Jackson v. Sheraton NY & Times Square Hotel et al

Filing 52

MEMORANDUM DECISION AND ORDER. I grant the defendant's motion for summary judgment on all of the plaintiffs claims. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se plaintiff, enter Judgment in favor of the defendant and close this case. Ordered by Judge Ann M. Donnelly on 6/3/2021. (Greene, Donna)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
X

CRYSTAL JACKSON,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

-against-

19-CV-4099(AMD)
(RML)

SHERATON NEW YORK TIMES SQUARE
HOTEL,
Defendant.
X

ANN M.DONNELLY,United States District Judge:

On July 30,2019, the plaintiff brought this pro se action alleging employment
discrimination and retaliation by her former employer, defendant Sheraton New York Times

Square Hotel. (ECF No. 6.) Before the Court is the defendant's motion for summary judgment.
(ECF No. 34.) For the reasons that follow, the defendant's motion is granted.
BACKGROUND'

The plaintiff filed this lawsuit after the defendant, Sheraton New York Times Square
Hotel,terminated her from her position as a guest services agent. (Def. 56.1 at ^ 7.) In 2015,
the plaintiffs relationship with a fellow guest services agent, Joannie Acevedo, started to

deteriorate. They argued and complained about each other to other employees. {Id. at ^ 9.) Ms.
Acevedo "frequently made physical threats of violence towards" the plaintiff, and in 2016
threatened that "her man" was "waiting outside to smack a fat black bitch like [the plaintiff]."
(ECF No.6 at 7-8.) The plaintiff and Ms. Acevedo filed competing complaints against each

'I have reviewed the entire record in connection with this motion, and construe the facts in the light
most favorable to the plaintiff, the non-moving party. See Capobianco v. City ofNew York, 422 F.3d 47,
50n.l (2d Cir. 2005).

other with the defendant's human resources department. (ECF No. 37 at ^ 12.)^ The plaintiff
also lodged a series of informal complaints against Ms. Acevedo from 2015 through 2018,
including that Ms. Acevedo made "false claims about [the plaintiff] to management... and
called her the B word," that Ms. Acevedo was "jeopardizing" the plaintiffs job, and that she

was "on face time talking to a man on a tablet" during their shift.^ (ECF No. 36-6 at 6, 10-12.)
The plaintiff also complained about Ms. Acevedo's tardiness and general demeanor. {Id.) In
November of2017, the plaintiff circulated a petition to have Ms. Acevedo removed from the

night shift at guest services because she created a "hostile environment" that made employees

"feel uncomfortable and unsafe in the workplace." {Id. at 19.) In February of 2018, the plaintiff
"filed a police report against Ms. Acevedo for harassment," and gave a copy ofthe report to the
defendant. (ECF No.6 at 8.)

On July 7,2018, the plaintiff and Ms. Acevedo were working in the guest services
center, standing approximately three feet apart. (Def. 56.1 at 114.) The plaintiff asked the
director of guest services to change Ms. Acevedo's seat, but Ms. Acevedo did not move. (ECF

No.41 at ^ 31.) Twice during their shift, Ms. Acevedo tried to hit the plaintiff by "deliberately"
pushing a chair in the plaintiffs direction; Ms. Acevedo also bent over "so that her buttocks

were close to the Plaintiffs face." {Id. at ^ 33.) The plaintiff later overheard Ms. Acevedo tell
a colleague that she was "going to get [the plaintiffs] fat ass fired when I go back to the office."
{Id.)

^ The plaintiff accused Ms. Acevedo of racial discrimination based on Ms. Acevedo calling the plaintiff
a "black bitch." (ECF No.6 at 7-8.) Ms. Acevedo's complaint alleged "harassment." (ECF No. 37 at ^
12.)

^ The defendant investigated Ms. Acevedo's use of a tablet during the shift, and concluded that Ms.
Acevedo violated the hotel's policies regarding the use of personal devices at workstations. (ECF No.
41 at 85.)

