Dodson v. CBS Broadcasting Inc.

Full title: GARY W. DODSON, Plaintiff, v. CBS BROADCASTING INC., et al. Defendants

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

Date published: Jun 15, 2004

02 Civ. 9270 (KMW) (AJP) (S.D.N.Y. Jun. 15, 2004)

Opinion

02 Civ. 9270 (KMW) (AJP).

June 15, 2004

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Kimba M. Wood, United States District Judge:

Pro se plaintiff Gary Dodson brings this action under Title VII, the Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law against his former employer, CBS Broadcasting Inc. ("CBS"), and four CBS employees (collectively, "defendants"), alleging gender and age discrimination in employment conditions and refusal to hire Dodson as a full-time employee, and retaliation for Dodson's complaints of gender discrimination through reduced hours and termination. (See generally Dkt. No. 1: Compl.) Presently before the Court is defendants' summary judgment motion. (Dkt. Nos. 31-36, 46.)

For the reasons set forth below, defendants' summary judgment motion should be DENIED (except for the claim against individual defendant Pettiti).

FACTS

Defendant Anthony DiGiovanni hired Plaintiff Gary W. Dodson as a per diem videotape editor at WCBS-TV¹ on June 29, 1998.² (Dkt. No. 32: CBS 56.1 Stmt. ¶¶ 1-2; Dkt. No. 44: Dodson 56.1 Stmt. ¶¶ 1-2; Dkt. No. 32: DiGiovanni Aff. ¶ 3; Dodson Dep. at 57-58.) Dodson was born in 1954 and was 43 years old when hired and 45 years old when fired. (CBS 56.1 Stmt. ¶ 7; Dodson Dep. at 26, 195; Dkt. No. 1: Compl. ¶ 5.) DiGiovanni was born in 1946. (CBS 56.1 Stmt. ¶ 8; DiGiovanni Aff. ¶ 1.) Until Dodson's termination in June 2000, DiGiovanni was Dodson's immediate supervisor, while Scott Kremer and defendant Michael Kentrianakis supervised Dodson on nights and weekends. (CBS Dodson 56.1 Stmts. ¶¶ 10-11; Dodson Dep. at 65; DiGiovanni Aff. ¶ 13.) Dodson also was supervised by Al Petrasko, who was WCBS's Technical Operations Manager³ for five months during late 1999 and early 2000. (CBS Dodson 56.1 Stmts. ¶ 12; DiGiovanni Aff. ¶¶ 14-15.)

CBS's staff videotape editors are represented by the International Brotherhood of Electrical Workers ("IBEW") for collective bargaining purposes. (CBS Dodson 56.1 Stmts. ¶ 3; DiGiovanni Aff. ¶ 4 Ex. B: CBS-IBEW CBA.) Under the CBS-IBEW collective bargaining agreement, per diem editors are at-will employees, hired as needed based on an increased workload or absence of staff editors. (CBS Dodson 56.1 Stmts. ¶ 5; DiGiovanni Aff. ¶ 5 Ex. B: CBA at 39-41, 82.) During Dodson's employment, WCBS had about 20 per diem editors and 20 full-time staff⁴ and 4.03(g) editors.⁵ (CBS 56.1 Stmt. ¶¶ 6, 13-15; Dodson 56.1 Stmt. ¶¶ 13-15; DiGiovanni Aff. ¶ 5; Dodson Aff. ¶ 3.)

4 "Staff" editors are full-time employees entitled to healthcare and other benefits.

5 Under § 4.03(g) of the CBA, 4.03(g) editors are full-time employees but are not entitled to certain benefits enjoyed by staff editors, such as seniority. (CBS Dodson 56.1 Stmts. ¶¶ 13-14; DiGiovanni Aff. ¶ 7 Ex. B: CBA at 40-41.)

Dodson's responsibilities as a per diem editor included working with CBS reporters to edit news stories, editing voiceovers onto videotapes, operating the beta-cart machine for on-air playback, and taking in feeds on a microwave receiver. (CBS Dodson 56.1 Stmts. ¶¶ 17-18; DiGiovanni Aff. ¶ 16; Dodson Dep. at 94-95.) According to Dodson, however, a per diem editor's duty was generally limited to editing videotape, and he "was the only per diem or 4.03(g) editor" who could also perform the functions of a microwave engineer or beta cart operator. (Dodson 56.1 Stmt. ¶¶ 17-18.) Dodson's Allegations of Gender Discrimination ⁶ Hours Worked

6 To the extent that Dodson has also claimed age discrimination, it is part and parcel of his gender discrimination claim, since he claims CBS favored young females. The Court therefore will consider it as a gender discrimination claim.

Dodson was scheduled on a week-to-week basis. (CBS 56.1 Stmt. ¶ 9; Dodson Dep. at 60-61.) In September or October 1998, DiGiovanni told Dodson that Dodson would generally work each Saturday and Sunday, but that his weekday schedule would vary. (CBS 56.1 Stmt. ¶ 16; Dodson 56.1 Stmt. ¶¶ 9, 16; Dodson Dep. at 60-61.) According to Dodson, in early October 1998, DiGiovanni "informed [Dodson] that because of the high quality of [Dodson's] work, [Dodson] would be placed on the 'elite' freelance list." (Dodson 56.1 Stmt. ¶ 16; Dodson Aff. ¶ 5.)

Dodson alleges that "DiGiovanni consist[e]ntly scheduled less experienced female editors and favored those female editors with plum assignments and more hours." (Dodson 56.1 Stmt. ¶ 16.) DiGiovanni contends that he did not schedule female per diem editors to work more hours than males, and did not schedule employees under 40 years of age to work more hours than those over 40. (CBS 56.1 Stmt. ¶¶ 41, 42; DiGiovanni Aff. ¶¶ 46, 49-62 Exs. H, I; Dkt. No. 33: Hoffman Aff. Exs. A-C.) In particular, from Dodson's arrival on June 29, 1998 through December 31, 1998, DiGiovanni notes that he scheduled Dodson to more work hours than female per diem editors Lesley Meadows and Jessica Somers. (CBS 56.1 Stmt. ¶ 45; DiGiovanni Aff. ¶ 60 Ex. I; Hoffman Aff. Ex. A.) However, Dodson notes that Meadows worked at ABC from June 20, 1998 to September 12, 1998, while Dodson worked each week. (Dodson 56.1 Stmt. ¶ 45.) CBS also claims that Dodson also had more scheduled hours than female per diem editor Holly Fontana from his start date until she became a 4.03(g) editor in October 1998. (CBS 56.1 Stmt. ¶ 46; DiGiovanni Aff. ¶ 56 Ex. H.)

DiGiovanni states that in 1999, he scheduled Dodson for more hours than Meadows, Somers, Lesley Peggot, and Kelly Pereira. (CBS 56.1 Stmt. ¶ 47, DiGiovanni Aff. ¶ 61 Ex. I; Hoffman Aff. Ex. B.) On average, DiGiovanni scheduled Dodson for more hours per week than Peggot between January 2000 and Dodson's last day at CBS in June 2000, even though Dodson took a six-week vacation during that period. (CBS 56.1 Stmt. ¶ 48; DiGiovanni Aff. ¶ 62; Hoffman Aff. Ex. C.) Furthermore, in 1998, 1999, and 2000, DiGiovanni scheduled a male per-diem editor over age 40, Robert Rossicone, for more hours than female editors Peggot, Pereira, Burnette, Meadows, and Somers. (CBS 56.1 Stmt. ¶ 44; DiGiovanni Aff. ¶ 59; Hoffman Aff. Exs. A, B, C.)

Dodson takes issue with CBS' representation of per diem editors' hours, arguing that the exhibits to the affidavit of William Hoffman, Senior Payroll Tax Accountant and former Director of Payroll Accounting, are incomplete, "vague, and extremely poor." (Dodson 56.1 Stmt. ¶ 41, citing Hoffman Aff. Exs. A-C.) Specifically, the exhibits do not list all per diem editors, and only include two females, the hours are not divided into months or quarters for comparison, nor are the columns totaled. (Dodson 56.1 Stmt. ¶¶ 41-43.) Hoffman states that the computer print-outs attached to his affidavit are "payroll records generated at [Hoffman's] direction for certain video-tape editors employed by CBS in 1998, 1999 and 2000, respectively." (Hoffman Aff. ¶ 3.) CBS employed twenty per diem editors during Dodson's period of employment (CBS 56.1 Stmt. ¶ 6), but Hoffman's payroll printouts only include the hours for eleven editors (Hoffman Aff. Exs. A-C.) Hoffman does not specify on what basis he decided to provide the payroll records of these particular editors. The Court has calculated and summarized Hoffman's printouts as follows: Total Per Diem Hours Per Year

MALES (DOB) 1998 1999 2000 Mulrenan (3/18/75) 1969.5 2757 2630 Sciangula (4/1/53) 246 425.5 440.5 Berman (10/29/69) 112 924.5 1421 Rossicone (10/29/53) 1930 1254 1911 Dodson (9/11/54) 699.5 1707.75 418 Strategias (2/28/70) n/a 125.5 410.5 Calarco (9/24/68) n/a 350.5 1908.75 FEMALES (DOB) 1998 1999 2000 Burnette (8/22/68) 767.5 1977 569.5 Meadows (11/19/64) 282.5 900.75 1925.5 Peggot (10/22/75) n/a 76.5 1235.5 Pereira (10/23/74) n/a 511 630.5 Fontana (n/a) 183 n/a 190 Somers (4/6/73) n/a n/a 631

(See Hoffman Aff. Exs. A-C; DiGiovanni Aff. ¶ 12 Exs. H I.)

CBS Receives Complaints About Dodson

According to Dodson's supervisors, defendants DiGiovanni and Kentrianakis, Dodson was "a generally competent, but not exceptional, editor" with an "unrealistically high opinion of his own abilities." (DiGiovanni Aff. ¶ 18; CBS 56.1 Stmt. ¶ 19; Dkt. No. 36: Kentrianakis Aff. ¶¶ 10-11.) Dodson, on the other hand, asserts that because he had worked at major broadcasting stations since 1988, his technical knowledge and experience was greater than DiGiovanni's or Kentrianakis', as well as that of female employees Somers, Fontana, Burnette and Meadows. (Dodson 56.1 Stmt. ¶ 19.) CBS asserts that Dodson generally did not personally observe other editors performing their duties, given that he and the other editors worked independently or with CBS reporters. (CBS 56.1 Stmt. ¶ 20; Dodson Dep. at 78-80, 82-83, 86-87, 104-08, 279-80.) Dodson disputes CBS's assertion, asserting that CBS' editing rooms are enclosed with large glass windows or doors and that as an "Assistant Supervisor [he] had many opportunit[ie]s to observe the work, and work habits of other Editors." (Dodson 56.1 Stmt. ¶ 20; Dodson Aff. ¶ 10.)

According to CBS, during 1998 through 2000, several WCBS reporters, including Vince Dementri, Kendra Farn, Emily Francis and Gary Apple complained to DiGiovanni that they did not want to work with Dodson because he was arrogant, conceited, and made the editing process "more stressful." (CBS 56.1 Stmt. ¶¶ 22-24; DiGiovanni Aff. ¶¶ 25, 70.) Other editors also complained about Dodson's behavior. (CBS 56.1 Stmt. ¶¶ 24, 30; DiGiovanni Aff. ¶¶ 23, 63-69, 75; Dkt. No. 32: Somers Aff.; Dkt. No. 32: Meadows Aff.) Kentrianakis told DiGiovanni that Dodson "made [him] nervous" when Dodson "arrogantly act[ed]" as if his work was under control, even when it was not. (Kentrianakis Aff. ¶ 23.) Dodson referred to himself as "Assistant Supervisor," even though CBS asserts that he had never been given that title or authority. (CBS 56.1 Stmt. ¶ 27; Kentrianakis Aff. ¶ 18; Dodson Dep. at 65-68.) Dodson maintains that he was in fact an Assistant Supervisor and should have been paid accordingly. (Dodson 56.1 Stmt. ¶ 27.)

