Cajamarca v. Regal Entertainment Group

863 F. Supp. 2d 237, 2012 U.S. Dist. LEXIS 76030, 115 Fair Empl. Prac. Cas. (BNA) 235, 2012 WL 1957891
CourtDistrict Court, E.D. New York
DecidedMay 31, 2012
DocketNo. 11 Civ. 2780 (BMC)
StatusPublished
Cited by8 cases

This text of 863 F. Supp. 2d 237 (Cajamarca v. Regal Entertainment Group) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cajamarca v. Regal Entertainment Group, 863 F. Supp. 2d 237, 2012 U.S. Dist. LEXIS 76030, 115 Fair Empl. Prac. Cas. (BNA) 235, 2012 WL 1957891 (E.D.N.Y. 2012).

Opinion

CORRECTED MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This Title VII action is before me on defendants’ motion for summary judgment. For the purposes of this motion, there is no dispute that plaintiff was sexually harassed by the individual defendant, a fellow employee who was either of equal standing or perhaps slightly superior to her. The question raised by the motion is whether the corporate defendant had an adequate anti-discrimination policy and practice in place, whether it appropriately implemented that practice once it was advised of the alleged discrimination against plaintiff, and whether it retaliated against plaintiff for having complained. As to those questions, the objective evidence is all in the corporate defendant’s favor. It is countered only by plaintiffs subjective feelings and beliefs. That is not enough to survive summary judgment, and, accordingly, the motion is granted.

BACKGROUND

Plaintiff began working as a member of the “Floor Staff’ at one of defendant Regal Entertainment Group’s movie theatres in late October, 2008.1 “Floor staff’ consists of the employees one most commonly sees at the movies, such as box office cashiers, ushers, and concession stand workers. Prior to starting her employment with Regal, plaintiff acknowledged in writing that she had read Regal’s employee manual, which included Regal’s anti-harassment policy and complaint reporting procedures. After about four months as a Regal employee, plaintiff had accumulated sufficient disciplinary warnings to warrant termination under Regal’s policies; instead, however, Regal (after a suspension) granted her request and transferred her in March 2009 to its Midway theatre in Forest Hills, Queens. There, she continued as [242]*242a member of the Floor Staff, primarily in the box office.

At Midway, she met defendant Otis Gadsden. He had also worked at another Regal theatre, and transferred to Midway about a year after plaintiff. He does not appear to have had disciplinary problems at the prior theatre as severe as plaintiffs, but he did have a criminal conviction for burglary and served four months incarceration prior to starting at Regal.

At his prior theatre, Gadsden had been promoted to the position of “Shift Lead,” which was available to selected members of the Floor Staff. A Shift Lead was a senior Floor Staff employee who, besides performing the work of a regular Floor Staff member, helped the theatre manager or assistant managers as directed. When he assumed the Shift Lead position, Gadsden had completed a required program of anti-harassment, discrimination, and retaliation training. Gadsden wore the same uniform as other members of the Floor Staff; Managers and Assistant Managers, in contrast, would wear a sport coat and tie. At times, Gadsden would wear a name tag, as did the entire Floor Staff, except that Gadsden’s would say “Shift Leader.” Regal eliminated the title of Shift Leader about four months after Gadsden started at Midway, replacing it with the title of “Senior Cast Member,” which Gadsden then held.

According to plaintiff, Gadsden began making off-color remarks to her and asking to go out with her in March and April of 2010; he was not put off by her refusals or her advice to him that she was married.2 By late April or May, he had become persistent in his requests to go out with her. Nevertheless, on a cold night in April, when the theatre was closing late and plaintiff had missed her bus, she accepted his offer for a ride home. He pressed her to go out with him throughout that ride, and she was equally firm in her refusal. She let him know that although she was going through a difficult divorce, she had no interest in an intimate relationship with him.

Plaintiff tried to have little contact with Gadsden over the next couple of months, and this led to her temporary belief that he understood that she would tolerate nothing more than a friendship. On that basis, she and Gadsden agreed to go together with their respective children to an amusement park out of state and plaintiff offered to pay for gas for the trip. However, plaintiffs son was hospitalized and the trip did not occur.

For the rest of the summer and into September, Gadsden .continued his vulgar and aggressive remarks to plaintiff and also combined them with obscene gestures. She continued to reject him. However, he also pressed her to lend him money, and after initially refusing, she agreed. They entered into a written loan agreement on September 23rd by which she advanced him $600; the loan agreement provides that he would repay her $900 by October 20th. Nevertheless, she requested repayment of $200 about 10 days later and $450 a few days after that. Gadsden declined both requests.

In early October, in the employee break room, Gadsden kissed plaintiff and then exposed himself suggestively to her, making the most obscene gestures. Plaintiff was traumatized but again did not report it. Instead, she asked the theatre manager, Nick Green, to rearrange her schedule, not telling him the real reason, but instead using her attendance at domestic violence [243]*243and parenting classes as an excuse. Nevertheless, her schedule and Gadsden’s sometimes overlapped, and he continually showed up during her shifts.

On or around October 10th, assistant manager Jane Cinsov saw that plaintiff was nervous around Gadsden and asked plaintiff whether she had a problem with him. At that point, plaintiff described how Gadsden had exposed himself to her and the effect that it had on her. Cinsov was horrified, and when plaintiff expressed reluctance to report it, Cinsov told plaintiff that if plaintiff did not report it to Nick Green, Cinsov would. Plaintiff therefore reported the incident to Green, who immediately spoke to plaintiff and told her to have no further contact with Gadsden or to discuss the matter with other employees. Plaintiff and Gadsden had been scheduled to work together the next day and Green offered to reschedule her, but she declined. Green also obtained a short written statement from plaintiff as to what had transpired.

In that statement, plaintiff stated that Gadsden had “offered a friendly kiss” to her in the break room because he knew she was feeling “overwhelmed with things in my life;” that she had refused; and that in response, he had exposed himself and made obscene gestures and suggestive remarks. She then “walked out in tears and upset my friend would do that.”

The next morning, Green opened a reporting line to Regal’s Director of Human Relations, Jennifer Jones. Jones opened an incident file and the record is clear that over the next five weeks, Jones was in charge of the investigation and determining how to resolve the incident. She specifically directed Green on how to proceed and Green complied with those directions.

As a first step, Green obtained generically-worded surveys from five randomly selected members of the female Floor Staff who had worked with Gadsden. These surveys, without expressly referring to Gadsden, inquired whether any of these five employees had suffered any sexual harassment in the workplace; or whether they had been subjected to any “unfair/inappropriate treatment;” or if they had any other “concerns with [their] working environment.” All of the surveys came back with uniformly negative responses.

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863 F. Supp. 2d 237, 2012 U.S. Dist. LEXIS 76030, 115 Fair Empl. Prac. Cas. (BNA) 235, 2012 WL 1957891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cajamarca-v-regal-entertainment-group-nyed-2012.