MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff John Kane brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §2000e et seq., against Defendant Club Helsinki LLC1 (“Club Helsinki”) alleging that he was subjected to quid pro quo sexual harassment when his hours were reduced and his employment was terminated after he refused the sexual advances of a supervisor. (Dkt. No. 1). Presently pending before the Court is Defendant’s motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 30). The motion is fully briefed, with an opposition and reply. (Dkt. Nos. 31-34, 36). For the reasons set forth below, Defendant’s motion is denied. II. FACTS2 A. Plaintiff’s Employment at Club Helsinki Defendant operates Club Helsinki, a music venue, restaurant, and event space located in Hudson, New York, (Dkt. No. 32, at 1). In May 2016, Plaintiff began working at Club Helsinki as a bartender. (Dkt. No. 32, at 1). During the entire time Plaintiff worked at Club Helsinki, Austin Sullivan was the Director of Operations. (Id. at 2). In this role, Sullivan oversaw scheduling “front-of-house” employees, which included hosts, servers, food runners, bussers, and bartenders. (Dkt. No. 33-4, at 38). Sullivan made the schedule every week and sent it to employees via e-mail. (Id. at 39; see Dkt. Nos. 33-9, 33-10). Sullivan also had the authority to hire and fire employees. (Dkt. No. 38-1, at 2). During Plaintiff’s employment, Marc Schafler held a supervisory and managerial role overseeing the operations of Club Helsinki. (Dkt. No. 30-7, 3; Dkt. No. 32, at 1). Sullivan “understood that [Plaintiff] was gay from the beginning” of Plaintiff’s employment at Club Helsinki. (Dkt. No. 33-4, at 53). Plaintiff and Sullivan had a “social relationship” that existed outside of work, and Sullivan considered Plaintiff a friend. (Dkt. No. 32, at 14; Dkt. No. 33-4, at 50-52). On August 6, 2016, Sullivan send Plaintiff an e-mail informing him that he was “[a]lways hearing great things about” Plaintiff at Club Helsinki, and that Sullivan “wholeheartedly appreciate[d] that just in case [Plaintiff] didn’t know.” (Dkt. No. 33-4, at 118). Sullivan testified that he sent the e-mail because he “had heard good things as it related to [Plaintiff's] service.” (Id.). B. Sexual Harassment Allegations At his deposition, Plaintiff testified as follows. Sullivan sexually propositioned Plaintiff in Sullivan’s office in the fall of 2016, either in October or November, “or possibly the very last weekend of September.” (Dkt. No. 33-3, at 53). Plaintiff told Sullivan that he “would like to do more work and make a little bit more money,” and in response Sullivan said he “used to sleep with his manager to get shifts, and did [Plaintiff] want better shifts.” (Id. at 55). Sullivan was seated in a “swivel chair,” and turned towards Plaintiff “and sort of spread his legs.” (Id.). Plaintiff did not say anything in response and left the room. (Id.). After this incident, Plaintiff attempted to avoid Sullivan by “minimiz[ing] any personal talk and keep[ing] physical distance from [Sullivan] to avoid any inappropriate touching or suggestion that [Plaintiff] might be interested.” (Id. at 56-57). Sullivan sometimes “rub[bed] shoulders, slap[ped] butts, [and acted] suggestively to [Plaintiff] and other male employees.” (Id. at 57). Sullivan ceased these behaviors towards Plaintiff “[w]ithin weeks” of Plaintiff rejecting Sullivan’s proposition. (Id. at 99). Sullivan denies ever sexually propositioning Plaintiff by indicating that he would receive better shifts by “sleeping” with Sullivan. (Dkt. No. 30-8, 10). Sullivan also denies ever engaging in “unwanted physical touching.” (Id. 11). Plaintiff testified that he began to see a decrease in the shifts he was scheduled to work in “early December,” “when they hired another bartender.” (Dkt. No. 33-3, at 61). Staff schedules show that between July 2016 and December 2016, Plaintiff was generally assigned four to six shifts a week. (Dkt. No. 33-7, at 11-36). Beginning in January, Plaintiff’s shifts were cut roughly in half and he was never assigned more than three shifts a week for the remainder of his employment. (Id. at 28-29, 38-48).3 Plaintiff testified that a newly hired bartender, John Spoto, took “at least two” of Plaintiff’s shifts each week. (Id. at 120). Sullivan testified that Spoto had previously worked at Club Helsinki, and was rehired for “approximately five weeks in January and the first week of February 2017.” (Dkt. No. 33-4, at 87). Spoto first appears on the staff schedule for the first week of January. (Dkt. No. 33-7, at 39). Spoto was generally assigned two shifts a week during January 2017 and the first week of February 2017. (Id. at 28-29, 38-40). C. Complaints About Plaintiff Sullivan