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A Pizza Hut delivery boy who was forced by his boss to say a prayer and spank himself with his own belt for an alleged transgression cannot sustain a civil rights action against the restaurant corporation, a federal judge in New York has ruled. Although Judge David N. Hurd of the Northern District of New York in Utica found that while the conduct of the supervisor clearly created a hostile work environment, there is simply nothing that Pizza Hut could or should have done differently. Consequently, Hurd granted summary judgment dismissing the complaint in its entirety. Yerry v. Pizza Hut, 00-CV-1131, arises out of an incident in February 1999, when Toby Yerry was an 18-year-old delivery driver for the Gloversville Pizza Hut in Fulton County, N.Y. After returning from his last delivery, Yerry was confronted by his supervisor, Charles White, who inquired about a missing delivery ticket. Yerry found the ticket in his car and gave it to White along with the money for the delivery. White then accused Yerry of attempting to steal the money, and insisted that the teen-ager needed to be punished. Initially, White suggested that he would spank Yerry and require the delivery boy to recite a prayer. Yerry would not consent, but fearful of losing his job agreed to go into a locked rest room with White. In the rest room, Yerry lowered his pants and spanked himself. The next day, Yerry returned to the restaurant with his mother and girlfriend and reported the incident to the restaurant manager. Although White denied the accusations, he was immediately suspended and never returned to work. Yerry then sought damages under Title VII of the Civil Rights Act of 1964, New York human rights law and common law. As a threshold matter, Judge Hurd said that while an isolated incident of harassment will not normally create a hostile work environment, an episode as egregious as alleged in this case will suffice. “It is reasonable to conclude that an 18-year-old boy would find being forced by his supervisor to say a prayer and spank himself with his own belt in a locked rest room while the supervisor watched sufficiently severe as to alter the terms and conditions of his employment,” Hurd wrote. But extending that to employer liability is too far of a stretch, the court found. Yerry argued that Pizza Hut should have known that White was a problem because it had retained the supervisor even after learning that he had been charged with sexual abuse and endangering the welfare of minor boys. He contended that Pizza Hut, therefore, failed in a duty to protect the employee from the boss’s conduct. But Hurd observed that White denied the allegations surrounding his arrest, and that “Pizza Hut had no duty to fire White on the basis of allegations of actions that occurred outside of work while there were no allegations of sexually harassing conduct in work.” Additionally, Hurd found that Pizza Hut responded quickly and appropriately when it learned of the alleged incident with Yerry. White was promptly suspended and Yerry never again had to work with him, the court said. Yerry had also attempted to pursue a retaliation claim on the allegation that he was treated differently by co-workers after the incident. Hurd, however, found the claim “far too speculative.” Finally, the court said that individual employees cannot be held liable under New York human rights law, but can be liable as aiders and abettors. However, without a finding that Pizza Hut engaged in discriminatory conduct, White cannot be roped in under state law, Hurd said. Appearing were: James S. Gleason of Hinman, Howard & Kattell in Binghamton, N.Y., for Pizza Hut; Lisa F. Joslin and Susan S. Dautel of Deily, Dautel & Mooney in Albany, N.Y., for Yerry; and Thomas A. Saitta of Aswad & Ingraham in Binghamton for White.

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