GROESSLER v. CINEMARK USA, (W.D.Ky. 2000)

JOHN G. HEYBURN II, Judge.

Defendant Cinemark USA, Inc., employed Plaintiff Tom Groessler at its Tinseltown USA movie theaters for a little over two months, from November 24, 1998, until January 30, 1999. After Defendant fired him, Plaintiff filed this lawsuit alleging employment discrimination. Plaintiff's two remaining claims are for a hostile work environment and retaliatory discharge, both pursuant to Ky. Rev. Stat. Ann. § 344.040 (Michie 1997). Defendant now moves for a summary judgment on these remaining claims.

Plaintiff is a native of Germany and a Jehovah's Witness. He alleges that several of Defendant's assistant managers directed a pattern or series of ethnic and religious slurs, taunts, and, on one occasion, physical assault, against Plaintiff based upon his national origin and religion. According to Plaintiff, assistant manager Mike Young called him "Nazi" and "Nazi boy"; assistant manager Jeremy Brown repeatedly called him "Nazi boy"; and assistant manager Mac Spengler repeatedly called him "Nazi boy," "Jew killer," "fag," "Nazi," and "little Jehovah's Witness piece of shit." The managers taunted Plaintiff to go kill a customer who looked Jewish, and they told another customer that Plaintiff was "a fag and a Nazi. . . . and we had to hire him anyway." At other times, the managers would give Plaintiff a Nazi arm salute and call him "Hitler" or say "Heil Tom." The comments were a constant and daily circumstance of Plaintiff's employment at Tinseltown, allegedly continuing for the entire brief span of the job. Plaintiff was very hurt by this behavior, to the extent that he dreaded attending work and often took breaks or left early to avoid further harassment.

Keri Elswick, a Tinseltown employee at the relevant times, testified by affidavit that she once witnessed Spengler, Gifford, and Young treating Plaintiff in this manner. Assistant manager Young apparently agrees that at least some of these events did occur, but all the other managers deny ever making any such ethnic or religious comments.

Upon Plaintiff's frequent complaints to these managers about their comments, he was met with reactions ranging from diffidence and further insult to physical assault. After Plaintiff explained that his grandparents suffered for their religious beliefs in a Nazi concentration camp, and therefore the comments were particularly hurtful and insulting, Brown laughed about it. Assistant manager Mark Huff ignored Plaintiff's entreaties. Assistant manager Matthew Gifford and others told Plaintiff that he and other Jehovah's Witnesses "were supposed to be in those camps." At one point, Spengler threw Plaintiff against a wall and threatened him.

When the slurs and taunts from his immediate supervisors persisted, Plaintiff attempted to complain directly to Tinseltown's manager, Edward Sibiga, pursuant to the theater's "open door" policy. In his own deposition, assistant manager Gifford admits that he instructed Plaintiff not to approach Sibiga regarding his treatment, explaining that Plaintiff might be fired for such a complaint. Plaintiff and Sibiga never discussed the matter, but Plaintiff's father complained to both Sibiga and Gifford on several occasions, sometimes threatening litigation.

On January 30, 1999, Plaintiff met Defendant's Region Leader Michael Nett while he was in Louisville on a routine inspection. After this brief introduction, Nett and Sibiga had a discussion regarding Plaintiff's situation, and Sibiga explained Plaintiff's allegations of mistreatment stemming from his German national origin. Nett heard these complaints with incredulity. After Brown and Spengler denied ever taunting Plaintiff, and after Sibiga told Nett that Plaintiff was a poor worker and a prankster, Nett decided to meet with Plaintiff alone. While waiting in an empty conference room for Nett to arrive, Plaintiff called his father on a personal cell phone. When Plaintiff's father suggested that he leave the phone on during the meeting, Plaintiff responded that he might get in trouble. But when Nett entered the room, Plaintiff dropped the phone in his lap — out of view — believing it was still on.

The meeting was brief. Plaintiff explained his treatment by theater employees, and Nett responded by claiming that such behavior, if true, did not amount to racial discrimination. When Plaintiff kept speaking downward into his lap, Nett asked if Plaintiff were carrying a phone. Plaintiff admitted carrying the phone, and also said that it was on and his father was listening on the other end. (Unbeknown to Plaintiff, the phone had in fact cut off when it hit his lap, so his father did not hear the conversation.) Nett grabbed the phone and left the room. Plaintiff alleges that Nett then stood in the hallway and asked Sibiga, "are these things are they [sic] against company policy?" Sibiga said yes, whereupon Nett reentered the room and told Plaintiff, "Great. You're fired. Get out of here."