testified that he reduced Plaintiff’s hours because servers complained that Plaintiff was trying to take their tables and customers complained that Plaintiff had inappropriate conversations about sex. (Dkt. No. 33-4, at 108). In an affidavit in support of the motion for summary judgment Sullivan averred that he did not reduce Plaintiff’s shifts because of any “supposed advances” being rejected, and that fluctuations in the frequency of Plaintiff’s shifts “depended on whether the Club was busy or not at that particular time.” (Dkt. No. 30-8, 12). Sullivan stated that Plaintiff’s shifts “became more on the music-venue side of the Club, as opposed to the restaurant side” in response to “the complaints [Club Helsinki] had received from servers and customers alike concerning Plaintiff’s conduct while working the bar at the Club’s restaurant.” (Dkt. No. 30-8, 12). Sullivan did not discuss why Plaintiff’s shifts were being reduced with Plaintiff. (Dkt. No. 33-4, at 109-10). Sullivan testified that he received complaints from servers that Plaintiff “sent servers home” to take the tables they were serving and earn more money in tips. (Dkt. No. 33-4, at 59-61; Dkt. No. 30-8, 5). Sullivan identified two servers who complained that Plaintiff asked them to go home so he could take over their tables. (Dkt. No. 33-4, at 109). Sullivan averred that he also “received complaints from both servers and some of [the] restaurant customers that Plaintiff’s off-color sexual comments made them feel uncomfortable.” (Dkt. No. 30-8, 5). Sullivan testified that he also received a complaint from the father of two former teenage Club Helsinki employees regarding Plaintiff “speaking a little too gay to his sons.” (Dkt. No. 33-4, at 88, 90; Dkt. No. 33-3, at 76). According to Sullivan, the father complained that his son had been made uncomfortable “by a conversation [Plaintiff] had with him.” (Dkt. No. 33-4, at 91). Sullivan testified that he informed Schafler about this conversation, but did not recall whether he discussed it with Plaintiff. (Id. at 89, 91). Sullivan did not speak to either of the Club Helsinki employees, and did not know which son was involved in the conversation. (Id. at 92). In addition to these complaints, Sullivan claims he received “a series of complaints” from a “long-time bartender” named Jessica Sanchez. (Dkt. No. 30-8, 5). According to Sullivan, Sanchez claimed that when “she would work the bar on the restaurant side of the Club, and Plaintiff was working the bar in the concert venue, Plaintiff was often rude, hostile and aggressive.” (Id. 6). Sanchez informed Schafler that she had heard that Plaintiff “had made several customers uncomfortable by engaging in sexually explicit conversation that often involved graphic content.” (Dkt. No. 30-6, 6; Dkt. No. 30-7, 5). Sanchez submitted an affidavit stating that she informed Sullivan of one specific incident that occurred in early 2017, where “Plaintiff shoved a rack of glassware into [her], and screamed at her to stay away from his side of the bar.” (Dkt. No. 30-8, 7; Dkt. No. 30-6, 7). According to Sanchez, Plaintiff shouted at her to “take [her] shit and get out of here!” (Dkt. No. 30-6, 7). After this incident, Sanchez informed Sullivan that she “was no longer comfortable working alongside Plaintiff, and that [she] did not feel safe working the same shifts as him.” (Dkt. No. 30-6, 8; Dkt. No. 30-8, 7). Sanchez averred that she reported the incident to both Sullivan and Schafler. (Dkt. No. 30-6, 8). Schafler averred that he learned about this incident, “in or about March of 2017″ from Sullivan, (Dkt. No. 30-8,
7-8; Dkt. No. 30-7, 6), and then spoke to Sanchez about what occurred, (Dkt. No. 30-7, 7). Sullivan was not present for this incident, and never spoke with Plaintiff about what happened. (Dkt. No. 33-4, at 85). Plaintiff’s personnel file contains an “Employee Disciplinary Action Form” documenting this incident. (Dkt. No. 33-23, at 34). The form lists April 2, 2017 as the “date of warning,” but the section on the form for an employee’s signature verifying that he has read and received the warning is blank. (Id.).4 Plaintiff testified that while he had “somewhat” negative interactions with Sanchez during their time working together due to her “very different style[],” he never pushed a cart of glasses against her or had any type of physical altercation with her. (Dkt. No. 33-3, at 73-74). As a bartender, Plaintiff did talk about sex with customers, because “[t]hat is part of being a bartender.” (Id. at 77). He “[s]ometimes” discussed sex and his personal life with coworkers but was never told to stop by his coworkers. (Id.). Plaintiff denied ever making any sexual advances towards teenage employees at Club Helsinki, and did not