White v. Foundation

• Decision Date: 19 September 2013
• Docket Number: No. 11 Civ. 2192(PGG).,11 Civ. 2192(PGG).
• Parties: Bernard WHITE, Plaintiff, v. PACIFICA FOUNDATION and Stephen M. Brown, Defendants.
• Court: U.S. District Court — Southern District of New York

973 F.Supp.2d 363

Bernard WHITE, Plaintiff,

v.PACIFICA FOUNDATION and Stephen M. Brown, Defendants.

No. 11 Civ. 2192(PGG).

United States District Court,

S.D. New York.

Sept. 19, 2013.

Patrick James Boyd, The Boyd Law Group, PLLC, New York, NY, for Plaintiff.

Marjorie N. Kaye, Jr., Jackson Lewis LLP, Philadelphia, PA, Daniel David Schudroff, Jackson Lewis LLP, Christine Marie Fitzgerald, Jonathan N. Misk, Ned Henry Bassen, Hughes Hubbard & Reed LLP, New York, NY, for Defendants.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

Plaintiff Bernard White alleges that Defendants Pacifica Foundation—his former employer—and Stephen M. Brown—a board member for a local radio station owned by Pacifica—discriminated against him because of his race, and then retaliated against him for complaining about the discrimination, in violation of 42 U.S.C. § 1981 et seq. (“Section 1981”); the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8–101 et seq. (“NYCHRL”). (Am. Cmplt. (Dkt. No. 19)) Defendants have moved for summary judgment on all of White's claims. (Dkt. Nos. 34, 45) For the reasons stated below, Defendants' motions will be granted.

BACKGROUND¹

I. STRUCTURE OF PACIFICA AND WBAI

Defendant Pacifica is a California foundation that operates a network of not-for-profit radio stations in the United States. (Pacifica R. 56.1 Stmt. ¶ 1) ² The governing body of Pacifica is the Pacifica National Board. (Pacifica R. 56.1 Stmt. ¶ 3)

WBAI 99.5 FM is a radio station in New York City that is wholly owned by Pacifica. (Pacifica R. 56.1 Stmt. ¶ 5; Pltf. R. 56.1 Stmt. ¶ 2) WBAI offers news and educational programming and earns at least 80% of its revenue through on-air fundraising and donor campaigns. ( See Boyd Aff., Ex. C at PAC7; Pacifica R. 56.1 Stmt. ¶ 20) WBAI has a Local Station Board (“LSB”) comprised of 24 members. (Pacifica R. 56.1 Stmt. ¶ 7) Plaintiff became WBAI's Program Director in 2000 and, except for a one-year period around 2001, held that position until his termination in May 2009. (Pacifica R. 56.1 Stmt. ¶¶ 15, 52; Kaye Decl., Ex. 7 (White Dep. Tr.) at 16:2–17:3)

Under Pacifica's bylaws, the WBAI LSB has the power to “screen and select a pool of candidates for the position of station Program Director, from which pool of approved candidates the station's General Manager shall hire the station's Program Director.” (Boyd Aff., Ex. C at PAC23) The LSB is also responsible for “prepar[ing] an annual written evaluation of the station's Program Director.” ( Id.) The LSB established a Management Evaluation Committee to carry out this task. (Boyd Aff., Ex. A at P54–55) Among other responsibilities, the LSB “assist[s] in station fundraising activities.” (Boyd Aff., Ex. C at PAC23)

II. BROWN'S POSITION AND EMAILS

Brown, a Caucasian man, is a member of the WBAI LSB. (Pacifica R. 56.1 Stmt. ¶ 8; Pltf. R. 56.1 Stmt. ¶ 114) Pacifica has never paid Brown any wages, benefits, dividends, or compensation of any kind, and Brown has never had an ownership interest in Pacifica. (Brown R. 56.1 Stmt. ¶¶ 73, 77, 79) As a member of WBAI's board, Brown does not have the authority to make personnel decisions or terminate employees on behalf of Pacifica, or to otherwise affect the terms and conditions of employment of Pacifica employees. (Brown R. 56.1 Stmt. ¶ 74; Kaye Decl., Ex. 5 (Williams Dep. Tr.) at 12:20–13:5)

At issue in this litigation are certain emails sent by Brown—between 2004 and 2006—some of which reached a large number of WBAI listeners and members via a listserv. (Pltf. R. 56.1 Stmt. ¶¶ 125, 133, 135) These emails include the following:

• On September 4, 2004, Brown sent an email to eleven recipients with the subject line “Stepping up the hate campaign at WBAI.” At the beginning of the email, Brown states: “You ought to be aware that the race-baiting campaign launched against us will be stepped up. Last night Bernard White held a secret strategy session ... with several of his allies.” (Pltf. R. 56.1 Stmt. ¶ 139; Boyd Aff., Ex. K at SB196–202).

• On October 10, 2004, Brown sent an email to six recipients with the subject line “How Bernard White skewed and screwed the WBAI electorate.” In the email, Brown states that Plaintiff “arranged for a disproportionately large number of premiums offered during every fundraiser in 2003 to be ‘racially oriented’ and—even more specifically—African–American oriented.” (Pltf. R. 56.1 Stmt. ¶¶ 149–50; Boyd Aff., Ex. K at SB 170–71)

• On August 31, 2005, Brown sent an email to an unknown number of recipients stating that a radio station in Boulder, Colorado succeeds because the population of Boulder is “[a]lmost entirely white.” The email further states that “it is no surprise that WBAI ... has always been a pressure cooker of racial mistrust, nastiness, [and] violence.” (Pltf. R. 56.1 Stmt. ¶¶ 161–73; Boyd Aff., Ex. K at SB145–52)

