Opinion
No. 03 Civ. 5714 (DC).
August 17, 2004
S. PITKIN MARSHALL, ESQ., New York, New York, Attorney for Plaintiff.
JEFFREY S. KARP, P.C., Jeffrey S. Karp, Esq., New York, New York, and STEVEN E. STEIN, ESQ., New York, New York, Attorneys for Defendants.
OPINION
In this employment discrimination case, plaintiff James Hester alleges that defendants Denise Rich, 1600 Broadway, Inc. ("1600 Broadway"), IGD Music Media, Inc. ("IGD"), and Denise Rich Songs, Inc. ("DRS") (collectively "defendants") unlawfully discriminated against him on the basis of sexual orientation and disability when he was discharged after he informed defendants that he had tested positive for HIV. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendants' motion is granted and the complaint is dismissed.
STATEMENT OF THE CASE
I. The FactsViewed in the light most favorable to Hester, the facts are as follows:
A. Background
Hester, an openly gay man, worked for the defendants for approximately six years before he was discharged in early 2002. (Hester Dep. 8:21-9:5). Hester provided services in the area of public relations, promoting Rich as a songwriter and placing songs written by Rich on various albums. (Id. 8:11-9:5; Rich Dep. 10:12-12:16). Hester received a monthly salary, but did not have health insurance through defendants. (Hester Decl. ¶ 52). During the course of his employment, however, Hester's doctor bills were paid by Rich. (Id. ¶ 53).
B. Contract Negotiations
In late 1998 Hester approached Rich and asked for a large increase in salary. (Hester Decl. ¶ 9). Rich agreed generally to increase Hester's salary, but when they were unable to reach a more formal and specific agreement Hester retained an attorney to negotiate an employment contract. (Id. ¶¶ 10-11). The negotiations lasted until June 7, 2001, when Hester signed three documents, entitled "Independent Contractor Payments," "Mutual Release," and "Work for Hire Confidentiality Agreement." (Id. ¶ 31).
Pursuant to the June 7, 2001 agreements, Hester's salary was increased from $6,000 to $20,000 per month retroactive to 1999. (Hester Decl. ¶ 32; Defs.' 56.1 Statement Ex. 17)). As a result, Hester received a lump sum of $320,000. (Defs.' 56.1 Statement Ex. 17). The parties contemplated the possibility of a further agreement in the future, but specified that they were not obligated to enter into any additional agreement. (Defs.' 56.1 Statement Ex. 19 ¶ 1).
C. The Harris Complaint
In November 2001, Hester's former assistant, Taquana Harris, filed a complaint with the New York State Division of Human Rights (the "NYSDHR") charging Hester with hostile work environment sexual harassment (the "Harris Complaint"). (Defs.' 56.1 Statement Ex. 23). IGD and DRS were named in the complaint as respondents and Hester was named as "Aider and Abettor." (Id.). The Harris Complaint alleged that Hester repeatedly used vulgar and sexually explicit language towards Harris in the workplace and cited several examples of Hester's use of such language and his abusive behavior. (Id.). Harris described these examples in further detail during her deposition in this case. (E.g., Harris Dep. 47:6-17).
While the Harris Complaint was pending, Harris instructed her attorney to tell IGD attorneys that she would not settle unless Hester were fired. (Harris Dep. 88:4-15). Harris testified, "I wanted to have [Hester] fired and I also wanted a chance to talk to [Rich] and tell her what was happening and . . . [that] I didn't want to sue her, but it was her company and she had to be held accountable for her employee, Mr. Hester." (Id. 89:8-13). Harris settled her claims against IGD and DRS in the summer of 2002 — after Hester was fired. (Id. 83:18-20; 84:14-19). D. Hester's Inappropriate and Abusive Behavior in the Workplace
The terms of the settlement are subject to a confidentiality agreement. (Harris Dep. 85:4-10).
When Harris quit her job as Hester's assistant, Mirta Rinaldi, one of defendants' office managers and Hester's supervisor, attempted to speak to Hester to find out what had happened. She was unable to speak to Hester, however, because he "was in one of those rages that he has — you know, he yells. He yells. And gets furious and red and very upset, so sometimes you can't even talk to him when he's that way." (Rinaldi Dep. 121:25-126:4).