As a result of the complaints, DiGiovanni and Kentrianakis concluded that Dodson had poor interpersonal skills (CBS 56.1 Stmt. ¶ 25; Kentrianakis Aff. ¶¶ 20-24, 28, 30; DiGiovanni Aff. ¶¶ 19, 22) and "agreed that scheduling [Dodson] for primarily weekends was a way to limit the disruption his behavior could cause." (Kentrianakis Aff. ¶ 23; CBS 56.1 Stmt. ¶ 37; DiGiovanni Aff. ¶ 22.). To further limit Dodson's interaction with others, including reporters who had complained about him, DiGiovanni tried to assign Dodson tasks such as editing voiceovers, which "did not require interaction between the editor and the reporter, unlike . . . editing a news story." (DiGiovanni Aff. ¶ 26; CBS 56.1 Stmt. ¶ 38; Kentrianakis Aff. ¶ 24.) According to DiGiovanni, the voiceover assignments were in no way related to Dodson's gender or age, and on "many occasions" he had given voiceover assigments to "numerous male and female editors, including Lori Burnette, Jessica Somers, and Leslie Meadows." (DiGiovanni Aff. ¶¶ 26-29; CBS 56.1 Stmt. ¶ 62; Kentrianakis Aff. ¶¶ 25-26.) Dodson alleges that DiGiovanni "consist[e]ntly assigned [him] to do voice-overs, the simplest form of editing, while much less experienced female editors were assigned to more complicated work, such as cutting packages," i.e., editing news stories. (Dodson 56.1 Stmt. ¶ 17.)

In February or March 2000, reporter and sports show host Gary Apple told DiGiovanni that he found Dodson arrogant and had difficulty working with him. (DiGiovanni Aff. ¶ 70; Kentrianakis Aff. ¶ 36.) According to DiGiovanni, "[a]round this same time," Kentrianakis suggested "transitioning the work" for Apple's show because Dodson was about to leave for an extended vacation. (DiGiovanni Aff. ¶¶ 71-72; Kentrianakis Aff. ¶ 37; CBS 56.1 Stmt. ¶ 66.) Kentrianakis "preferred to have permanent staff or 4.03(g) editors" to work on Apple's show specifically because permanent staff would "stay with the show until production was complete" and permanent staff were more reliable than per diems who could take work at other stations or take vacations at will. (Kentrianakis Aff. ¶ 37.) As a result of Apple's complaint and Kentrianakis' suggestion, DiGiovanni moved Dodson to an earlier Sunday shift and scheduled Burnette and Somers for the later shift that included Apple's show. (DiGiovanni Aff. ¶¶ 73-74; Kentrianakis Aff. ¶¶ 38-39; CBS 56.1 Stmt. ¶¶ 66-67.)

DiGiovanni received an increasing number of complaints about Dodson in 2000. (DiGiovanni Aff. ¶ 63.) Specifically, DiGiovanni "received several complaints that Dodson made inappropriate sexual comments to women and others in the workplace on numerous occasions." (CBS 56.1 Stmt. ¶ 30; DiGiovanni Aff. ¶¶ 63-68; Kentrianakis Aff. ¶ 48.) Dodson denies the allegations of inappropriate sexual comments and notes that he was never informed about such complaints nor did any employee ever file complaints against him pursuant to CBS' sexual harassment policy. (Dodson 56.1 Stmt. ¶¶ 30, 34.)

Jessica Somers was a per diem technician at CBS from May 1998 to May 1999 and returned as a 4.039(g) technician in February 2000. (Dkt. No. 32: Somers Aff. 1st ¶) Somers states that in 1998, when she was alone with Dodson, he "told [her] that it was 'nice to see a co-worker with legs,'" and that "he was not used to working around women." (Somers Aff.2d ¶) Several months later, Dodson asked Somers why she had been avoiding him. (Id.) When Somers explained that Dodson's comment in the elevator upset her, he apologized. (Id.) In February 2000, Somers reported to DiGiovanni that Dodson "treated [her] in an openly hostile manner." (Somers Aff.3d ¶; CBS 56.1 Stmt. ¶ 32; DiGiovanni Aff. ¶¶ 64-66.) For example, when Somers walked past an editing room occupied by Dodson, "he would sometimes get up and slam the door as [she] went by." (Somers Aff.3d ¶) On another occasion, Dodson took Somers' name off the door of the room in which she was working and replaced it with his. (Id.) When Somers told Dodson that she did not like the way he was treating her, Dodson "pretended not to hear [Somers] and said 'do you hear something' to a co-worker." (Id.) Somers reported Dodson's behavior, including the 1998 elevator incident, to DiGiovanni and asked DiGiovanni to remove her from the Saturday shift she shared with Dodson. (Somers Aff.3d ¶; DiGiovanni Aff. ¶¶ 64-66.) In light of Somers' complaints, DiGiovanni was even "more careful" when scheduling Dodson to limit his interaction with others. (DiGiovanni Aff. ¶ 66.)

Dodson notes that Somers' affidavit describes only "one incident that [Somers] says occurred in 1998, for which she admits [Dodson] apologized and which could have no bearing on a decision to remove [Dodson] from the schedule, two years later." (Dodson 56.1 Stmt. ¶ 49.) Dodson explained the second incident, noting that because Somers arrived forty-five minutes late for work, Kremer had assigned Dodson to her editing room. (Dodson 56.1 Stmt. ¶ 32.) According to Dodson, Somers interrupted his conversation with Rossicone to say "'You don't want to mess with me today, I'm having a bad day, and I'm not in the mood.'" (Dodson 56.1 Stmt. ¶ 32.) At that point, Dodson asked Rossicone "'do you hear something,'" to which Somers replied "'I'm going to fix you, I'm going to tell Tony [DiGiovanni] what you said.'" (Dodson 56.1 Stmt. ¶ 32.) Regarding Somers' request that DiGiovanni remove Dodson from her Saturday shift, Dodson contends that Somers did not like working Saturday nights because it "interfered with her social life." (Dodson 56.1 Stmt. ¶ 33.)

Per diem editor Leslie Meadow also complained to DiGiovanni that Dodson had made inappropriate comments to her. (Dkt. No. 32: Meadows Aff.2d ¶) Meadows stated that "on more than one occasion" Dodson referred to her and the other females supervised by Tony DiGiovanni as "Tony's Angels." (Meadows Aff.2d-3d ¶¶; CBS 56.1 Stmt. ¶ 35.) Meadows also reports that Dodson approached her in the hallway one night and complained about being scheduled for too few hours. (Meadows Aff.2d ¶) Referring to Meadows as one of "Tony's Angels," Dodson allegedly "pointed at [Meadows'] chest and said that [she] was getting more hours than he was . . . because of [her] 'tits.'" (Meadows Aff.2d ¶ CBS 56.1 Stmt. ¶ 36; DiGiovanni Aff. ¶ 69.) According to Meadows, Dodson "moved his hands through the air in the form of a female figure."⁷ (Meadows Aff.2d ¶ CBS 56.1 Stmt. ¶ 36; DiGiovanni Aff. ¶ 69.) Meadows reported the incident to union supervisor Scott Kremer and to DiGiovanni. (Meadows Aff.2d ¶) Meadows also testified that Dodson had told her that "he had visited nude beaches and had been with prostitutes," but did not recall when he made those statements. (Meadows Aff.3d ¶) Dodson admits that he told "most everyone" at CBS that he would be vacationing at a "clothing-optional resort." (Dodson Dep. at 298-301.)

7 Dodson notes that "Meadow's allegations, as set forth in her affidavit, have amplified significantly since they were described in [CBS'] January 2001 position statement. For example, the June 2002 affidavit states that [Dodson] used the word 'tits,' while the January 2001 position statement says only that [he] 'pointed.'" (Dodson 56.1 Stmt. ¶ 49.)

Dodson denies referring to Meadows and the other females as "Tony's Angels," but notes that it is not a derogatory term and reveals DiGiovanni's "preference for female editors." (Dodson 56.1 Stmt. ¶ 35.) Dodson also denies Meadows' allegation about the hallway incident. (Dodson 56.1 Stmt. ¶ 36.) According to Dodson, Meadows asked why she "had been getting the cold shoulder," and Dodson explained that "she came to CBS and got full weeks, while the rest of the male per diems, including [Dodson], had not been scheduled for full weeks for quite awhile, and that . . . was probably why." (Dodson 56.1 Stmt. ¶ 36.) Dodson believes Meadows "also was upset because [Dodson] knew that [Meadows] had gotten someone fired at ABC for sexual harassment." (Dodson 56.1 Stmt. ¶ 36.)

Dodson also "opened up a lock-blade folding knife and brandished it in front of" Kentrianakis at least twice. (CBS 56.1 Stmt. ¶ 28; Kentrianakis Aff. ¶ 20; Dodson Dep. at 229-30.) Dodson admits to "carry[ing] on occaion a small utility knife," as most engineers and camera people do (Dodson 56.1 Stmt. ¶ 28), but according to Dodson, he showed the knife to Kentrianakis because Kentrianakis asked to see it, then admired it, and asked where he could buy one. (Dodson 56.1 Stmt. ¶ 28.) CBS also maintains that Dodson read gun magazines at work and spoke to Kentrianakis and others about guns and Dodson's plans to obtain a license to buy and sell guns. (CBS 56.1 Stmt. ¶ 29; Kentrianakis Aff. ¶ 21; Dodson Dep. at 273-76.) Dodson admits to bringing a National Rifle Association magazine to work, which he recalls was titled "American Hunter," but denies that he repeatedly spoke about guns or planned to buy and sell guns. (Dodson 56.1 Stmt. ¶ 29.)

Kentrianakis told DiGiovanni that Dodson had returned to work "with alcohol on his breath" several times and that "other employees" told Kentrianakis that they had seen Dodson drinking at a nearby bar during breaks. (Kentrianakis Aff. ¶ 22; CBS 56.1 Stmt. ¶ 31; DiGiovanni Aff. ¶ 23.) Dodson admits that "on occasion, after crashing on a package, [he] used to have a beer to calm the adrenaline, after a hard do or die effort, but that was only after a meal." (Dodson 56.1 Stmt. ¶ 31.)

Work Conditions

Access to a "post-production room," which houses equipment used to add special effects to news stories, is limited to staff employees. (CBS 56.1 Stmt. ¶ 68.) According to DiGiovanni, per diem editors did not need to use the room to complete their regular duties and were not granted access. (DiGiovanni Aff. ¶ 33; CBS 56.1 Stmt. ¶ 68.) Upon Dodson's request, however, DiGiovanni allowed Dodson to use the post-production room and the keys to the room. (CBS Dodson 56.1 Stmts. ¶ 69; DiGiovanni Aff. ¶ 33.) According to Dodson, however, DiGiovanni's permission was not in fact required to use the room because "everybody knew where the keys [to the room] were, in Mr. DiGiovanni's Desk." (Dodson 56.1 Stmt. ¶ 70.) DiGiovanni learned that for several consecutive weeks the equipment was left "improperly configured" and "in non-working condition," causing significant delays on Monday mornings. (CBS 56.1 Stmt. ¶ 71; DiGiovanni Aff. ¶ 34; Dkt. No. 35: Cannon Aff. ¶¶ 5-8.) In response, DiGiovanni again limited access to the post-production room to staff employees. (CBS 56.1 Stmt. ¶ 72; DiGiovanni Aff. ¶¶ 34-35; Cannon Aff. ¶ 8; Dodson Dep. at 129, 133.) Dodson denies the implication that he left the room in non-working condition, adding that he personally had to remove styrofoam cups and cigar and cigarette butts from the room. (Dodson 56.1 Stmt. ¶ 69.) Dodson concedes, however, that no per diem editors, male or female, were allowed to use the room. (Dodson Dep. at 133; Dodson Aff. ¶ 4.)