Later that day, Sibiga executed a termination form for Plaintiff; the reasons given were "Horseplay with standee in handicap stall. Carrying a pager (phone) at work." On January 24, 1999, Plaintiff and Justin McCord, another Cinemark employee, were told to dispose of a cardboard "standee" display of movie character "Patch Adams." Instead of throwing it away, Plaintiff and McCord placed the standee in a handicapped restroom stall, bending it to sit on the toilet. Neither employee was disciplined for the prank at that time, and the assistant managers apparently found the incident amusing. After Plaintiff's termination, Sibiga gave McCord a written warning, although he prefaced the discipline by stating, "I can't believe he's [Sibiga's superior is] making me do this."

Carrying a cell phone is indeed a violation Tinseltown's employee policy, but assistant manager Gifford had given Plaintiff permission to carry a cell phone. Gifford admits his approval of the phone, although he gave the permission with the caveat that Plaintiff keep the phone out of sight. Gifford also allegedly warned Plaintiff that other managers might discipline Plaintiff for the phone. Plaintiff claims that other employees, including the assistant managers, carried cell phones and pagers on a regular basis.

I.

Under the Kentucky Civil Rights Act, it is "an unlawful practice for an employer . . . to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's . . . religion [or] national origin." Ky. Rev. Stat. Ann. § 344.040 (Michie 1997). The Court interprets this statute in conformity with the parallel federal statute. See Gafford v. General Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993); Kirkwood v. Courier-Journal Louisville Times Co., 858 S.W.2d 194, 197-99 (Ky.Ct.App. 1993); Kentucky Comm'n on Human Rights v. Commonwealth of Ky. Dep't of Justice, 586 S.W.2d 270, 271 (Ky.Ct.App. 1979). Both parties also seem to admit that Kentucky's courts have yet to consider hostile work environment or harassment claims based upon the victim's national origin or religion, but it is appropriate to apply the general harassment precepts of sex and race discrimination cases. Cf. Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 485 (6th Cir. 1989).

The Supreme Court outlined the prevailing law of hostile work environments and discriminatory harassment in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), and Harris v. Forklift Systems, Inc., 510 U.S. 24 (1993):

This standard . . . takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. . . . mere utterance of an epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.

. . . .The appalling conduct alleged in Meritor, and the reference in that case to environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.

. . . . So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.

. . . . [W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere objectionable utterance; and whether it unreasonably interferes with an employee's work performance.

Harris, 510 U.S. at 21-23 (internal citations and quotations omitted) (emphasis added).

In this case, Defendant does not argue that its conduct in seeking to prevent and correct harassing conduct was reasonable, see, e.g., Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2292-93 (1998), nor does Defendant claim that Plaintiff suffered no subjective perception of an abusive environment. See Harris, 510 U.S. at 21-23. Instead, Defendant merely argues that the alleged behavior, if it occurred, was not sufficiently severe or pervasive to constitute a hostile or abusive working environment under the Harris standard.

The Court must consider what a reasonable jury might believe to be true. If one believes Plaintiff's allegations, the conduct was serious, severe, and pervasive. Plaintiff was openly taunted with German slurs and Nazi salutes on a daily basis. His religious convictions were mocked and denigrated; Defendant's managers even suggested that all Jehovah's Witnesses should have died in the Nazi concentration camps. He was humiliated in front of customers. He was taunted to kill a customer who "looked Jewish." He was physically assaulted and threatened with further abuse and loss of his job. He was threatened not to report the behavior to Manager Sibiga. All of this behavior is attributable to Defendant's own managers, who were charged with direct supervisory responsibility over Plaintiff. All of these incidents, if true, occurred over a relatively short time period. A reasonable jury could well characterize these employment circumstances as hostile and abusive, and an objective person could perceive them as such.

Defendant contests the objective offensiveness of the taunts delivered by its assistant managers. The argument seems to be that, when compared to traditionally offensive racial slurs, terms such as "Nazi," "Jew killer," "Hitler," and "little Jehovah's Witness piece of shit" are so different in degree as to be different in kind. Defendant can certainly make that argument to the jury; however, the Court is unwilling to make such qualitative differentiations among racial and ethnic slurs. The labels employed by Plaintiff's managers were abusive and objectively offensive, and a reasonable jury may consider them as actionable harassment.

The Court cannot find that Plaintiff's allegations are mere isolated epithets or sporadic slurs: The behavior Plaintiff alleges was steady and pervasive — coming not from a single employee but from four assistant managers over a substantial period of employment — and Plaintiff claims that it interfered with his work performance. Plaintiff may not ultimately prevail on this claim at trial, but he has produced sufficient evidence upon which a jury could conclude that his work environment was objectively hostile and abusive, and amounted to unlawful discrimination. Viewing this evidence in a light most favorable to Plaintiff, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the Court must deny Defendant's motion as to the first claim.

II.