After defendants were served with the Harris Complaint, Rich asked her attorney, Lee Goldberg, to investigate Harris's allegations. (Defs.' 56.1 Statement ¶ 53). Goldberg had witnessed Hester's "crude" language and "uncontrollable demeanor" towards Rich's employees and clients in the past. (Goldberg Dep. 40:9-41:18). As part of his investigation, Goldberg learned the names of several current and former employees who could provide information regarding the validity of the Harris complaint and Hester's behavior in the workplace. (Id. 36:6-38-23).
There were frequent complaints about Hester from his former assistants and coworkers in 2001. (See Rinaldi Dep. 123:3-10, 123:23-124:3, 125:8-126:9; Powell Dep. 32:24-33:3; Hart Dep. 18:10-18:17). Gail Powell, an assistant who worked for Hester at the same time as Harris, testified that when she worked for the defendants, the work environment was "unbearable" primarily because of the way Hester treated her. (Powell Dep. 73:3-8). "Any little incident, [Hester] would just fly off the handle. He was like enraged, throwing things, tantrums. He would just be rude to people. . . ." (Id. 39:2-5). Powell corroborated much of the Harris Complaint and provided several examples of Hester's use of profanity and his abusive behavior. (E.g., Powell Dep. 34:15-21; 40:3-41).
Another former assistant to Hester, Rosemary Hart, also testified to Hester's "screaming, bursts of temper, constant dissatisfaction, unpleasantness." (Hart Dep. 17:23-24). When she first began working for Hester in the fall of 2001, she was "screamed at for not knowing things which I was just coming across for the first time." (Id. 17:25-18:3). Hart was subjected to Hester's verbal abuse on an almost daily basis from October through December 2001. (Id. 24:16-23). Hart testified to a particular incident that occurred on September 20, 2001, the day before her father died from an illness. According to Hart, she was on the phone with her mother and became "emotional." (Hart Dep. 19:21-23). Hester grabbed her by the arm and physically pulled her away from her desk. (Id. at 23-25). "[Hester] said if you want to take a break, get up from your desk and take a break somewhere else." (Id. 19:19-21). When she explained that her father was very ill, Hester did not respond. (Hart Dep. 20:2-7).
The evidence of Hester's inappropriate workplace behavior was not limited to his interactions with his assistants. In the summer of 2001, South African songwriter Sedrick Samson was in New York to work with defendants. "[Hester] was very abusive to [Samson]." (Rich Dep. 80:8-18). Rich confronted Hester about his behavior and told him that he could not be so rude to people. (Rich Dep. 82:11-83:3). Rich and Hester "had a fight" about his behavior, but Hester did not apologize. (Id. 82:7-16).
E. Rich Hires a Consultant to Evaluate her Music Businesses
In October or November 2001, Rich hired Doreen Dorion to evaluate her music businesses. (Dorion Dep. 32:20-33:5). Rich explained to Dorion that she wanted to make her companies profitable and that she needed help establishing an organized supervisory structure. (Id. 45:4-46:2; Rich Dep. 58:19-59:12). To produce an evaluation for Rich, Dorion conducted formal interviews of Rich's employees, including Hester, and spoke with employees in a less formal manner about their job functions and how they related to other employees. (Dorion Dep. 32:20-33:11). During her interaction with Rich's employees, Dorion observed that Hester "was rude and showed a lot of anger and resentment in the workplace toward the other employees." (Id. 64:17-19). Within seven or eight weeks of the start of Dorion's consultancy, she advised Rich that she believed Hester should be dismissed. (Id. 80:12-25; Rich Dep. 59:8-12).