Dodson claims that he "was often assigned to work in a small badly equipped room" that some referred to as the "broom closet" due to its size. (Dodson 56.1 Stmt. ¶¶ 17, 62.) CBS admits that Dodson occasionally was assigned to work in an editing room that was smaller than the other rooms. (CBS 56.1 Stmt. ¶ 73; Dodson Dep. at 126-27.) Dodson took offense to the room assignment because "[t]his would be a room, that you would put a 'new' editor in, not an experienced editor like myself, it was also embarrassing." (Dodson 56.1 Stmt. ¶¶ 62, 73.) Dodson "never saw any female editor working in, or assigned to that room, during [his] entire employ at CBS." (Dodson 56.1 Stmt. ¶ 62.) CBS states that female per diem editors, including Burnette and Somers, were assigned to this editing room. (CBS 56.1 Stmt. ¶ 74; DiGiovanni Aff. ¶¶ 31-32.) Dodson contends that neither he nor anyone he spoke to "ever saw any female editors work in that small, little room. Nor did [Dodson] ever see anyone else work in that room including male editors, except for [him]self." (Dodson 56.1 Stmt. ¶ 74.)

Staff Editor Hiring

According to DiGiovanni and Kentrianakis, Dodson was not qualified for a 4.03(g) or "staff" position at CBS because Dodson's "technical skills were average, his behavior was occasionally disruptive and inappropriate and [DiGiovanni and Kentrianakis] felt that Dodson was conceited, arrogant and otherwise had poor interpersonal skills." (CBS 56.1 Stmt. ¶ 54; DiGiovanni Aff. ¶ 36; Kentrianakis Aff. ¶ 28.) When a 4.03(g) position opened in October 1998, DiGiovanni and then-Technical Operations Manager Mark Weiner selected Holly Fontana.⁸ (CBS 56.1 Stmt. ¶ 55; DiGiovanni Aff. ¶ 37 Ex. L: 10/05/98 CBS Personnel Action Notice.) Fontana was a per diem editor with approximately six years of experience, considered by DiGiovanni to be "one of the best video-tape editors" at WCBS. (CBS 56.1 Stmt. ¶ 56; DiGiovanni Aff. ¶ 38.)

8 Dodson specifically states that the October 1998 position filled by Fontana "is not part of [his] claim, due to time frame," but argues that "her hiring does set a pattern." (Dodson 56.1 Stmt. ¶ 55.)

In early 2000, two more 4.03(g) positions became available. (CBS 56.1 Stmt. ¶ 58; DiGiovanni Aff. ¶ 39 Ex. J: 2/6/2000 CBS Personnel Action Notice; Ex. K: 2/20/2000 CBS Personnel Action Notice.) Then-Technical Operations Manager Al Petrasko told DiGiovanni, Kentrianakis and supervisor Janice Putney that the decision was theirs because Petrasko "believed [the three] knew the abilities of the per diem video-tape editors, and their suitability for the positions, better than [Petrasko] did." (DiGiovanni Aff. ¶ 39; Kentrianakis Aff. ¶ 29, CBS 56.1 Stmt. ¶ 59.) DiGiovanni, Kentrianakis and Putney considered several per diem editors for the two positions, including Dodson, Peter Berman, Lori Burnette, Christopher Calarco, Lesley Meadows, Michael Mulrenan, Lesley Peggot, Kelly Pereira, Robert Rossicone, Thomas Sciangula, Jessica Somers and Gus Strategias. (CBS 56.1 Stmt. ¶ 59; DiGiovanni Aff. ¶ 40; Kentrianakis Aff. ¶¶ 29-30.) These editors (except Rossicone and Sciangula) are younger than Dodson, who was born in 1954.⁹ (CBS 56.1 Stmt. ¶¶ 7, 60; DiGiovanni Aff. ¶ 12; Dodson Dep. at 26, 195.)

9 The birthdates of the other editors, from youngest to oldest are: Peggot (10/22/75), Mulrenan (3/18/75), Pereira (10/23/74), Somers (4/6/73), Strategias (2/28/70), Berman (10/29/69), Calarco (9/24/68), Burnette (8/22/68), Meadows (11/19/64), Rossicone (10/29/53), Sciangula (4/1/53). (CBS 56.1 Stmt. ¶ 60; DiGiovanni Aff. ¶ 12.)

The supervisors selected Burnette and Somers as the best candidates for the positions. (CBS 56.1 Stmt. ¶ 61; Kentrianakis Aff. ¶¶ 29-34; DiGiovanni Aff. ¶¶ 41-44.) Burnette had "industry experience dating back to 1990, including work at WNBC-TV, had good interpersonal skills, was an extremely fast editor, and was skilled in both non-linear editing and beta cart operation." (DiGiovanni Aff. ¶ 41; Kentrianakis ¶ 31.) Kentrianakis suggested Somers, "who had previously been a per diem editor at CBS in 1998 and 1999 before taking a full-time position with ABC" and was "a qualified editor with good interpersonal skills and excellent beta cart skills" as well as microwave experience. (DiGiovanni Aff. ¶ 42; Kentrianakis Aff. ¶ 32.) According to DiGiovanni and Kentrianakis, Fontana, Burnette, and Somers "were all better qualified for the 4.03(g) positions than" Dodson. (DiGiovanni Aff. ¶ 43; Kentrianakis Aff. ¶ 34.) DiGiovanni's opinion of their qualifications was "not based on their gender or age, but on [his] observations and evaluation of their abilities and interpersonal skills, and [his] fourteen years of experience as a Supervisor with CBS." (DiGiovanni Aff. ¶ 44.)

Dodson states that he was never interviewed for either position and has personal knowledge that none of the other male per diem editors were either. (Dodson 56.1 Stmt. ¶¶ 54, 59.) Dodson argues that each of the male per diem editors all had more experience than Burnette and Somers and alleges that CBS' proffered justifications for rejecting the male editors are disingenuous. (Dodson 56.1 Stmt. ¶ 58; Dodson Aff. ¶ 6.) Because neither DiGiovanni nor Kentrianakis interviewed him for the 4.03(g) positions that opened up, Dodson claims that they did not know of his "[e]xtensive" background and experience. (Dodson 56.1 Stmt. ¶ 88.)

CBS notes that in the fall of 1998, Dodson rejected DiGiovanni's offer of a 40-hour per week early morning shift. (CBS 56.1 Stmt. ¶ 39; DiGiovanni Aff. ¶ 47; Dodson Dep. at 211.) Michael Mulrenan later accepted that shift and was scheduled for more hours than most, if not all, other per diem editors. (CBS 56.1 Stmt. ¶ 40; DiGiovanni Aff. ¶¶ 46, 49-62; Hoffman Aff. Exs. A-C.) Dodson disputes the significance of the position DiGiovanni offered him. (Dodson 56.1 Stmt. ¶ 39.) Specifically, Dodson explains that the offer he rejected was for "a temporary freelance slot" working 12 am to 8 am, on "the least visible of all CBS's News programs." (Dodson 56.1 Stmt. ¶ 39.) Dodson rejected the shift because it was not a staff or 4.03(g) position and because he knew "it would afford [Dodson] much less visibility than working on the six and eleven o'clock [news] shows." (Dodson 56.1 Stmt. ¶ 39.) Dodson claims that, in contrast, Fontana, Burnette and Somers were given staff positions on the most high profile shows, the six and eleven o'clock news programs. (Dodson 56.1 Stmt. ¶ 39.) Dodson's claim that the position he refused was in fact a per diem position and not a staff position is supported by the fact that Mulrenan's hours are included in Hoffman's Affidavit exhibits for 1998, 1999 and 2000. (See Hoffman Aff. Exs. A-C.) Dodson's Rebuttal Evidence As to His Qualifications

In rebuttal to CBS' assertions about his work performance and poor interpersonal skills, Dodson submits affidavits from several CBS employees, including Dana Adams, Bill Diederich, Howard Dorsey, Rosalind Miller and Andrew Wiggins. (Dodson 56.1 Stmt. ¶ 22.) Dana Adams, a female who served as a reporter and weekend anchor for CBS in 1999 and 2000, stated that Dodson "was one of the most agreeable Videotape Editors working at CBS," he was "very easy to work with and very professional," and that she "never heard anyone at CBS ever complain about either Mr. Dodson or his work." (Adams Aff. ¶¶ 2, 4, 6.) Adams also believed Dodson's work "was more than equal quality to" Lori Burnette's. (Adams Aff. ¶ 5.) Adams considered Dodson "a much better Editor than Ms. Somers," whom, she noted, had far less experience than Dodson. (Adams Aff. ¶ 5.) Bill Diederich, who was employed at CBS for over ten years and served as an Executive Producer and Managing Editor, also found Dodson very easy to get along with and never received any complaints about Dodson or his work. (Diederich Aff. ¶¶ 2, 6.) Diederich believed that Burnette's work was "definitely not superior" to Dodson's. (Diederich Aff. ¶ 5.) Howard Dorsey, who served as executive producer of the eleven o'clock news, stated that Dodson "was an excellent videotape editor" and "had an excellent attitude," and that Dorsey "never heard anyone at CBS complain about either Mr. Dodson or his work." (Dorsey Aff. ¶¶ 2, 4, 6.) Dorsey stated that he "sought [Somers] out to work on [his] show less often than [he] sought out Mr. Dodson, in whose work [Dorsey] had more familiarity and confidence." (Dorsey Aff. ¶ 5.) Rosalind Miller, a CBS freelance reporter, found Dodson "to be easy to work with" and "certainly considered him to be professional and creative." (Miller Aff. ¶ 2.) Andre Wiggins, who served as producer of the CBS six o'clock news, stated that Dodson "was a Very Good Videotape Editor" and that if "given the choice, [Wiggins] would choose to work with Mr. Dodson, rather than some of the other Editors, including Lori Burnette and Jessica Somers." (Wiggins Aff. ¶ 2, 4.) Wiggins "observed that Mr. DiGiovanni, Mr. Dodson's supervisor, seemed to prefer working with Female Editors." (Wiggins Aff. ¶ 5.) "On at least one occasion in 1999, [Wiggins] commented to [DiGiovanni] that he had a lot of Female Editors working for him [and] [DiGiovanni] responded that he liked it that way." (Wiggins Aff. ¶ 5.)

Charles Fagan, Director of Operations and Engineering for Viacom Television Station Group, which owns WCBS-TV, stated that Miller, Adams, Diederich, Dorsey, and Wiggins "did not, between 1998 and 2000 or at any other time, have any managerial responsibility for video-tape editors employed by WCBS-TV, including Gary Dodson" and did not "play any role in the scheduling, supervision, hiring, evaluation, or promotion process for video-tape editors." (Dkt. No. 48: Fagan Reply Aff. ¶¶ 1-2.)