recall having any “sexual discussions” with either of the employees whose father allegedly complained. (Id. at 76). The parties dispute whether Sullivan ever spoke with Plaintiff, during his employment, about any complaints from customers or coworkers. (Dkt. No. 38-1, at 16). Plaintiff testified that neither Schafler nor Sullivan ever spoke to him concerning any work-related or performance concerns, (Dkt. No. 33-3, at 168-69), and Sullivan testified that he did have a conversation with Plaintiff about sending servers home early. (Dkt. No. 33-4, at 61). D. Plaintiff’s Attempts to Report Sullivan’s Conduct In December 2016, Plaintiff testified that another employee, Luke LaMarca,5 asked Plaintiff “why [Plaintiff] was losing shifts.” (Dkt. No. 33-3 at 57). Plaintiff “confided in [LaMarca] that Mr. Sullivan had made an inappropriate advance, that [Plaintiff] had rebuffed him, that [Plaintiff] was trying to keep [his] distance from him and as a result, [Sullivan] was acting more hostilely towards [Plaintiff].” (Id.). Plaintiff testified that he told LaMarca he wanted to speak with Schafler about Sullivan’s proposition, and LaMarca said that Schafler would “probably sit there and listen to [Plaintiff] and then fire [him].” (Dkt. No. 33-3 at 110). Plaintiff further testified that LaMarca advised Plaintiff that “the best thing for [Plaintiff] to do would just be to go quietly” and find a new job. (Id. at 111). According to Plaintiff, he attempted to discuss Sullivan’s proposition with Schafler, and “let [him] know several times that [Plaintiff] would like to speak to him privately.” (Id. at 85). In response, Schafler told Plaintiff to “come see him during off hours,” which Plaintiff tried to do. (Id.). Plaintiff testified that because these discussions “generally” took place “on the floor during service,” he told Schafler only that “[i]t was serious and [that Plaintiff] wanted to speak to him in private,” but did not elaborate as there were customers and employees present. (Id. at 86). Plaintiff contacted Schafler “[a]t least four or five” times to ask to meet with him, but did not receive a response. (Id. at 86, 91-92; see Dkt. No. 33-13). Plaintiff testified that he did not want to put his allegations towards Sullivan in an e-mail, because he did not want to “be ignored” or risk miscommunicating what happened. (Id. at 103). On January 11, 2017, Sullivan sent the following e-mail to all employees: “unless you’re scheduled [to work], please don’t be in the building during the day, or anywhere back of house on any evening you’re not on the floor.” (Dkt. No. 33-11, at 2). Plaintiff testified that this e-mail came right after his attempts to reach Schafler, and that he felt Schafler was avoiding him. (Dkt. No. 33-3, at 85-87). Sullivan testified that at the time he sent the email, he did not know that Plaintiff was trying to contact Schafler, (Dkt. No. 33-4, at 98), and that he instituted the policy after Hugh Horner, Club Helsinki’s chef, reported that he saw Plaintiff coming out of an office in which cash, checks, and employee data was stored, (Dkt. No. 33-4, at 128). Sullivan never discussed this with Plaintiff. (Id. at 129). Sullivan averred that the e-mail “was not directed at Plaintiff, but was sent to all employees, in an effort to keep staff from loitering when they were not otherwise supposed to be present, as their doing so tended to interfere with Club operations.” (Dkt. No. 30-8, 13). Schafler denies that the new policy was a “rebuke” of Plaintiff’s attempts to meet, and averred that as he was “physically present at the Club at least 5-7 days per week,” Plaintiff “would have had little difficulty tracking [him] down if [Plaintiff] felt the need to meet.” (Dkt. No. 30-7, 13). Schafler testified that the policy was put in place, and the e-mail sent out, as a result of Horner seeing Plaintiff walk out of an unlocked office “[a]t a point in time that [Plaintiff] should not have been coming out of the office.” (Dkt. No. 33-5, at 19). Schafler did not speak with Plaintiff about the incident, but thought both Horner and Sullivan spoke to Plaintiff, although he “[didn't] know for sure” if Sullivan did. (Id. at 19-20). Plaintiff testified that during their December 2016 conversation, LaMarca informed Plaintiff that Sullivan had previously “behaved inappropriately towards other male employees during an annual trip to Atlantic City,” and had been “fired from his previous job as the manager of Santa Fe [a local restaurant] for sending.. dick pics to a minor who was an employee of his.” (Dkt. No. 33-3, at 65). Plaintiff testified that he confirmed this information with another former employee at Santa Fe, “a nurse at [Plaintiff's] doctor’s office who also worked with [Sullivan].” (Id. at 