All four plaintiffs were employed by NYHRC. Mark Perry was a sales consultant from June 1981 until his termination in June 1983. He was stationed at the East 76th Street branch from October 1981 until September of 1982, and at all other times was stationed at the West 56th Street branch. His function was to sell club memberships. Perry is white. Arthur Diemar was employed as the head racquet ball pro for the West 56th Street branch from October 1982 until January 1984. He was responsible for promoting and selling NYHRC racquet ball services and equipment to members, and for conducting clinics, tournaments, and competitions. Diemar is also white. George Miles was employed at the West 56th Street branch from January 1983 until August 1983 as a night porter. Miles is black. Michael McIntosh was employed at the West 56th Street branch as a porter from March 1983 until June 1983. McIntosh too is black.

The Issues

Plaintiffs in this case accuse NYHRC, through its policymakers and those carrying out these policies, of systemwide and deliberate race discrimination leading to the termination of their employment. The "event" that seemingly precipitated the discharge of both Perry and Diemar and the claimed constructive discharge of Miles and McIntosh was an alleged "change" in employee benefits, and plaintiffs' subsequent opposition to this change.

Miles and McIntosh were both employed as night porters at the West 56th Street branch of the NYHRC. As part of their employee benefit package, they were told that they were permitted use of the NYHRC facilities during non-peak hours. However, both men, upon attempting to take advantage of this benefit, were prevented from using the club by defendants Pecora and Rubin. According to plaintiffs, they were denied this benefit because they are black.

Defendants claim that Miles and McIntosh were denied use of the facilities pursuant to a change in benefit policy. They claim that their staff had grown so large in recent years that they had to cut back on the number of employees permitted to use the club. According to defendants, plaintiffs were denied use of the facilities as members of a class of employees—porters —and not because of their race.

However, plaintiffs presented affidavit and deposition testimony directly contradicting defendants' contentions. According to this evidence, the so-called policy change was disparately implemented. Each of the named defendants claim that it took effect at different times, and similarly situated white workers claim not to have been aware of a policy change until over one year after the events in question, if at all.

Additionally, McIntosh claims that he was denied a promotion because of his race. McIntosh allegedly sought a position as a racquet stringer and spoke to Diemar, the head racquet ball pro, about the position. Diemar allegedly tested McIntosh's ability to run the stringing machine, and, upon finding that McIntosh was proficient, recommended him for the job. McIntosh, however, was turned down for the job without reason, and the job was never filled.

Both Miles and McIntosh left NYHRC of their own accord. However, both claim to have found the working environment so hostile to blacks that they had no choice in their decisions. Thus they claim constructive discharge.

Both Perry and Diemar, on the other hand, were terminated by NYHRC, and both claim that their discharge was for retaliatory purposes. Each claim to have been reprimanded for associating with the black defendants, and to have been ultimately terminated because they took a stand against NYHRC's alleged discrimination against blacks.

Diemar claims to have been reprimanded for allowing McIntosh to use the racquet ball courts, and claims to have been denied the ability to interview and hire a black receptionist. More importantly, Diemar claims that upon learning about NYHRC's treatment of Miles and McIntosh, he helped Miles file a complaint with the City Commission. Soon after Manocherian was served with the complaint bearing Diemar's name as a witness, Diemar was terminated without notice.

Defendants claim that Diemar was terminated because he indulged in substance abuse while on the NYHRC premises, because he stole from the racquet ball pro shop, and because he often arrived late. They presented evidence of these contentions in the form of deposition testimony— mostly of the parties themselves.

Perry contends that he was terminated because he persisted in selling memberships to blacks after having been warned by defendant Pollack not to do so, and because he opposed NYHRC's "policy" of not allowing Miles and McIntosh to use the facilities. Most significantly, he further claims that he was retaliated against for threatening to bring a law suit against NYHRC in the form of a test case. Non-party deposition testimony indicates that Manocherian was aware of these threats.

Defendant's claim that Perry was terminated because his sales record was unsatisfactory and because he too engaged in substance abuse while on the premises. However, past sales records indicate that Perry was one of NYHRC's top grossing salespeople in 1981 and 1982, and that while his sales fell off somewhat in 1983, there were sales consultants with worse records who were not terminated. Accounts of substance abuse come from the defendants themselves, or from ranking employees of NYHRC.

Prior Proceedings

On December 14, 1983, George Miles filed a complaint with the New York City Commission on Human Rights alleging employment discrimination on the basis of race and color. That complaint resulted in the issuance of a letter from the Equal Employment Opportunity Commission on June 4, 1985, granting Miles the right to sue NYHRC.

While awaiting the Commission's decision, Miles, on May 23, 1984, filed an action before this court. A further action, naming all present plaintiffs was filed here on June 13, 1985, and defendants at that point counterclaimed for abuse of process. The two actions were consolidated, resulting in the action presently before this court.

In February 1986, this court denied plaintiffs' motion to dismiss the counterclaims. On April 3, 1987, plaintiffs were permitted to file an amended complaint which formally consolidated the second and third actions. Counterclaims were imposed accordingly.

Discussion

This Circuit has determined that the responsibility of a court considering a motion for summary judgment "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). Examination of the record to date indicates that...