Based on her observations, Dorion concluded "that the core problem in the music publishing division were the people that were operating the music publishing division, and that was Jimmy Hester." (Id. 115:5-9). On or about January 2, 2002, Dorion sent Rich a letter summarizing her findings and containing several recommendations. (Defs.' 56.1 Statement Ex. 28). The letter first addressed Hester's work performance. "Keeping aside for a moment the recent developments regarding [the Harris Complaint, Hester's] role at DRS and his performance [have] been questionable. The lack of experience in business management, as well as music publishing has caused a liability for you, and it's growing." (Defs.' 56.1 Statement Ex. 28 at 1). The letter went on to address Hester's failure to use his public relations skills to Rich's benefit. (Id. at 1). Dorion also concluded that Hester "holds much too much power, without any direction or accountability to anyone. I highly recommend you consider terminating his employment completely." (Id. at 1).
The document is mistakenly dated January 2, 2001.
Recognizing that Rich might find it difficult to terminate Hester's employment, Dorion also suggested that Rich consider restructuring Hester's role at DRS. (Id. at 1-2). Specifically, Dorion recommended that Hester's work be limited to public relations with "limited and outlined" responsibilities. (Id. at 2). "It is important that [Hester] have very little authority and he starts reporting to someone. . . . It is in your best interest to keep him . . . away from other employees." (Id.). "Please bear in mind that I [f]eel [Hester] should ultimately be terminated no matter what position he is offered." (Id.).
F. The Probation Letter
In December 2001, Lee Goldberg prepared a draft of a letter with the header "Probation and Change of work assignment" (the "Probation Letter"). (Defs.' 56.1 Statement Ex. 30). The Probation Letter referenced the Harris Complaint and provided that Hester would be placed on probation for sixty days. (Id.). The Probation Letter provided that Hester's duties would be limited to "seeking public relations opportunities" and that he could not act or bind Rich without authorization from a supervisor. (Id. at 1-2). The Probation Letter also provided that Hester would be discharged immediately "in the event that any additional complaints are made . . . concerning your conduct and behavior and [defendants find] such complaints to be valid and legitimate." (Id. at 2). Finally, the letter conditioned Hester's "continued engagement as a consultant" on his immediate enrollment "in a sensitivity training/anger management program." (Id.).
The draft Probation Letter was sent to Rich at some time after December 18, 2001, and a final version, dated January 9, 2002, was printed on Loeb Loeb letterhead and signed by Goldberg. (Id. Ex. 31; Goldberg Dep. 111:6-10).
The text of the finalized Probation Letter is identical to the draft version.
Hester's attorney, S. Pitkin Marshall, Esq., submitted a declaration in which he alleges that the draft version "is almost certainly backdated." (Marshall Decl. ¶ 5(b)). Marshall also alleges that the finalized Probation Letter "may well have been written, or modified on January 10." (Id.). Marshall cites no evidence to support his speculation.
G. Hester's HIV Status
On the evening of January 9, 2002, Hester received a voicemail message from his doctor indicating that the results of a recent physical examination revealed "a serious problem with [Hester's] blood." (Id. 16:12-17:17). Hester suspected that he was infected with HIV and immediately called his doctor to confirm the diagnosis. (Id. 17:18-23, 22:14-25). According to Hester, when he was unable to reach his doctor to confirm the diagnosis, he called Rich. (Id. 19:6-20:18). Hester told Rich about the message and said, "I'm scared out my wits. . . . I know I have HIV. I know I have HIV." (Id. 20:16-18). Rich told him, "you don't have HIV. Doctors always mess up blood tests. . . . Calm down. Don't worry." (Id. 20:19-21). After urging Hester to get a second test, Rich told Hester that she would call him back. (Id. 21:10-16). Hester and Rich spoke a second time that evening and Rich directed Hester to have lunch with Goldberg the next day. (Id. 21:17-22:4).
The next evening, January 10, 2002, Hester spoke to his doctor who confirmed that Hester had tested positive for HIV. (Id. 55:19-56:3).
H. Hester is Discharged
In the meantime, the Probation Letter had been delivered to Hester at a lunch meeting on January 10, 2002. (Hester Dep. 24:6-12). When Hester objected to the terms set forth in the Probation Letter and refused to sign it, he was informed by Goldberg that he was no longer permitted to work at Rich's offices. (Goldberg Dep. 125:13-15; Hester Dep. 27:11-14).