The retaliatory discharge claim is a closer question. In their briefs, the parties outline the basic scheme of proof for a claim of discriminatory retaliation, but the standard is somewhat more nuanced than their description would allow:

To establish a claim . . . Plaintiff must meet the test of a slightly modified McDonnell Douglas framework by showing that: 1) he engaged in activity protected by Title VII; 2) this exercise of protected rights was known to Defendants; 3) Defendants thereafter took an adverse employment action against Plaintiff, or Plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and 4) there was a causal connection between the protected activity and the adverse employment action or harassment. If Plaintiff establishes a prima facie case . . ., then the burden shifts to Defendants to articulate a legitimate, nondiscriminatory reason for Plaintiff's discharge. Plaintiff must then demonstrate that the proffered reason was not the true reason for the employment action — i.e., that the reason was a mere pretext for discrimination.

Johnson v. University of Cincinnati, 215 F.3d 561, 578-79 (6th Cir. 2000) (citations omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792-93 (6th Cir. 2000).

In its motion for a summary judgment, Defendant conceded that Plaintiff could establish a prima facie case of discriminatory retaliation, and moved immediately to the second step articulation of a legitimate, nondiscriminatory reason for Plaintiff's discharge. Defendant's proffered reason for Plaintiff's discharge is a combination of his role in the Patch Adams standee incident and his use of a cellular telephone to secretly transmit a private conversation at work. This explanation suffices to move the burden of production back to Plaintiff.

This seems to be accurate. Plaintiff had been consistently complaining about discriminatory and harassing treatment by the Tinseltown management, Region Leader Nett was fully briefed on these complaints before their meeting, Nett fired Plaintiff, and the timing of the discharge is circumstantial evidence of a causal connection.

Since Defendant's reason is facially legitimate, the Court must reach the question of pretext. The Sixth Circuit articulates the pretext evidence necessary to reach a jury as follows: Plaintiff "must prove that the employer's asserted reasons have no basis in fact, that the reasons did not in fact motivate the discharge, or, if they were factors in the employer's decision, that they were jointly insufficient to motivate the discharge." Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 729 (6th Cir. 1999) (quotations and citation omitted) (emphasis added); see also Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 883 (6th Cir. 1996); Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). As each of these factors demonstrates, the "ultimate question is whether the employer intentionally discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2108 (June 12, 2000).

Considering the first Warfield factor, Defendant's reasons for the discharge obviously have a basis in fact: Plaintiff admits his horseplay with the standee and his attempted use of the cell phone. And after a careful review of the evidence presented, the Court agrees with Defendant that the cumulative effect of Plaintiff's standee horseplay and his attempt to broadcast a private conversation to his father over a cell phone would be sufficient — in the abstract — to support his discharge. While it may be true that McCord received relatively light punishment for his role in the standee incident, and though other employees may carry pagers or cell phones during their shifts at Tinseltown, Defendant correctly argues that the combination of horseplay and deceptive attempts to broadcast a private conversation are a different situation. The Court agrees that a reasonable employer could discharge an employee for such behavior. Thus, Plaintiff cannot show pretext through the second Warfield factor.

But the most crucial question is asked by third Warfield factor: Did the reasons given by Defendant in fact motivate Plaintiff's discharge? Several pieces of evidence support Plaintiff's argument that he was terminated for complaining about harassment rather than for the reasons stated. First, the timing is highly suspicious. On January 30, 1999, Nett learned of the repeated complaints by Plaintiff and his father; a meeting was immediately scheduled, and Plaintiff lost his job. Second, when Nett reentered the conference room after his discussion with Sibiga, he allegedly said, "Great. You're fired." A jury could view Nett's enthusiastic, immediate action as evidence that he was already intent on firing Plaintiff, and merely looked for an excuse (i.e., pretext) anywhere he could find one. Third, even Sibiga concedes that when he told Nett about Plaintiff's allegations of harassment and abuse, Nett was utterly dismissive of the idea that Tinseltown could be a hostile working environment. The same dismissiveness was apparent in the conference between Nett and Plaintiff. Finally, and perhaps most important, an assistant manager had explicitly warned Plaintiff that complaining directly to higher management could possibly result in his termination. A reasonable jury could conclude that this statement evidences Defendant's predisposition to deal harshly with employee protests.

All of this evidence bears directly upon Region Leader Nett's mental state or intent and the more generalized view of Defendant toward complaining employees. The jury may ultimately ignore this evidence or conclude that it does not prove a purpose contrary to that asserted elsewhere. However, the Court concludes that the jury could determine from this evidence that Defendant's proffered reason was not its true reason, and that retaliation was the real motivating factor. Therefore, the Court must also deny Defendant's motion as to the second claim.

The Court will enter an order consistent with this Memorandum Opinion.

ORDER

Defendant moved for a summary judgment. Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that Defendant's motion is DENIED.