Dodson's Allegations of Retaliation Dodson's October 1999 Complaint

In approximately October 1999, Dodson complained to Harry Cannon, a staff editor and IBEW union shop steward, that DiGiovanni favored women in hiring and scheduling hours. (CBS Dodson 56.1 Stmts. ¶ 75; Compl. ¶ 20; Dkt. No. 35: Cannon Aff. ¶¶ 2, 10; Dodson Dep. at 184-85.) Cannon testified that he did not report this comment to DiGiovanni or any other CBS employee. (CBS 56.1 Stmt. ¶ 76; Cannon Aff. ¶¶ 11-12.) Dodson alleges that Cannon said he talked to DiGiovanni. (Dodson Dep. at 185.)

Nevertheless, Dodson's hours in the five months between Dodson's complaint to Cannon in October 1999 and his departure for vacation in March 2000 were comparable to the hours Dodson worked between October 1998 and March 1999. (CBS Dodson 56.1 Stmts. ¶ 77; Hoffman Aff. Exs. B, C: 1999 2000 Per Diem Editor Payroll Records.) Hoffman's records show that Dodson worked 81 hours between his return from vacation in May 2000 and his firing in June 2000, and that during the comparable time period from May 1999 to June 1999, Dodson worked 82 hours. (CBS 56.1 Stmt. ¶ 78; DiGiovanni Aff. ¶ 79; Hoffman Exs. B, C.) However, Dodson asserts that after his vacation he worked six scheduled days and one unscheduled day "for a total of 57 hours" and that during the comparable period in 1999 he worked 98 hours. (Dodson 56.1 Stmt. ¶ 78.)

Events Prior to Dodson's Termination

During Dodson's six-week vacation from the end of March to early May 2000, female employees, including Meadows, "became more vocal" to DiGiovanni about Dodson's alleged inappropriate "sex-based behavior." (CBS 56.1 Stmt. ¶ 49; DiGiovanni Aff. ¶ 75.) As a result of Dodson's six-week absence and the increased complaints from female employees about Dodson during this time, DiGiovanni "was not inclined to schedule Dodson for many hours." (CBS 56.1 Stmt. ¶¶ 50-51; DiGiovanni Aff. ¶¶ 76-77.) DiGiovanni "concluded that continuing to use Mr. Dodson as a per diem was having a negative effect on other employees at the Station." (DiGiovanni Aff. ¶ 76.) Nevertheless, DiGiovanni scheduled Dodson for a total of eighty-one hours over the four weeks between Dodson's return from vacation and his termination on June 5, 2000. (CBS 56.1 Stmt. ¶ 52; DiGiovanni Aff. ¶ 79; Hoffman Aff. Ex. C.) During the same four-week period in 1999, DiGiovanni scheduled Dodson for 82 hours. (CBS 56.1 Stmt. ¶ 53; DiGiovanni Aff. ¶ 75; Hoffman Aff. Ex. B.) Upon Dodson's own calculation based on Hoffmann's Affidavit Exhibits B and C, he concedes that he in fact worked eight more hours in 2000 than in 1999. (Dodson 56.1 Stmt. ¶ 53.)

Dodson's May 2000 Complaint

Around May 8, 2000, Dodson called Kentrianakis to ask why he was not scheduled to work during that week. (CBS 56.1 Stmt. ¶ 79; Dodson Dep. at 200-01; see Dodson Aff. ¶ 16.) Dodson alleges that he complained to Kentrianakis that DiGiovanni scheduled women more favorably than Dodson, and specifically asked "[w]hat kind of BS is going on here because I told Tony [DiGiovanni] to schedule me before I left on vacation and I come back and I figure out I'm not scheduled." (Dodson Dep. at 201; CBS Dodson 56.1 Stmts. ¶ 79.) Dodson "told Mr. Kentrianakis that [Dodson] was going to go talk to [Technical Operations Manager] Al Petrasko because [Dodson] was tired of Tony's [DiGiovanni's] BS and with the scheduling of female employees and nothing had happened with Harry Cannon when I complained, so [Dodson] was going to talk to Al Petrasko." (Dodson Dep. at 201; Dodson 56.1 Stmt. ¶ 80.) Kentrianakis does "not recall Mr. Dodson saying anything about discrimination in that phone conversation" and states that he "did not say anything about discrimination to Mr. DiGiovanni." (CBS 56.1 Stmt. ¶ 80; Kentrianakis Aff. ¶ 40.) Instead, Kentrianakis maintains that he simply reported to DiGiovanni that Dodson complained about not being scheduled for the week of May 8, 2000. (CBS 56.1 Stmt. ¶ 81; Kentrianakis ¶ 41.) Dodson admits that he does not know whether Kentrianakis told DiGiovanni about Dodson's gender complaint but is "sure [Kentrianakis] told Mr. DiGiovanni that [Dodson] was thinking of complaining to Mr. DiGiovanni's boss, Mr. Petrasko." (Dodson 56.1 Stmt. ¶¶ 80-81.)

DiGiovanni told Kentrianakis he "had forgotten to put Mr. Dodson on the schedule" for that week because since Dodson had gone on vacation, DiGiovanni had "developed a routine of scheduling other per diem video-tape editors for those hours, and had done so for the coming week." (DiGiovanni Aff. ¶ 77; Kentrianakis Aff. ¶ 41; Dodson Aff. ¶ 21.) DiGiovanni further explained that he "was reluctant to schedule Mr. Dodson for extensive work hours because of the number of recent complaints and his generally poor behavior," but would schedule Dodson nonetheless "to avoid friction." (DiGiovanni Aff. ¶ 78.) DiGiovanni left Dodson a telephone message "apologizing for forgetting to schedule him for the upcoming week, and telling [Dodson] he would be on the schedule for the following week." (DiGiovanni Aff. ¶ 78; CBS 56.1 Stmt. ¶ 82; Dodson Dep. at 202;see Dodson Aff. ¶ 16.)

Dodson concedes that he does not know whether his omission from the May 8, 2000 schedule was related to his gender. (Dodson Dep. at 173-74.) When asked at his deposition whether he had "any basis to assert that . . . [he was] not on the work schedule when [he] returned [from vacation] on May 6 because [he was] a man," Dodson replied, "I don't know. I could always go to the remark that was made by DiGiovanni that he likes surrounding himself with women, so I don't know. I couldn't answer that." (Dodson Dep. at 174.) Dodson also admits the possibility that the schedule related to his extended vacation:

Don't ever go on vacation for six weeks. . . . Because if I had to do it over again I would have only took a week and went back to work. Because before I left on vacation I trained Gus to take over microwave. I had trained Kelly to help out in beta car[t]. So virtually I trained people to take over my job. And the reason I did that is because things would run smoothly and, again, at that time I thought the world of Mike [Kentrianakis] and Scott [Kremer]. . . . And the thanks I got was that I got fired.

(Dodson Dep. at 172-73.)

Dodson's June 2000 Complaint

DiGiovanni did not include Dodson on the June 4 through June 10, 2000 schedule, which was posted on June 2, 2000. (CBS 56.1 Stmt. ¶¶ 83, 85; Dodson Dep. at 169, 232; Dodson Aff. ¶ 16; DiGiovanni Aff. ¶ 80.) DiGiovanni contends that he decided that he "would not schedule [Dodson] again" "because there was not a great need for per diems at that time of year, and because [DiGiovanni] had decided that due to [Dodson's] disruptive behavior and the complaints about him from other employees, [DiGiovanni] would not schedule him again." (DiGiovanni Aff. ¶ 80; CBS 56.1 Stmt. ¶ 84.) Dodson contends that Hoffman's affidavit contradicts DiGiovanni's claim that the station did not have a "great need for per diems at that time of the year." (Dodson 56.1 Stmt. ¶ 83.) Dodson also notes that DiGiovanni fails to detail Dodson's "disruptive behavior." (Dodson 56.1 Stmt. ¶ 84.)

When Dodson realized that DiGiovanni omitted him from the June 2, 2000 schedule, Dodson spoke with Kremer and Kentrianakis.¹⁰ (Dodson 56.1 Stmt. 83.) According to Dodson, Kremer thought Dodson "had asked for the time off" and Kentrianakis "had no idea." (Dodson 56.1 Stmt. ¶¶ 83-84.) Dodson questions why DiGiovanni did not inform him nor Kremer or Kentrianakis after deciding to stop scheduling Dodson. (Dodson 56.1 Stmt. ¶ 84.)

10 Given Dodson's complaint to Kentrianakis about his omission from the schedule upon returning from vacation, it is unclear why Dodson now states that he "had Never been omitted from the schedule before June 4th, 2000." (Dodson 56.1 Stmt. ¶ 83.)

On June 4, 2000, in response to his omission from the schedule, Dodson called Kentrianakis and "told him again that [Dodson] was tired of Tony's [DiGiovanni's] crap and [Dodson] was going to complain to management about it." (Dodson Dep. at 169; CBS Dodson 56.1 Stmts. ¶ 86; Dodson Aff. ¶ 22.) Dodson states that he "did not call to complain," but rather he called "to see if [Kentrianakis] knew why [Dodson] had not been scheduled, as Mr. DiGiovanni had 'forgot' to schedule [Dodson] after [Dodson] returned from vacation." (Dodson 56.1 Stmt. ¶ 86.) Dodson called Kentrianakis "to ask where Mr. Fagan's office was." (Dodson 56.1 Stmt. ¶ 86.) Dodson informed Kentrianakis that he planned to meet with Director of Broadcast Operations and Engineering Charles Fagan "regarding Mr. DiGiovanni's favoring women, scheduling, and behavior" (Dodson 56.1 Stmt. ¶¶ 86-88), and told Kentrianakis that he planned to "pitch" himself to Fagan for the vacant Technical Operations Manager position. (Dodson 56.1 Stmt. ¶ 86; CBS 56.1 Stmt. ¶ 88; Dodson Dep. at 164-68; Kentrianakis Aff. ¶¶ 43-44; Dodson Aff. ¶ 22.) According to Dodson, Kentrianakis did not mention any complaints that were made about Dodson and did not know why DiGiovanni had not scheduled him. (Dodson 56.1 Stmt. ¶ 86.)

Kentrianakis alleges that after Dodson said "he wanted to get his information straight so he could get rid of Mr. DiGiovanni, [Dodson] then told [Kentrianakis] he planned to load up his shotgun and come down to work the next day." (Kentrianakis Aff. ¶ 45; Dodson Aff. ¶ 22; CBS 56.1 Stmt. ¶ 89: Dodson "told Kentrianakis that he wanted to get his information straight before he 'loaded up the shotgun' and went to the WCBS-TV premises.") Dodson's best recollection of his statement was that in a "friendly and completely nonthreatening context," Dodson "remarked something along the lines of I wanted to get my information straight before I load up the shotgun and talk to Charlie Fagan." (Dodson Dep. at 175; see also Dodson Aff. ¶ 22.)

Dodson contends that he "made no threat of violence" and that his statement was "pure metaphor" when considered "in context." (Dodson Dep. at 168; Dodson Aff. ¶ 22.) Dodson said that "[t]he metaphor [he] used was 'I wanted to get my information straight before I load up the shotgun and talk to Charlie Fagan.'" (Dodson 56.1 Stmt. ¶ 89.) According to Dodson, Kentrianakis "made up this threat of violence in an effort to get [Dodson] removed and remove [Dodson] as [Kentrianakis'] only competition for the technical operations manager's position" because as Technical Operations Manager, Dodson would have been superior to both DiGiovanni and Kentrianakis. (Dodson Dep. at 165; see Kentrianakis Aff. ¶¶ 43-44.) Dodson claims that "CBS has taken an innocent statement and used it in a manner which is intended to distract the Court" from Dodson's removal from CBS' schedule following his discrimination complaint. (Dodson 56.1 Stmt. ¶ 89.)