Hester returned to the Rich offices after lunch and was told by Goldberg to leave. (Hester Dep. 27:15-28). Hester refused to leave and instead called Rich at her home in Aspen, Colorado. (Id. 28:6-11). Rich told him that he did not have to leave the office. (Id. 28:17-19). Eventually he did leave: Hester worked from his home from January 13, 2002. On January 31, 2002, Hester faxed a letter (dated January 20, 2002) to Rich asking her to clarify his employment status. (Defs.' 56.1 Statement Ex. 32). On February 18, 2002, he read in Page Six, a gossip column of the New York Post, that he had been dismissed. (See Hester Dep. 29:3-14, 36:4-14).
Rich testified that she told Hester to work in the office because "there were things that still needed to be completed." (Rich Dep. 192:13-193:7).
It is unclear, from defendants' point of view, when Hester was actually dismissed. Rich's deposition testimony was imprecise, as it appears that she was reluctant to dismiss Hester. She testified:
A. . . . I was advised very strongly by Lee and also by Doreen not to work with him anymore but there were a lot of things that were still pending and that — so, you know, I remember that I also felt sorry for him and I felt bad for him and so . . .
Q. Because he had HIV?
A. Yes, I was trying to — by the time that I knew he had HIV, I felt very bad for him and I was trying to be my usual Pollyanna and saying, I know everything will be fine and sort of, you know, I wanted to finish up everything that we had, things that were pending and kind of let him down easy. I remember that.
. . . .
A. I believe he was terminated but I was still — there were still things, you know, even though he was terminated, we had a friendship and there was an emotional contact and there were also things that needed to be cleaned up and finished.
(Rich Dep. 187:20-188:9, 188:21-25). Rich testified that Hester "was terminated basically because he would not sign the [Probation Letter]." (Id. 192:11-12). She believed that she started to tell the "outside world" that Hester had been discharged when she started to speak to a prospective replacement for Hester's position. (Id. 189:13-19). I. Other HIV Positive Employees
In February 2002, David Munk was hired as "Creative Director" and took over Hester's duties with DRS. (Munk Aff. ¶¶ 3, 5). Munk was gay and HIV positive. (Id. ¶ 4; Hester Dep. 64:7-12). Rich was aware of Munk's sexual orientation and HIV status when she hired him. (Munk Aff. ¶ 4).
Kieron Kawall handled public relations for Rich and her charitable foundation for five years starting in 1998. (Kawall Aff. ¶ 1). Kawall was gay and HIV positive. (Id. ¶ 2). According to Kawall, his HIV status and sexual orientation never affected his business relationship with Rich. (Id.).
II. Procedural History
Hester timely filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC"). (Am. Compl. ¶ 10). On or about May 16, 2003, the EEOC issued Hester a right-to-sue letter. (Id. ¶ 12).
On July 31, 2003, Hester brought this action asserting discrimination claims under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000(e) et seq. ("Title VII"), the New York State Human Rights Law (the "NYSHRL"), the New York City Human Rights Law (the "NYCHRL"), and New York common law. (Compl. ¶ 1). In response to defendants' request to file a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, Hester filed an amended complaint on August 28, 2003.
The Amended Complaint bases federal jurisdiction on Hester's claims that he was discriminated against due to his HIV status in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"). (Am. Compl. ¶ 34). The Amended Complaint also asserts state law discrimination claims based on plaintiff's HIV status and his sexual orientation under NYSHRL, NYCHRL, and New York common law. After discovery, defendants filed the instant motion for summary judgment dismissing the action. Plaintiff cross-moved for summary judgment asking the Court to rule, as a matter of law, that Hester was defendants' employee for purposes of the ADA, and that Hester was disabled at the time he was terminated. Also pending is a motion by plaintiff to compel certain discovery.
Plaintiff asserts a claim for prima facie tort. The parties do not separately address this claim. For the reasons set forth below, the claim is meritless and is dismissed.
DISCUSSION
I. Legal Standards A. Summary Judgment
The standards governing motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be sufficient evidence in the record to support a jury verdict in the nonmoving party's favor to create an issue for trial. See id.