68). Sullivan testified that he was not terminated, and left Santa Fe in 2011 on a “mutual understanding that he would be leaving” because he was starting a family. (Dkt. No. 33-4 at 14). Sullivan also testified that the year he left Santa Fe, an employee accused him of being inappropriate after Sullivan texted the employee a picture of male genitalia. (Dkt. No. 33-4, at 103). Sullivan acknowledged sending the picture, but stated that he sent it in a “joking manner.” (Id.). E. Plaintiff’s Termination Plaintiff was terminated in early April of 2017. (Dkt. No. 33-19). The parties dispute what happened at the termination meeting. Plaintiff testified that he was taken into an office where both Sullivan and Shafler were present and Sullivan “told [him] that they were going into a slow season, they didn’t need as many people and they were letting [Plaintiff] go.” (Dkt. No. 33-3 at 105). However, Plaintiff felt that Club Helsinki was coming out of a slow season because as the weather gets warmer, “shows pick up and people start going out to eat again.” (Id. at 106). Schafler did not speak at all during the termination meeting, and after his termination Plaintiff e-mailed Schafler and told him they still needed to speak about a “situation that has been ongoing for some time.” (Id. at 106-07; Dkt. No. 33-17 at 2). Schafler did not respond. (Id. at 106-07). Defendant asserts that it was Schafler, not Sullivan who terminated Plaintiff. Schafler averred that he “decided to terminate Plaintiff’s employment” based on complaints he had received regarding Plaintiff. (Dkt. No. 30-7, 8). Schafler stated that long-time employees Kelly and Sanchez informed him that Plaintiff “would often make rude and inappropriate comments to customers.” (Id. 5). Schafler was also informed by Sullivan that Plaintiff “had become hostile and aggressive towards [Sanchez], and that he had shoved a rack of bar glasses into her, and yelled at her in front of patrons.” (Id. 6). Schafler confirmed these accounts with Sanchez and Kelly. (Id. 8). According to Schafler, he terminated Plaintiff at a meeting in his office in April 2017, during which he told Plaintiff “that business was slow at the Club, and that [they] no longer needed [Plaintiff's] services.” (Id. 9). Additionally, Schafler averred that business “had slowed quite a bit, and there were not enough shifts to go around.” (Id.). He did not tell Plaintiff that the complaints “were a big part of why [Plaintiff] was being fired” because Schafler “wanted to avoid a ‘he said/she said’ confrontation.” (Id.). Schafler denies that Plaintiff’s termination was “in response to the fact that he had rebuffed Mr. Sullivan’s supposed advances,” (id.), and averred that he only learned about the alleged proposition when he was “served with papers that Plaintiff had filed with the EEOC,” (id. 10). For his part, Sullivan agreed he was present at Plaintiff’s termination meeting but denies that he was the one who terminated Plaintiff. (Dkt. No. 33-4, at 83-84). He testified that he did inform Schafler that Plaintiff “had an altercation with a female employee [at Club Helsinki].” (Id. at 84). Sullivan testified that he “didn’t recommend one way or another if [Plaintiff] be terminated,” but rather “gave [Schafler] the information needed for [Schafler] to make his decision.” (Id. at 85). Sullivan testified that at the termination meeting, Schafler informed Plaintiff he was being terminated because “business was slow, and the Club did not need his services at that time,” (Dkt. No. 30-8, 9). Sullivan denies that “[Plaintiff's] termination was in response to the fact that he had rebuffed my supposed advances,” and states that “Mr. Shafler [sic] terminated Plaintiff’s employment” for reasons that “had nothing to do with any fictitious sexual advances on [Sullivan's] part, or Plaintiff’s ‘rejection’ of the same.” (Id. 14). In a letter dated April 7, 2017, Schafler wrote Plaintiff that he was being terminated “for the following reason: We have decided to implement a work force reduction and your position has been eliminated.” (Dkt. No. 33-19, at 2). F. EEOC Charge On December 8, 2017, Plaintiff filed a verified charge with the Equal Employment Opportunity Commission (the “EEOC”). (Dkt. No. 32, at 13; Dkt. No. 30-3, at 8-12). Plaintiff alleged quid pro quo sexual harassment based on his loss of shifts and termination after rejecting Sullivan’s proposition. (Id. at 11-12). In response, Schafler submitted an affidavit denying knowledge “of any such alleged behavior by Mr. Sullivan.” (Dkt. No. 33-18, 6). Schafler stated that Plaintiff’s hours “were reduced after holidays,” as “part of an overall reduction in workforce” and that Plaintiff was terminated “as part of our seasonal staff reduction.” (Id.