Dodson argues that if it is CBS' position that Dodson made the "shotgun" comment in response to being permanently removed from the schedule by DiGiovanni, then the shotgun comment cannot be given as the reason for his termination. (Dodson 56.1 Stmt. ¶ 89.) Dodson also notes that CBS' description of his shotgun statement has changed over time. The June 5, 2000 CBS Security Department Aberrant Behavior Report reads "Subject, after a dispute with supervisor, threatened to put a shotgun in his vehicle when he comes to work. He is per diem. He was terminated." (Dodson 56.1 Stmt. ¶ 89 Ex. HHH: 6/5/00 CBS Aberrant Behavior Rpt., emphasis added.) As part of CBS' April 2002 Statement to the EEOC, Kentrianakis testified that Dodson "wanted 'to know what's going on before I load up my rifle and put it in the trunk and come on down there.'" (Dodson 56.1 Stmt. ¶ 89 Ex. III: 4/2/02 CBS Letter to EEOC, emphasis added.) Dodson notes that he has never owned a gun or a truck and has not had any vehicle since 1977. (Dodson 56.1 Stmt. ¶¶ 89-102; Dodson Aff. ¶ 28.)

Dodson's Meeting with Charles Fagan

On June 5, 2000, Dodson met with Charles Fagan. (CBS Dodson 56.1 Stmts. ¶ 90; Dodson Dep. at 218; Dkt. No. 32: Fagan Aff. ¶ 3; Dodson Aff. ¶ 24.) Before discussing his problems with DiGiovanni, Dodson "pitched" himself for the Technical Operation Manger Position, mentioning his experience and ideas. (Dodson Dep. at 219; CBS Dodson 56.1 Stmts. ¶ 91; Dodson Aff. ¶¶ 17, 24; Fagan Aff. ¶ 6.) Dodson then told Fagan that

by hiring inexperienced [people] — and especially for the past two staff positions that were recently filled, that CBS was not getting the most for their money. That there were a lot more qualified editors out there both male and female that they could have picked from.

(Dodson Dep. at 221; see also Dodson Aff. ¶ 17.) Dodson told Fagan that he complained to Harry Cannon about DiGiovanni but "nothing ever really changed . . . because Mr. Cannon was very good friends with Mr. DiGiovanni." (Dodson Dep. at 221-22.) Dodson also told Fagan that he "felt that Mr. DiGiovanni was scheduling the females to have more time and it was an unfair advantage to the male freelancers . . . [t]hat the male freelancers, some of them were equal or better than some of the women that they had working there. And [Dodson] said that they should be getting at least equal time." (Dodson Dep. at 222;see Dodson Aff. ¶¶ 17, 24; Fagan Aff. ¶ 10.) Dodson "also addressed the problem that Mr. DiGiovanni seemed to favor women, seemed to always be chatting them up" and that "it was an improper management style that Mr. DiGiovanni was exhibiting at CBS." (Dodson Dep. at 222.) Fagan said he would investigate Dodson's complaints and that Dodson should call him that Friday for an answer. (Dodson Dep. at 225; Dodson 56.1 Stmt. ¶ 91; Dodson Aff. ¶¶ 17, 24.) Dodson believes he suffered retaliation for making these complaints because after meeting with Fagan, Dodson never worked again at CBS. (Dodson Dep. at 226-28.)

According to Fagan, in the course of the conversation, Dodson "also made comments about women that [Fagan] found offensive," such as "that women didn't belong around his area of work and that they were good for nothing." (Fagan Aff. ¶ 11.) According to Fagan, Dodson said "that all [the female employees] did was file their nails and wait for their nail polish to dry" and "mentioned that the women were permitted to read women's magazines rather than doing work." (Fagan Aff. ¶ 11.) Dodson denies making any of these statements, maintaining that he spoke to Fagan specifically about scheduling. (Dodson Dep. at 222-23.)

Shortly after the meeting, Fagan asked DiGiovanni "if there was any basis for Mr. Dodson's assertion that Mr. DiGiovanni was scheduling female per diem video-tape editors for more hours than appropriate, or otherwise treating women more favorably than men." (Fagan Aff. ¶ 15; CBS 56.1 Stmt. ¶ 94.) DiGiovanni "appeared shocked" to hear about Dodson's allegations and assured Fagan they were baseless. (Fagan Aff. ¶ 16; CBS 56.1 Stmt. ¶ 95.)

Kentrianakis joined Fagan's and DiGiovanni's conversation and concurred that Dodson's allegations were baseless, explained that Dodson "was simply a strange person, and added that several female employees complained that Mr. Dodson made them feel uncomfortable and that he acted inappropriately." (Fagan Aff. ¶¶ 17-18; Kentrianakis Aff. ¶¶ 47-48; CBS 56.1 Stmt. ¶¶ 96-97.) DiGiovanni added that Burnette and Somers had complained about "inappropriate sexual comments" Dodson made and that several reporters did not want to work with Dodson due to his "arrogant and conceited attitude." (Fagan Aff. ¶¶ 19-20; DiGiovanni Aff. ¶ 83; CBS 56.1 Stmt. ¶¶ 97-98.) Fagan felt that DiGiovanni's and Kentrianakis' reports of Dodson's strange behavior were consistent with Dodson's behavior during Fagan's meeting with him earlier that day. (Fagan ¶ 21.) After DiGiovanni told Fagan that Dodson was a per diem editor, and therefore an at-will employee under the collective bargaining agreement, Fagan "suggested to Mr. DiGiovanni and Mr. Kentrianakis that if Mr. Dodson was in fact causing problems in the work environment, due to his poor attitude, inappropriate comments to women and other behavior, they should simply stop using him as a per diem editor." (Fagan Aff. ¶ 24; DiGiovanni Aff. ¶ 85; Kentrianakis Aff. ¶ 50.) According to Fagan and Kentrianakis, DiGiovanni agreed with Fagan's suggestion. (Fagan Aff. ¶ 24; Kentrianakis Aff. ¶ 50.) However, DiGiovanni contends that he "had come to the same conclusion" as Fagan and that the decision to terminate Dodson was his own, not Fagan's. (DiGiovanni Aff. ¶ 86.)

After Fagan left, Kentrianakis remembered Dodson's "'shotgun' comment" from his phone call the previous evening. (Kentrianakis Aff. ¶ 51; DiGiovanni Aff. ¶ 87; CBS 56.1 Stmt. ¶ 101.) Kentrianakis told DiGiovanni about Dodson's call to complain about his hours and Dodson's statement that "he was going to 'load up a shotgun' and come down to the office, or words to that effect." (Kentrianakis Aff. ¶ 52; DiGiovanni Aff. ¶ 87; CBS 56.1 Stmt. ¶ 101.) DiGiovanni immediately reported the comment to CBS security, which "recorded the threat, deactivated Dodson's access card, and barred Dodson from the building." (DiGiovanni Aff. ¶¶ 88-89 Ex. F: 6/5/00 Aberrant Behavior Report; CBS 56.1 Stmt. ¶ 102.) DiGiovanni also wrote a memorandum to CBS security, stating that "Gary Dodson has been terminated from WCBS-TV. He is [no] longer allowed to enter any of the CBS buildings." (DiGiovanni Aff. ¶¶ 89, 97 Ex. G.)

In contrast to DiGiovanni's account, CBS' Position Statement in response to Dodson's EEOC charge reads in relevant part:

The decision to remove Mr. Dodson from the schedule was made after Mr. Dodson had met with Charlie Fagan, the Director of Broadcast Operations and Engineering, to express interest in Mr. Petrasko's vacant position. During the course of this conversation, Mr. Dodson expressed his opinion that he had been discriminated against by Mr. DiGiovanni on account of his gender, and berated the women technicians with whom he worked as employees who spent their time reading magazines, filing their nails, talking to friends, and generally not doing their jobs. Mr. Fagan told Mr. DiGiovanni about Mr. Dodson's complaints, and Mr. DiGIovanni told Mr. Fagan that what Mr. Dodson said about the women was not true, and the reality was that many women were afraid of Mr. Dodson because of his behavior towards them. Mr. Fagan and Mr. DiGiovanni agreed that Mr. Dodson's conduct towards women was disruptive and contrary to CBS policy, and decided he should be removed from the schedule. Thus, the decision to remove Mr. Dodson from the schedule was not based on his complaints of discrimination based on gender, but rather on his disruptive behavior that was contrary to Company policy.

(Dodson 56.1 Stmt. Ex. MM: CBS EEOC Position Stmt. at 5; Dodson 56.1 Stmt. ¶ 94.) The extent of CBS' investigation of Dodson's complaint about DiGiovanni appears to have been Fagan questioning DiGiovanni and Kentrianakis about whether Dodson's allegations were true. (See Dodson 56.1 Stmt. ¶ 94.) Dodson states that he asked Fagan specifically to speak to two male per diem editors who could corroborate his allegations, Robert Rossicone and Christopher Calarko. (Dodson 56.1 Stmt. ¶¶ 94, 96-97.)

Dodson's EEOC Complaint and Present Federal Lawsuit

Dodson claims that three open staff positions, one in 1998 and two in early 2000, "went to young women who were either less qualified than plaintiff, or at best, equally qualified." (Dkt. No. 1: Compl. ¶ 14.) Dodson argues that "these female staff members were also less qualified than other male freelancers, including Bob Rossicone and Chris Callarco . . . [who] had told defendant DiGiovanni that they were interested in staff positions." (Compl. ¶ 14.) Dodson alleges generally that "[a]lthough these young female news editors were less qualified and experienced than [Dodson] and other older male news editors, and had no engineering experience, they were consistently given preferential treatment in terms of number of hours worked." (Compl. ¶ 16.) Last, Dodson asserts that he was fired in retaliation for his complaint of gender discrimination to Fagan. (Compl. ¶¶ 21, 31.) The EEOC issued a Right to Sue letter on September 3, 2002,¹¹ and Dodson filed this lawsuit on November 20, 2002. (Compl. at 1 Attached EEOC Letter.)

11 The EEOC found that Dodson had been retaliated against. (Dodson Ex. LL: EEOC 5/14/02 Determination Letter.)

Presently before the Court is CBS' summary judgment motion on Dodson's claims of gender and age discrimination in refusing to hire Dodson as a staff employee and retaliation for complaints of gender discrimination. (See generally Dkt. No. 32: CBS 56.1 Stmt; Dkt. No. 31: CBS SJ Br.; Dkt. No. 49: CBS Reply Br.)

ANALYSIS

I. LEGAL PRINCIPLES GOVERNING TITLE VII CASES A. Summary Judgment Standards in Employment Discrimination Cases ¹²

12 For additional cases authored by this Judge discussing the summary judgment standards in employment discrimination cases in language substantially similar to that in this entire section of this Opinion, see, e.g., Slaitane v. Sbarro, 03 Civ. 5503, 03 Civ. 5504, 2004 WL 1202315 at *7-9 (S.D.N.Y. June 2, 2004) (Peck, M.J.); Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *13-14 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *8-10 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.);Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *12-13 (S.D.N.Y. July 29, 2002) (Peck, M.J.), report rec. adopted, 235 F. Supp.2d 291 (S.D.N.Y. 2002) (Berman, D.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *6-7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.);Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *8-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.);Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *6 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *12 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *7 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied, 537 U.S. 848, 123 S.Ct. 189 (2002); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.);Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 So. Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S.Ct. 53 (2003);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant.See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . 'to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹³ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v.DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

13 See also, e.g., Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM, 43 F.3d at 36;Gallo v. Prudential, 22 F.3d at 1223.