To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). The nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. Nat'l Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
B. Hester's Discrimination Claims 1. The ADA Claim
The ADA prohibits discrimination against any "qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); see also Buckley v. Consol. Edison Co., 155 F.3d 150, 153-54 (2d Cir. 1998). As the Seventh Circuit has noted, "Congress enacted the ADA to `level the playing field' for disabled people. Congress perceived that employers were basing employment decisions on unfounded stereotypes." Siefken v. Vill. of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995).
To establish his claim of discrimination under the ADA, Hester must show that (1) defendants are covered by the ADA; (2) he suffers from a disability — or is regarded as suffering from one — within the meaning of the ADA; (3) he was qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. See Giordano v. City of N.Y., 274 F.3d 740, 747 (2d Cir. 2001) (citations omitted).
2. The NYSHRL and NYCHRL Claims a. The Disability Claims
For the most part, disability claims brought pursuant to the NYSHRL and NYCHRL are construed similarly to ADA claims. Although the definition of disability under the NYSHRL is broader than the federal definition, Reeves v. Johnson Controls World Servs., Inc. 140 F.3d 144, 155 (2d Cir. 1998); see State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-19 (1985);Anyan v. N.Y. Life Ins. Co., 192 F. Supp. 2d 228, 245 (S.D.N.Y. 2002), the NYSHRL substantially resembles the ADA, providing in pertinent part:
It shall be an unlawful discriminatory practice: (a) For an employer . . ., because of the . . . disability . . . of any individual . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment.
N.Y. Exec. Law § 296; see Mohamed v. Marriott Intern., Inc., 905 F. Supp. 141, 156 (S.D.N.Y. 1995). The NYCHRL is also substantially similar to the NYSHRL and the ADA. See id. b. The Sexual-Orientation Discrimination Claims
The NYSHRL and NYCHRL also prohibit discrimination on the basis of sexual orientation. To establish his claims of discrimination on the basis of sexual orientation, Hester must demonstrate that (1) he is a member of a protected class; (2) who was qualified for his job; (3) and was discharged; (4) under circumstances giving rise to an inference of discrimination. James v. N.Y. Racing Ass'n, 259 F.3d 149, 153-54 (2d Cir. 2000).
II. Application
Although the elements of Hester's disability discrimination claims are somewhat different than the elements of his sexual orientation discrimination claims, both types of claims require him to demonstrate that he was dismissed for an improper reason. Here, I assume that Hester was an "employee" of defendants and that he has satisfied the first three elements of a disability claim under the ADA, NYSHRL, and NYCHRL. I also assume that Hester has made out the first three elements of a sexual orientation discrimination claim under the NYSHRL and NYCHRL. In other words, I assume, for purposes of this motion, that defendants are covered by the ADA, Hester was disabled within the meaning of the statutes and was a member of a protected class because of his sexual orientation, he was qualified for his job, and he was discharged. Therefore, I proceed directly to the ultimate question of whether Hester has presented sufficient evidence from which a reasonable jury could find that he was discharged because of his HIV status or sexual orientation. I do so by evaluating first Hester's evidence, then defendants' evidence, and finally the record as a whole, keeping in mind the elusiveness of proof of discrimination and the principle that the jury is "entitled to view the evidence as a whole." Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir. 1997) (national origin); see also Siano v. Haber, 40 F. Supp. 2d 516, 520 (S.D.N.Y. 1999) (age), aff'd mem., 201 F.3d 432 (2d Cir. 1999); Lapsley v. Columbia Univ., 999 F. Supp. 506, 515 (S.D.N.Y. 1998) (race).