• On March 13, 2006, Brown posted a message to a message board with the subject line “Bernard White froths at the mouth in WBAI's hallway.” The post states that White was “bellowing crude racists insults clearly directed at [a female employee]” and that White and Maitland “instituted a reign of terror in which staff members have literally been beaten up on the premises.” (Pltf. R. 56.1 Stmt. ¶ 136; Boyd Aff. Ex. E at PAC 108–09)

• On March 14, 2006, Brown posted a message to a message board with the subject line “Shame on you and (many of) the WBAI staff!” The message states that White was “terrorizing” another employee. (Pltf. R. 56.1 Stmt. ¶ 137; Boyd Aff. Ex. E at PAC 109)

• On October 19, 2006, Brown contributed to a message board thread titled “What percentage of this slate is white?” (Pltf. R. 56.1 Stmt. ¶ 177–79, 181–82; Boyd Aff., Ex. P)

Plaintiff asserts that Brown's “negative” emails from the 2004–06 time period “had an influence in setting the stage for [his] termination” in May 2009. (Brown R. 56.1 Stmt. ¶ 88; Kaye Decl., Ex. 7 (White Dep. Tr.) at 33:9–10, 17) Although Plaintiff asserts that Brown continued to send similar emails attacking Plaintiff through 2009 (Pltf. R. 56.1 Stmt. ¶ 40), there is no evidence of similar emails or message board posts after October 19, 2006. ( See Pltf. Brown R. 56.1 Resp. ¶ 88; Brown R. 56.1 Resp. ¶ 40)

Brown testified that he thought White was a terrible Program Director. (Brown R. 56.1 Resp. ¶ 115 (citing Brown Dep. Tr. 131:25–132:2, 136:15–23) He also opposed Plaintiff's effort to attract a larger African–American audience because “the station's purpose was not to focus on one particular ... minority.” Brown believed that Plaintiff's focus on an African–American audience “was not only morally wrong, it was irresponsible, in terms of management of the station....” (Pltf. R. 56.1 Stmt. ¶ 147; Boyd Aff., Ex. H (Brown Dep. Tr. at 162:7–12) Brown wanted White to be fired and celebrated when his employment was terminated in 2009. (Pltf. Brown R. 56.1 Resp. ¶¶ 119, 188)

III. PLAINTIFF'S DUTIES AS PROGRAM DIRECTOR AND WBAI'S FUNDRAISING AND LISTENERSHIP DECLINE

Plaintiff, an African–American man, was hired by Pacifica in 1992 as a host of a WBAI morning program. (Pacifica R. 56.1 Stmt. ¶ 14) In 1999, Plaintiff became WBAI's Acting Program Director, and in 2000, he assumed that position on a full-time basis.³ (Pacifica R. 56.1 Stmt. ¶ 15) As Program Director, an “essential” part of Plaintiff's responsibilities was to organize fundraising drives. (Pacifica R. 56.1 Stmt. ¶¶ 17–18 (quoting Kaye Decl., Ex. 8)) While Plaintiff was Program Director, WBAI often had to extend its fundraising drives to reach target goals, and its financial condition steadily worsened. (Pacifica R. 56.1 Stmt. ¶¶ 22, 24) WBAI's listener donations decreased in each of the four fiscal years preceding Plaintiff's termination, but increased in each of the two fiscal years following his termination. (Pacifica R. 56.1 Stmt. ¶¶ 28–34; Pacifica R. 56.1 Reply ¶¶ 28–34) During the latter part of Plaintiff's tenure as Program Director, there was a decline in both the station's listenership and revenue. (Pacifica R. 56.1 Stmt. ¶ 35 (citing Pltf. Dep. Tr. 44:24–25, 45:2–8))

LaVarn Williams, Pacifica's Chief Financial Officer, testified that a committee was formed in or around 2007 to study the decrease in WBAI's listenership, and that both she and Plaintiff were part of this committee. (Pltf. R. 56.1 Stmt. ¶¶ 4, 71–72 (citing Williams Dep. Tr. 96–97) Plaintiff denies that he was a member of this committee or that he was even aware of its existence. (Pltf. R. 56.1 Stmt. ¶ 73)

IV. PLAINTIFF'S COMPLAINTS, SUSPENSION, AND TERMINATION

Plaintiff testified that, as early as 2003, he notified the Pacifica National Board and the WBAI Local Station Board of Brown's allegedly discriminatory emails. (Pltf. R. 56.1 Stmt. ¶ 31) Plaintiff also states that he discussed Brown's emails with Pacifica's then-Executive Director, Dan Kaufman in about 2003 (Pltf. R. 56.1 Stmt. ¶ 32); and with Greg Guma, Pacifica's then-Executive Director, in about 2006. (Pltf. R. 56.1 Stmt. ¶ 33)

On September 27, 2007, Plaintiff emailed a written complaint to Pacifica National Board Chairman, David Edelson, asserting that Brown “has engaged in a long running, concerted campaign of slander and libel” against Plaintiff that “made the performance of [his] job more difficult.” Plaintiff complained that Brown's “defamation is saturated with racial invective such that [his] well-being is affected.” (Kaye Decl., Ex. 8 at PAC198–99; see also Pacifica R. 56.1 Stmt. ¶¶ 58–59) About a week after Plaintiff emailed his complaint, he was contacted by Pacifica's counsel, Dan Siegel, who told Plaintiff that he was conducting an investigation and asked for more information about White's claims. (Pacifica R. 56.1 Stmt. ¶¶ 63–64) Plaintiff provided Siegel with copies of emails. (Pacifica R. 56.1 Stmt. ¶ 65) The record contains no further information about Siegel's investigation. Plaintiff admits that he never followed...