"The Court recognizes that it must 'extend extra consideration' to pro se plaintiffs" such as Dodson, and that "pro se parties are 'to be given "special latitude on summary judgment motions."'" Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.).¹⁴ "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v.Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).¹⁵

14 Accord, e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *9; Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *6 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.);Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Watson v.McGinnis, 981 F. Supp. 815, 818 (Kaplan, D.J. Peck, M.J.);see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'").

15 See also, e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *9; Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *5;Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v.Goord, 2000 WL 760751 at *5.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted."Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹⁶ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v.Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000);Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹⁷ Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at B. Legal Principles Governing Title VII Actions ¹⁸

16 Accord, e.g., Feingold v. New York, 366 F.3d at 149; Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardoza v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40.

17 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

18 For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially similar to that in this entire section of this Opinion, see, e.g., Slaitane v. Sbarro, 03 Civ. 5503, 03 Civ. 5504, 2004 WL 1202315 at *9-12 (S.D.N.Y. June 2, 2004) (Peck, M.J.); Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *14-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *10-13 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.);Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *20-22) (S.D.N.Y. July 29, 2002) (Peck, M.J.); report rec. adopted, 235 F. Supp.2d 291 (S.D.N.Y. 2002) (Berman, D.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *7-10 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.);Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *9-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.);Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *10 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v.New York City, 99 Civ. 10533, 2000 WL 1782744 at *11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied, 537 U.S. 848, 123 S.Ct. 189 (2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.);Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v.Litton, 91 Civ. 0918, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).¹⁹ Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).²⁰

19 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. 513, 517 n. 3 (2003); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996);St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); Mandell v. County of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003); Mario v. PC Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Schnabel v.Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998), abrogated on other grounds by, Swierkiewicz v. Soreona N.A., 534 U.S. 506, 122 S.Ct. 992 (2002); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

20 See also, e.g., Mandell v. County of Suffolk, 316 F.3d at 380; Mario v. PC Food Mkts., Inc., 313 F.3d at 767;Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106; McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.²¹ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S.Ct. at 2106.²²

21 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. at 517 n. 3; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94;Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004);Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003);Mandell v. County of Suffolk, 316 F.3d at 380; Mario v.PC Food Mkts., Inc., 313 F.3d at 767; Schnabel v.Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654;Chambers v. TRM, 43 F.3d at 38.

22 See also, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096;Terry v. Ashcroft, 336 F.2d at 144 n. 17; Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106.

If the defendant articulates a non-discriminatory reason, theMcDonnell Douglas burden-shifting framework drops out of the picture. E.g, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106.²³ "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106 (quotingTexas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).

23 See also, e.g., Raytheon Co. v. Hernandez, 124 So. Ct. at 517 n. 3; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas Dep't of Cmty. Affairs v.Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; Feingold v.New York, 366 F.3d at 152; Mandell v. County of Suffolk, 316 F.3d at 380-81; Mario v. PC Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).²⁴

24 See also, e.g., Feingold v. New York, 366 F.3d at 152; Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 460 (2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. 772 Park Avenue Corp., 00 Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001);Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied, 156 F. Supp.2d 270 (S.D.N.Y. May 18, 2001), aff'd in part, appeal dismissed on other grounds, No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Connell v.Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves. ²⁵ II. DEFENDANTS SHOULD BE DENIED SUMMARY JUDGMENT DISMISSING DODSON'S FAILURE TO PROMOTE CLAIM

25 E.g., Molin v. Shapiro, No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003);Silverman v. City of New York, No. 02-9048, 64 Fed. Appx. 799, 801, 2003 WL 1970472 at *1 (2d Cir. Apr. 23, 2003);Tarshis v. Riese Org., No. 02-7570, 66 Fed. Appx. 238, 240, 2003 WL 1600154 at *1-2 (2d Cir. Mar. 27, 2003); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Slatky v. Healthfirst, Inc., 02 Civ. 5182, 2003 WL 22705123 at *6 (S.D.N.Y. Nov. 17, 2003);Kulkarni v. City Univ. of New York, 01 Civ. 10628, 2002 WL 31886639 at *9 (S.D.N.Y. Dec. 27, 2002); Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at *12-19; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *12; Weiser v.Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 136 F. Supp.2d at 249-50; Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000);Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v.Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000), aff'd, No. 00-9531, 51 Fed. Appx. 901, 2002 WL 31664452 (2d Cir. Nov. 20, 2002); Cousins v.Howell Corp., 113 F. Supp.2d 262, 268-69 (D. Conn. 2000);Ekwegablu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v.Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v.Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

Dodson alleges that CBS discriminated against him on the basis of age and gender by promoting young, female editors Lori Burnette and Jessica Somers to 4.03(g) positions in early 2000 rather than him. (Dkt. No. 1: Compl. ¶¶ 10-16; Dkt. No. 44: Dodson 56.1 Stmt. ¶¶ 54-61; Dkt. No. 45: Dodson Br. at 5-7.) Dodson concedes that, "at best," Burnette and Somers were "equally qualified" as Dodson.²⁶ (Compl. ¶ 14.) According to DiGiovanni and Kentrianakis, Burnette and Somers (and Fontana) "were all better qualified for the 4.03(g) positions than" Dodson. (Dkt. No. 32: DiGiovanni Aff. ¶¶ 43-44; Dkt. No. 36: Kentrianakis Aff. ¶ 34.) DiGiovanni's opinion of their qualifications was "not based on their gender or age, but on [his] observations and evaluation of their abilities and interpersonal skills, and [his] fourteen years of experience as a Supervisor with CBS." (DiGiovanni Aff. ¶ 44.)

26 Dodson does not raise as a distinct claim Holly Fontana's promotion to 4.03(g) editor in 1998; he asserts that, "however, her hiring is part of the pattern of discrimination in favor of younger women, as practiced by Mr. DiGiovanni." (Dodson 56. 1 Stmt. ¶ 46.)

The Court assumes that Dodson has set forth a prima facie case at the first McDonnell Douglas step. The Court turns to the second McDonnell Douglas step, whether CBS has articulated a non-discriminatory reason for not promoting Dodson to the two staff positions that became available in 2000, and then to the third step of whether Dodson has shown that CBS' proffered reason was a pretext for sex and age discrimination.

In general, a court may not second-guess an employer's non-discriminatory business decisions, even if those decisions are unwise. See, e.g., Byrnie v. Town of Cromwell, 243 F.3d 93, 103, 106 (2d Cir. 2001) ("[A]n employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision. At the same time, 'the court must respect the employer's unfettered discretion to choose among qualified candidates.' . . . An employer is entitled to arrive at a subjective evaluation of a candidate's suitability for a position.") (citations omitted); Hollander v. American Cyanamid Co., 172 F.3d 192, 201 (2d Cir. 1999) ("[A]n employer may give a false explanation for terminating an employee in order to mask the true reason which, though petty, spiteful or otherwise ignoble, is not unlawful." "[A]ssuming arguendo that [plaintiff's] alleged interpersonal problems were used by [the employer] as a pretext for the company's true reason for his termination, the pretext in and of itself does not suggest age discrimination."), abrogated on other grounds by, Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.) ("This Court may not second-guess an employer's non-discriminatory business decisions, even if those decisions are unwise.") ( cases cited therein), aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied, 537 U.S. 848, 123 S.Ct. 189 (2002); Faldetta v.Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *9, 10 (S.D.N.Y. Nov. 9, 2000) ("[A]bsent evidence of discrimination, it is not the province of the Court to sit as a super-personnel department that reexamines an entity's business decisions . . . The ADEA does not compel court's to adjudge the wisdom of a corporation's business decisions.") (internal quotations omitted); Scaria v. Rubin, 94 Civ. 333, 1996 WL 389250 at *8 (S.D.N.Y. July 11, 1996) (Peck, M.J.) ("an employer has discretion even to make a bad business decision . . ., so long as that decision is not motivated by discrimination"), aff'd, 117 F.3d 652 (2d Cir. 1997).

CBS' articulated reasons for not offering Dodson a staff position are sufficient to meet its burden of production at the second McDonnell Douglas step. "The Second Circuit has stated that a 'profound inability to get along with her coworkers. . . . represents a legitimate, nondiscriminatory reason for an employment decision.'" Ramos v. Marriott Int'l, Inc., 134 F. Supp.2d 328, 342 (S.D.N.Y. 2001) ( cases cited therein) ("The failure of an employee to get along with coworkers rebuts the employee's prima facie case even if the employee's performance ratings were high in other respects. Courts cannot second-guess an employer's business judgment."); see, e.g., Meiri v.Dacon, 759 F.2d 989, 997 (2d Cir.) (Plaintiff's "usurpation of authority and her . . . profound inability to get along with her co-workers . . . represents a legitimate, nondiscriminatory reason for an employment decision."), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985); Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5 (S.D.N.Y. Nov. 14, 2000) (facts that plaintiff refused to cooperate and accept work from certain supervisors, expressed her unhappiness about working at defendant's company and acted inappropriately with her supervisor constituted legitimate nondiscriminatory reasons for terminating plaintiff); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 353 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Neratko v.Frank, 31 F. Supp.2d 270, 284 (W.D.N.Y. 1998) ("His contrariness and inability to get along with employers, supervisors, and co-workers fully qualified as legitimate, nondiscriminatory reasons for the adverse actions.").

Dodson's rebuttal evidence includes an affidavit from producer Andre Wiggins, who "[o]n at least one occasion in 1999 . . . commented to [DiGiovanni] that he had alot of Female Editors working for him [and DiGiovanni] responded that he liked it that way." (Dkt. No. 44: Wiggins Aff. ¶ 5.) The Court finds that a reasonable jury could view DiGiovanni's alleged comment as evidence of discriminatory animus. See, e.g., Back v.Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (Plaintiff "made out her prima facie case by offering evidence of discriminatory comments, which can constitute 'direct evidence,' and are adequate to make out a prima facie case, even where uncorroborated."); Holtz v. Rockefeller Co., 258 F.3d 62, 77-78 (2d Cir. 2001) (Plaintiff proffered direct evidence to defeat summary judgment where she testified that supervisor discussed "at some length" his plans to train an employee that he considered "a good employee to invest in because she was . . . a young woman" noted "how much he enjoyed training young women," and when plaintiff inquired about her own training, the supervisor said "it's young women I like to train." Even though the statements were uncorroborated, the Second Circuit "conclude[d] that [plaintiff's] statements raise a genuine issue of fact as to the defendant's intent."); Golia v. Leslie Fay Co., 01 Civ. 1111, 2003 WL 21878788 at *6 n. 7 (S.D.N.Y. Aug. 7, 2003) (Although "stray comments, without more, are not in themselves a sufficient basis for a factfinder to conclude that the plaintiff was fired for discriminatory reasons[, h]ere plaintiffs have proffered other evidence that suggests that [defendant's] asserted nondiscriminatory reasons are pretextual, and do not need to rely solely on these comments as circumstantial evidence of discriminatory intent."); Vernon v.Port Auth. of N.Y. NJ, 154 F. Supp.2d 844, 857 (S.D.N.Y. 2001) (Plaintiff established that "the denial of the promotion occurred under circumstances giving rise to an inference of discrimination" where, inter alia but "[m]ost importantly, [plaintiff's supervisor] claimed that 'he preferred to promote younger staff.'").

Dodson also offers affidavits of several co-workers who viewed his work favorably, had no problems working with him, and had no knowledge of complaints against him. (See pages 17-18 above.)