1. Hester's Evidence
Hester's discrimination claims are based almost entirely on the fact that his dismissal occurred soon after he informed Rich that he had tested positive for HIV. (Hester Dep. 124:17-23). After Hester informed Rich on January 9, 2002 that he thought he was HIV positive, she directed him to have a lunch meeting with Goldberg the next day. (Hester Dep. 21:18-22:4; Hester Decl. ¶¶ 110-12). At the lunch meeting, Goldberg criticized Hester about the Harris Complaint and, after having Hester read the Probation Letter, asked him to countersign it. (Hester Decl. ¶ 113). Hester generally denied the allegations of the Harris Complaint and asked Goldberg to clarify the portion of the letter regarding a reduction in Hester's salary. (Id. ¶ 114). Hester claims that he refused to sign the letter because Goldberg informed him that his salary would be reduced by at least 50%, and that by signing the letter he would be admitting the allegations of the Harris complaint. (Id. ¶¶ 114-15). On January 31, 2002, Hester faxed a letter to Rich asking her to clarify his employment status. (Defs.' 56.1 Statement Ex. 32). Hester was fired less than three weeks later. 2. Defendants' Evidence
In an "Errata Sheet" pursuant to Fed.R.Civ.P. 30(e), Hester submitted additional testimony to bolster the portion of his deposition where he testified that his evidence of discrimination was based solely on the timing of his termination. (Letter from Karp to the Court of 3/18/04 Exs. A and F). In the supplemental testimony, Hester claims that his evidence of discrimination also includes Goldberg's "anti gay statements and behavior." (Id. Ex. A). Hester also relies on the declaration of Rich's stylist and make-up artist, Bradford Boles. (Boles Decl. ¶ 1). According to Boles, Goldberg "appeared to be a virulent homophobe" who made "anti gay gestures" and "anti gay remarks to co workers about" Boles. (Id. ¶ 7). Neither Hester's supplemental testimony nor the Boles declaration specifies the "anti gay" gestures and comments attributed to Goldberg. Nor does the Boles declaration indicate when the gestures occurred, when the comments were made, or how Boles learned of Goldberg's comments to coworkers. The statement that Goldberg "appeared to be a virulent homophobe" is inadmissible as this is Boles's speculation. The conclusory comment that Goldberg made "antigay remarks to coworkers about Boles" is inadmissible because it is based on hearsay and because Boles does not specify what was said when.
Defendants claim that the decision to terminate Hester's employment was based on several factors, including the Harris complaint, Hester's inappropriate and abusive behavior in the office, his refusal to consent to participating in an anger management program, and his lack of success promoting Rich's music business.
i. The Harris Complaint
Hester's former assistant, Harris, filed a sexual harassment charge against IGD and DRS with the NYSDHR based on Hester's conduct. Harris complained that Hester used vulgar and sexually explicit language in the workplace and that he engaged in other abusive behavior. Rich testified that the Harris Complaint exemplified how Hester's behavior had become an unacceptable liability and was therefore a factor in her decision to dismiss him. (E.g., Rich Dep. 130:11-131:19). Defendants were required to defend against the charges and eventually settled Harris's claims.
ii. Hester's Behavior
Rich, Harris, Powell, Goldberg, Rinaldi, Dorion, and Hart all testified to Hester's unpredictable fits of anger, and his rude, abusive, cruel, inappropriate, and unprofessional behavior in the workplace when dealing with Rich employees and clients. (E.g., Rich Dep. 80:8-18; Harris Dep. 45:4-46:9, 47:6-17; Powell Dep. 34:15-21, 40:3-41, 73:3-8; Goldberg Dep. 40:9-41:18; Rinaldi Dep. 121:25-126:4; Hart Dep. 17:23-18:17, 24:16-23; Dorion Dep. 64:17-19).
Hester admitted that "at times" he had a problem with his temper. (Hester Dep. 62:14-16). He also admitted that he "cussed" around the office and frequently became excited, sometimes "extremely" excited in the office. (Id. 78:14-17). Hester admitted that "the very worst" of this sort of behavior from him occurred in April and May 2001. (Id. 78:18-79:2).
iii. Hester's Refusal to Enroll in an Anger Management Program
Defendants wanted Hester to immediately enroll in an anger management program, and the Probation Letter advised Hester that he was required to do so as a condition to his continued employment. He refused to participate.
iv. Dorion's Recommendation
After conducting an evaluation of Rich's music business, Dorion concluded that Hester was the "core problem." (Dorion Dep. 115:5-9). Dorion's conclusion was based on her perception that Hester did not have sufficient experience in the music publishing business. (Defs.' 56.1 Statement Ex. 28). Additionally, she determined that Hester had failed to use his skills in public relations to promote Rich individually or her music businesses. (Id.). Accordingly, Dorion strongly recommended to Rich that she fire Hester. (Id.).
v. Hester's Replacement
Dorion recommended that Rich hire Munk as the Creative Director of DRS. (Dorion Dep. 102:10-103:12). Munk, who is gay and HIV positive, was subsequently hired by Rich and took over Hester's role developing Rich as a songwriter. (Hester Dep. 64:7-12, 116:4-7; Munk Aff. ¶¶ 2, 4). Rich was aware of Munk's HIV status and sexual orientation when she hired him. (Munk Aff. ¶ 4).
3. The Record as a Whole
Considering the evidence as a whole, and resolving all conflicts in the evidence and drawing all reasonable inferences in Hester's favor, I conclude that no reasonable jury could find that he suffered adverse employment action because of his HIV status or sexual orientation. Hester is obliged to present sufficient evidence to support such a finding by a reasonable jury. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (to defeat summary judgment, plaintiff is obliged not just to produce "some" evidence, but must produce sufficient evidence to support a rational jury verdict in plaintiff's favor). He has not done so. In the end, his admissible evidence of discrimination consists solely of evidence that he was gay and HIV positive, and was fired soon after he revealed his HIV status.
The record contains overwhelming evidence to show that Hester was fired not because of his sexual orientation or HIV status but because of his inappropriate behavior in the workplace, his abusive treatment of subordinates and coworkers, and his poor performance managing and promoting Rich's music business. (E.g., Defs.' 56.1 Statement Exs. 28 and 31). Numerous individuals — coworkers, a client, a consultant, and defendants' lawyer — witnessed and complained of Hester's boorish and obnoxious behavior. Harris complained of sexual harassment, and even assuming a genuine issue exists as to whether Hester actually sexually harassed her, no dispute exists as to the fact the charge was filed. Defendants took the charge seriously, were forced to defend the matter, and eventually settled the claim. Hester refused to acknowledge any deficiencies in his performance and refused to address his personality issues, as defendants requested. An outside consultant strongly recommended that Hester be dismissed. There is no evidence that Hester's sexual orientation was ever an issue during the approximately six years that he worked for defendants as an openly gay male, and, indeed, he was replaced by another openly gay man.
The timing of Hester's dismissal is his only evidence that his HIV status had anything to do with the decision to discharge him. (Hester Dep. 124:17-23). Defendants, however, have introduced evidence that Rich was considering dismissing Hester long before he reported that he had tested positive for HIV. (Dorion Dep. 80:12-25; Rich Dep. 59:8-12). Dorion testified that she first advised Rich to fire Hester several weeks after she began her evaluation of the Rich music businesses and then made the recommendation in writing on January 2, 2002 — a week before Hester learned he was HIV positive. (Defs.' 56.1 Statement Ex. 28). Goldberg testified that after concluding his investigation of the Harris Complaint in late 2001, he drafted the Probation Letter, which conditioned Hester's continued employment on his participation in an anger management program. (Goldberg Dep. 108:18-109:12). Indeed, the Probation Letter was presented to Hester by Goldberg before Hester had spoken to his doctor to confirm his HIV diagnosis. (Hester Dep. 15:8-18:20). Hester refused to agree to enroll in such a program. Finally, Hester was replaced by another HIV positive individual. Even assuming, then, that Hester was not actually fired until after he revealed his HIV status to Rich, no reasonable jury could find that his HIV status was a motivating factor in defendants' decision to terminate his employment.
Based on this record and all the circumstances surrounding his dismissal, a reasonable jury could only find that Hester was fired because of his poor performance and inappropriate behavior. A reasonable jury could not find that Hester was discriminated against by defendants on the basis of his HIV status or sexual orientation. Accordingly, defendants' motion for summary judgment must be granted.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is granted as to all claims. The Amended Complaint is dismissed as to all defendants, with prejudice and with costs. The Clerk of the Court shall enter judgment accordingly.
Plaintiff's cross-motion for partial summary judgment and his motion to compel certain discovery are denied as moot.
SO ORDERED.