Dodson further claims that his complaints about "scheduling, assignments and access to editing facilities . . . are examples of evidentiary support for plaintiff's allegations that defendants were motivated by discriminatory animus in its decisions not to hire plaintiff [for a staff position, i.e., not to promote him] and ultimately, to terminate Mr. Dodson's work relationship with CBS." (Dkt. No. 45: Dodson SJ Br. at 11.) Specifically, Dodson alleges that DiGiovanni "consist[e]ntly scheduled less experienced female editors and favored those female editors with plum assignments and more hours." (Dkt. No. 44: Dodson 56.1 Stmt. ¶ 16.) CBS states that Dodson was one of twenty per diem editors at CBS but provides information about hours worked for only thirteen. (See pages 4-6 above.) Drawing all inferences in favor of Dodson as the non-movant, the Court assumes for the purposes of this motion that the scheduling information CBS has allegedly failed to provide would show that CBS scheduling favored female editors over Dodson and other male editors. In any event, the Court finds that the gaps in CBS' data, at best, leaves a question of fact as to whether at least some female editors got more hours of work than Dodson.

Dodson also claims that he "was often assigned to work in a small badly equipped room" referred to as the "broom closet" (Dodson 56.1 Stmt. ¶¶ 17, 62), and he took offense to the room assignment because "[t]his would be a room, that you would put a 'new' editor in, not an experienced editor like my self, it was also embarrassing" (Dodson 56.1 Stmt. ¶¶ 62, 73). Dodson claims the room assignment demonstrates a discriminatory motive because he "never saw any female editor working in, or assigned to that room, during [his] entire employ at CBS." (Dodson 56.1 Stmt. ¶ 62.) CBS states that female per diem editors, including Burnette and Somers, were assigned to this editing room. (CBS 56.1 Stmt. ¶ 74; DiGiovanni Aff. ¶¶ 31-32.)

In light of DiGiovanni's comment and Dodson's allegations regarding discriminatory scheduling, assignments, and room assignments, the Court finds that Dodson has raised an inference of discrimination narrowly sufficient to survive summary judgment. See, e.g., Chertokova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) ("The circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus . . . [and] preferential treatment given to employees outside the protected class. . . . [T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision. . . ."). Accordingly, CBS' summary judgment motion on this claim should be denied.

III. SUMMARY JUDGMENT SHOULD BE DENIED ON DODSON'S RETALIATORY TERMINATION CLAIM BASED ON HIS JUNE 2000 COMPLAINT

Dodson claims that CBS terminated him in retaliation for his June 5, 2000 complaint to Charles Fagan that "DiGiovanni discriminated against [Dodson] and other men with regard to the hiring and scheduling of news editors by hiring and favoring inexperienced female news editors."²⁷ (Dkt. No. 1: Compl. ¶ 20.) Dodson alleges that

27 Dodson does not appear to allege that his termination was in retaliation for his October 1999 complaint to Harry Cannon (see pages 18-19 above). (See Dkt. No. 45: Dodson Br. at 8-11.) Even if Dodson could show that Harry Cannon communicated his October 1999 complaint to DiGiovanni, which Cannon denies (Dkt. No. 32: CBS 56.1 Stmt. ¶ 76; Dkt. No. 35: Cannon Aff. ¶ 12), Dodson cannot establish a causal connection between that October 1999 complaint and his termination in June 2000. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 1511 (2001). The Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v.Cornell Coop. Extension, 252 F.3d 545, 554-555 n. 5 (2d Cir. 2001) (collecting cases). Nevertheless, the eight months between Dodson's complaint to Cannon and his termination is not the "very close" proximity sufficient to raise an inference of causality.Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *22 n. 31 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (finding no causation where six months elapsed between plaintiff's DHR complaint and her termination) ( cases cited therein).

Mr. Fagan and Mr. DiGiovanni clearly decided to remove plaintiff permanently from the schedule as a result of plaintiff's conversation with Mr. Fagan, in which [Dodson] complained about discrimination. Mr. DiGiovanni's recent claim that he actually made the decision [to fire Dodson] before [Dodson's] conversation with Mr. Fagan creates an issue of fact that should bar the granting of summary judgment.

To further confuse the issue, CBS apparently gives as a reason for the termination of Mr. Dodson the report by Mr. Kentrianakis that Dodson had made a reference to "loading up a shotgun." [Dkt. No. 31: CBS Br. at 32.] This later-created justification is offered by defendants, even though Kentrianakis concedes that he only informed Fagan and DiGiovanni of the statement after CBS had already decided that plaintiff should be terminated. [Dkt. No. 36: ¶¶ 46-50.]

(Dkt. No. 45: Dodson Br. at 8.) Dodson notes that in its EEOC Position Statement, CBS clearly states that "The decision to remove Mr. Dodson from the schedule was made after Mr. Dodson had met with Charlie Fagan, the Director of Broadcast Operations and Engineering, to express interest in Mr. Petrasko's vacant position." (Dkt. No. 44: Dodson 56.1 Stmt. Ex. MM: CBS EEOC Position Stmt. at 5; Dodson 56.1 Stmt. ¶ 94.)

Title VII retaliation claims also are governed by theMcDonnell Douglas burden-shifting analysis. See, e.g., Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004);Moss v. Enlarged City Sch. Dist., No. 03-7342, 81 Fed. Appx. 389, 390, 2003 WL 22849963 at *1 (2d Cir. Dec. 2, 2003); O'Hara v. Memorial Sloan-Kettering Cancer Ctr., No. 03-7049, 79 Fed. Appx. 471, 473, 2003 WL 22469710 at *2 (2d Cir. Oct. 31, 2003);Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003); Holtz v. Rockefeller Co., 258 F.3d 62, 79-81 (2d Cir. 2001);Slattery v. Swiss Reins. America Corp., 248 F.3d 87, 94 (2d Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 348 (2001);Raniola v. Bratton, 243 F.3d 610, 624-25 (2d Cir. 2001);Sotolongo v. New York City Transit Auth., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *21 n. 29 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *17 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.).²⁸

28 See also, e.g., Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *19-20 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *18 (S.D.N.Y. May 9, 2000) (Peck, M.J.); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *25 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.);Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 428 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd., No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

Under Title VII, it is unlawful for an employer to "retaliate" by discriminating against an employee because the employee engaged in protected activity, that is, "has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).²⁹

29 Accord, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21; see, e.g., Terry v.Ashcroft, 336 F.3d at 140; Minott v. Port Auth., 116 F. Supp.2d 513, 520, 524 (S.D.N.Y. 2000) ("Title VII defines protected activities as (1) an employee's opposition to any activity which is prohibited by Title VII, or (2) an employee's participation in any Title VII investigation or proceeding.");see also, e.g., Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("The objective of [the section prohibiting retaliation] is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice.").

"In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), abrogated on other grounds by, Burlington Indus. Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).³⁰

30 Accord, e.g., Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004); Terry v. Ashcroft, 336 F.3d at 141;Jenkins v. Board of Educ., No. 02-7479, 64 Fed. Appx. 801, 804, 2003 WL 1970492 at *2 (2d Cir. Apr. 28, 2003); Mack v.Otis Elevator Co., 326 F.3d 116, 129 (2d Cir.), cert. denied, 124 S.Ct. 562 (2003); Holtz v. Rockefeller Co., 258 F.3d at 79; Slattery v. Swiss Reins. America Corp., 248 F.3d at 94; Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993), cert. denied, 522 U.S. 1004, 118 S.Ct. 578 (1997); Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21; Kennebrew v. New York Hous. Auth., 2002 WL 265120 at *17; Gonzalez v.New York City Transit Auth., 2001 WL 492448 at *18; Cobian v.New York City, 99 Civ. 10533, 2000 WL 1782744 at *16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ( cases cited therein), aff'd, No. 01-7575, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Adeniji v.Administration for Children Servs., 43 F. Supp.2d at 419.

The Second Circuit "has consistently held that proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory actions directed against the plaintiff by the defendant." Gordon v.New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000);see also, e.g., Feingold v. New York, 366 F.3d at 156-157 ("[T]he requirement that [plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two.") (citing cases); Terry v.Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003); Raniola v.Bratton, 243 F.3d 610, 625 (2d Cir. 2001); Nonnenmann v.City of New York, 02 Civ. 10131, 2004 WL 1119648 at *22 (S.D.N.Y. May 20, 2004) (Peck, M.J.) ("'Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'") (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)).

Here, Dodson's evidence that he was terminated within days of complaining to Fagan about sex discrimination is so close in time to allow an inference of the causation element of his retaliation claim, without more. See, e.g., Feingold v. New York, 366 F.3d at 156-57 (issue of fact as to retaliation causation where supervisors recommended terminating plaintiff two weeks after his complaint); Treglia v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002) ("The temporal proximity between [platintiff's] protected activity in February 1998 and the allegedly adverse employment actions in March 1998 is sufficient to establish the required causal link for a prima facie case."); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) ("Although the plaintiff filed her complaint with the EEOC on February 4, 1994, the complaint was not served on [defendant] until the beginning of April 1994. She was suspended later that month. This time span is short enough to permit a jury to infer a causal connection.");Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (Causal connection established where plaintiff was fired "just 20 days after GE learned that she had hired an attorney to pursue her claim of gender discrimination."); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (Causal connection "was shown in this case by, among other things, evidence that the time between the plaintiff's initial complaint and her discharge was a mere twelve days."); Borrero v. Collins Bldg. Servs., Inc., 01 Civ. 6885, 2002 WL 31415511 at *15 (S.D.N.Y. Oct. 25, 2002) (Plaintiff "allegedly ceased receiving calls for work assignments in the weeks immediately following her [sexual harassment] complaint to the police and to [defendant]. Approximately six weeks later, [defendant] discharged her. This short time-frame supports an inference that there was a causal connection between her complaints to the police and to [defendant's] management and her decreased opportunities to earn income and subsequent termination."); Bennett v. Progressive Corp., 225 F. Supp.2d 190, 212 (N.D.N.Y. 2002) ("[T]he six to seven-day span between the time plaintiff complained to [defendant] and the time she was terminated is adequate at the summary judgment stage to support an inference of a causal connection."); Brenlla v. LaSorsa Buick Pontiac Chevrolet, Inc., 00 Civ. 5207, 2002 WL 1059117 at *5, *8 (S.D.N.Y. May 28, 2002) ("[T]he temporal proximity between the plaintiff's request to be reinstated and the defendants' decision to terminate her employment [three days later] clearly supports the conclusion that [plaintiff] was terminated because she took FMLA-covered leave."). But in addition, Dodson has presented other evidence that his termination was in retaliation for his complaint to Fagan about alleged sex discrimination.

CBS articulates a legitimate, nondiscriminatory reason for terminating Dodson. Specifically, DiGiovanni contends that he decided that he "would not schedule [Dodson] again" "because there was not a great need for per diems at that time of year, and because . . . [of Dodson's] disruptive behavior and the complaints about him from other employees." (Dkt. No. 32: DiGiovanni Aff. ¶ 80; Dkt. No. 32: CBS 56.1 Stmt. ¶ 84.)

To establish a factual issue as to whether the articulated reason was pretextual. Dodson "need only show that a retaliatory motive was a factor in the adverse employment action." Ramos v.Marriott Int'l, Inc., 134 F. Supp.2d 328, 347 (S.D.N.Y. 2001);Riisna v. ABC, Inc., 219 F. Supp.2d 568, 573 (S.D.N.Y. 2002) ("Plaintiff is not obliged to prove that a defendant's proffered rationale for an adverse employment action is pretextual. She is obliged only to establish that retaliatory animus made a difference in [defendant's] action.") (citing Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). The circumstances of Dodson's telephone call to Kentrianakis and complaint to Fagan, Fagan's meeting with DiGiovanni and Kentrianakis, DiGiovanni's uncorroborated claim that he never intended to return Dodson to the schedule,³¹ and CBS' reliance on mostly undocumented complaints about Dodson's behavior³² raise material issues of fact from which a reasonable juror could infer a retaliatory motive. That Dodson called Kentrianakis after learning he was not on the schedule, does not necessarily demonstrate that DiGiovanni had made the decision to fire Dodson prior to his complaint, as CBS argues. (Dkt. No. 49: CBS Reply Br. at 6-7.) Dodson previously had been omitted from the schedule upon his return from vacation in May, at which time DiGiovanni claimed he had "forgotten" to assign hours to Dodson and thereafter returned him to the schedule. (See pages 20-21 above.)

31 For example, neither of Dodson's other supervisors — Kremer or Kentrianakis — were aware that DiGiovanni had decided that Dodson's employment would be terminated. (See Dodson 56.1 Stmt. ¶ 84.)

32 Aside from the complaints about undated incidents in Meadows' and Somers' affidavits, CBS offers no documentation of the "disruptive behavior." (DiGiovanni Aff. ¶ 80.) Compare, e.g., McGowan v. Texaco, Inc., No. 96-7548, 108 F.3d 1370 (table), 1997 WL 138438 at *1 (2d Cir. Mar. 21, 1997) (Plaintiff failed to raise jury question where the alleged retaliatory actions, including discharge "were clearly and indisputably justified by overwhelming and uncontradicted evidence of [plaintiff's] poor job performance, insubordination, and inability or refusal to get along with her coworkers and superiors."), cert. denied, 522 U.S. 1090, 118 S.Ct. 881 (1998); Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (Employer "satisfied its burden of production by proffering a veritable arsenal of undisputed, documented examples of [plaintiff's] inappropriate actions at work," which the Second Circuit characterized as an "overwhelming evidentiary presentation.").

Dodson thus has satisfied his burden of raising an issue of material fact that CBS' proffered reason was a pretext for retaliation. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir.) ("The inconsistency between the justifications offered for [plaintiff's] dismissal in the two proceedings [before the EEOC and in federal district court] raises a genuine issue of material fact with regard to the veracity of this non-discriminatory reason.") (citing EEOC v.Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (From defendant's inconsistent explanations for terminating plaintiff "a reasonable juror could infer that the explanations given by [defendant] . . . were pretextual, developed over time to counter the evidence suggesting age discrimination uncovered by the state investigation.")), cert. denied 530 U.S. 1261, 120 S.Ct. 2718 (2000); see also, e.g., Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001) ("[A] jury issue on the question of pretext may be created when an employer offers inconsistent and varying explanations for its decision to terminate a plaintiff."); Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999) ("Circumstantial evidence in the form of differing and inconsistent explanations from [defendant] raise questions of fact to rebut its alleged non-discriminatory reason for the wage disparity, and may provide the jury with a basis to find pretext."); Triola v. Snow, 305 F. Supp.2d 264, 271 (E.D.N.Y. 2004) (Plaintiff's retaliation claim "contain[s] disputed issues of material fact, namely, whether [supervisor] King's actions were done in retaliation for Plaintiff's EEO complaints or because the Plaintiff was an unsatisfactory employee," including conflicting testimony between plaintiff's supervisors. "King alleges that he removed the Plaintiff . . . because [another supervisor] Weaver told him that the Plaintiff was 'not working out,' . . . Weaver, however, does not recall this conversation and stated that the Plaintiff was doing a 'satisfactory job.'"); Hernandez v. Kellwood Co., 99 Civ. 10015, 2003 WL 22309326 at *21 (S.D.N.Y. Oct. 8, 2003) ("A material issue of fact does exist as to whether insubordination and poor performance on the part of Plaintiff were the real grounds for the firing or whether Plaintiff's discharge was actually retaliatory. Thus, the Court concludes that a rational jury could find that Defendants' stated rationale is a pretext for retaliation. Defendants' motion for summary judgment is, therefore, denied with respect to Plaintiff's claim of retaliatory discharge."); Spiegler v. Israel Discount Bank, 01 Civ. 6364, 2003 WL 21488040 at *13 (S.D.N.Y. June 25, 2003) ("Because material issues of fact regarding the cause and timing of [plaintiff's supervisor's] decision to fire [plaintiff] remain," and because plaintiff has established a prima facie case of retaliation, plaintiff''s "retaliation claims must be resolved at trial."); Shannon v. Fireman's Fund Ins. Co., 156 F. Supp.2d 279, 291 (S.D.N.Y. 2001) ("Numerous courts have stated that 'a plaintiff may establish pretext and thereby successfully oppose summary judgment . . . by demonstrat[ing] weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, non-discriminatory reason for its action.' Although [defendant] argues that at most, the discrepancies in its explanations for [plaintiff's] termination create a weak issue of fact as to whether [defendant's] proffered reason for termination was untrue, this evidence may be used by the jury to infer pretext.") (citations omitted); Shin v.ITOCHU Int'l, Inc., 97 Civ. 6235, 1998 WL 474198 at *5-6 (S.D.N.Y. Aug. 13, 1998) (Based on evidence that "calls into question [defendant's] assertion of the timing of the termination decision . . . a reasonable juror could infer that [defendant's] explanation [for plaintiff's termination] is pretextual." Furthermore, plaintiff "had twice complained of 'discrimination' prior to the termination decision, and may have been viewed as a repeat 'complainer.' Plaintiff, therefore has satisfied her burden of demonstrating that the proffered reason for her termination was pretextual.") (citations omitted).

Because Dodson has raised material issues of fact as to whether CBS legitimately interpreted his "shotgun" comment as a threat rather than a metaphor³³ and as to whether DiGiovanni permanently removed Dodson from the per diem schedule before learning of the comment, CBS' summary judgment motion on Dodson's retaliatory termination claim should be denied.

33 Kentrianakis, to whom Dodson made the comment, took no action on it until after Dodson's meeting with Fagan. (See page 27 above.) Indeed, by CBS' own testimony, only after Fagan suggested to DiGiovanni and Kentrianakis that they should stop using Dodson as a per diem editor (i.e., fire him), only then did Kentrianakis remember Dodson's "shotgun" comment from the prior evening. (See pages 26-27 above; see also Dkt. No. 31: CBS Br. at 32 ("DiGiovanni had already decided to stop scheduling Dodson because of the many complaints about his behavior, as well as his own observations, and Dodson's threat to bring in a loaded shotgun would have prompted DiGiovanni to terminate Dodson outright, regardless of the complaint to Fagan.")).

The Court finds that material issues of fact exist regarding Dodson's retaliatory termination claim. CBS' motion for summary judgment on this claim should therefore be denied.

IV. DODSON'S NYSHRL AND NYCSHRL CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS FAGAN, DIGIOVANNI AND KENTRIANAKIS SHOULD NOT BE DISMISSED, WHILE THE CLAIMS AGAINST PETTITI SHOULD BE DISMISSED

It is black letter law in this Circuit that only the employer and not individual supervisors is the proper defendant in a Title VII case. Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995);Marshall v. National Ass'n of Letter Carriers BR36, 02 Civ. 1361, 2003 WL 22519869 at *11 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.); Gonzalez v. New York City Tran. Auth., 00 Civ. 4293, 2001 WL 492448 at *8 (S.D.N.Y. May 9, 2001) (Peck, M.J.);Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *10 n. 23 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Fletcher v. Runyon, 980 F. Supp. 720, 722 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *10, *20 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.). Thus, summary judgment should be granted to the individual defendants dismissing Dodson's federal claims.

The Court turns to Dodson's claims against the individual supervisors under the NYSHRL and NYCHRL.

CBS argues that summary judgment should be granted against the individual defendants in the case because Dodson cannot show that the individuals aided or abetted discrimination by CBS. (Dkt. No. 31: CBS Br. at 33.)

A supervisor is an 'employer' for purposes of establishing liability under the NYSHRL if that supervisor 'actually participates in the conduct giving rise to [the] discrimination.' Tomka [v. Seiler], 66 F.3d at 1317. In addition, the NYSHRL states that it shall be an unlawful discriminatory practice 'for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so.' N.Y. Exec. Law § 296(6). . . .

The same standards of analysis used to evaluate aiding and abetting claims under the NYSHRL apply to such claims under the NYCHRL because the language of the two laws is 'virtually identical.'

Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004); see also, e.g., Hafez v. Avis Rent A Car Sys., Inc., No. 99-9459, 242 F.3d 365 (table), 2000 WL 1775508 at *3 (2d Cir. Nov. 29, 2000); Curran v. All Waste Sys., Inc., No. 99-9250, 213 F.3d 625 (table), 2000 WL 639999 at *2 (2d Cir. May 16, 2000); Daniels v. Alvarado, No. 03 CV 5832, 2004 WL 502561 at *4 (E.D.N.Y. Mar. 12, 2004) (Weinstein, D.J.) ( cases cited therein); King v. Town of Walkill, 302 F. Supp.2d 279, 295-97 (S.D.N.Y. 2004) ( cases cited therein); Gentile v.Town of Huntington, 288 F. Supp.2d 316, 321-22 (E.D.N.Y. 2003); Farage v. Johnson-McLean Tech., Inc., 01 Civ. 4856, 2002 WL 1067824 at *6 (S.D.N.Y. May 29, 2002); Dunson v.Tri-Maintenance Contractors, Inc., 171 F. Supp.2d 103, 113-14 (E.D.N.Y. 2002); Walker v. New York City Transit Auth., 99 Civ. 3337, 2001 WL 1098022 at *10 (S.D.N.Y. Sept. 19, 2001) (Chin, D.J.). Material issues of fact exist as to the roles that Fagan, DiGiovanni and Kentrianakis played in the timing and decision to terminate Dodson. (See pages 21-28, 51, 55-57 above.) Summary judgment should be denied as to Fagan, DiGiovanni and Kentrianakis on Dodson's retaliatory termination claim under the NYSHRL and NYCHRL.

Dodson fails to state a claim against Anthony Pettiti, however. Pettiti, Senior Vice President of Programming and Business Affairs from 1998 to 2000, avers that he "had no involvement in the hiring, scheduling, or decision not to hire Gary Dodson." (Dkt. No. 34: Pettiti Aff. ¶¶ 1, 3.) Dodson states that he named Pettiti as a defendant because "as General Manager of CBS, was, and is, responsible for the actions of CBS's agents, as Mr. Pettiti, ulti[mate]ly, has the final say, on anything that transpires at WCBS-TV." (Dkt. No. 45: Dodson Br. at 12.) According to Dodson, "Pettiti took over responsibility of Mr. Fagan's position in July of 2000." (Dkt. No. 45: Dodson Br. at 12.) Dodson testified at his deposition that Pettiti's failure to investigate Dodson's claims of sexual discrimination (as reported to Fagan) was the sole basis for Dodson's claim against Pettiti. (Dodson Dep. at 192-93.) Because Dodson's claim against Pettiti fails to meet the "aiding and abetting" standard of supervisor liability as stated above, summary judgment should be granted as to Pettiti.

CONCLUSION

For the reasons stated above, defendants' summary judgment motion should be denied as to Dodson's discriminatory refusal to promote claim, denied as to his retaliatory termination claim, and denied as to his NYSHRL and NYCHRL claims against the individual defendants (except granted as to defendant Pettiti).

Pursuant to the Court's scheduling order (Dkt. No. 5), the Joint Pretrial Order is due thirty days from this Report and Recommendation, that is, due by July 15, 2004.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 So. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).