At around 10 p.m., the plaintiff began "drumming her fingers on her workstation and

humming." (Def. 56.1 at f 15.) Ms. Acevedo said,"Stop banging on the desk, fat bitch." (ECF
No. 41 at 33.) After this comment, Ms. Acevedo recorded the rest ofthe interaction on her

cellphone."^ Ms. Acevedo asked the plaintiff to "please stop" tapping her fingers, to which the
plaintiff responded,"Bitch die. Die bitch die. Die right now. Don't fucking say nothing else to
me. I'll tell you right now. Say something else to me. Say something else to me. Watch where

your ass is going out of here." (ECF No. 36-11.) Ms. Acevedo responded that she just asked
the plaintiff to stop the tapping, and that she was sitting at her seat "first."(ECF No. 36-10.)
The plaintiff continued to tap her fingers and also started singing, which she continued to do

throughout the 26-minute recording. {Id.) In addition, the plaintiff said the following to Ms.
Acevedo and fellow guest services agents:

• "Don't say nothing to me. Get your ass from over here. You got a problem with it?
Get your ass from over here. That's what you do. Don't say shit, idiot."

• "Stupid bitch. Don't say shit to me. Say something else to me. Say something else
to me. Say something else to me. One more time. Say something to me. Say
something. Stupid ass. Retarded bitch. You shouldn't have sat here anyway. Get
the fuck out of here."

• "Yeah, and I can fucking do what I want. What you going to do about it? Get the
fuck out of my face, you dumb ass."
• "What the fuck is wrong with you? Say something to me."

• "Y'all hear this girl say something to me? Y'all hear her over here? Minding my
business over here. Saying stuffto me when she knows she's not supposed to be

The Court has reviewed the entire recording.

talking to me .... She gotta be outta here because she don't understand. She thinks
it's a joke. Some idiots gotta be taught a lesson."
• "Say something else and it's going to get real fucking ugly in here. Real fucking
ugly. I'm tired of this fucking retard. Fucking retarded and don't know shit. Don't

know no better. Fucking asshole. Say something else to me. Better get the fuck
down here. I'm not in the mood for this fucking dummy today. And the next step
...fucking shit head."
• "You witness that? I called security because this is over her harassing me and

they're not coming down. So she says something else to me you'll all be my
witnesses. I'm not going to be the one out ofa job tonight. Bet and believe that.
I'm not. Trust and believe. I've got enough papers to prove I'm not going to lose
my job. Trust and believe that. Trust. Trust. 1 got, I'm not losing nothing about
this thing over here. Trust and believe. They act like they can't get rid of her.
They're going to find out."

• "I must look like, I don't know, I have 'sucker' written on my forehead, but trust and
believe."

(ECF No. 36-10.) At various points in the recording, Ms. Acevedo said,"Ok." {Id.) At another
point, the plaintiff answered a call from hotel security, and said,"I'm being harassed by

someone on my shift. I have a coworker that's not supposed to say things to me." {Id.)^ Ms.
Acevedo also spoke with someone from hotel security, and told the plaintiff that security
wanted the plaintiff to "go up to the [security] office." The plaintiff responded,"Then they're
going to have a problem in here." {Id.)

The plaintiff had called security earlier in the evening.

That evening, Ms. Acevedo filed a complaint with Arnold Milliken, the defendant's

security manager, accusing the plaintiff of"workplace harassment, creating a hostile work
environment,[and] using vulgar/obscene and unprofessional language with a co-worker in a

threatening tone." (ECF No. 36-12 at 1, 5.)^ Mr. Milliken referred the complaint to Patrick
Athy,the director of human resources, for an investigation, and suspended the plaintiff pending
the outcome ofthe investigation. {Id. at 3; Def. 56.1 at ^ 25.)
As part of his investigation, Mr. Athy reviewed the recording from Ms. Acevedo's

cellphone, and interviewed other guest services agents, who corroborated "the authenticity and
veracity ofthe recording."(ECF No. 36-12 at 4.) He also reviewed the plaintiffs personnel
file, her past complaints against Ms. Acevedo, and Mr. Milliken's report ofthe statement the
plaintiff made after her altercation with Ms. Acevedo. {Id. at 3.) In a report finalized on

September 27,2018, Mr. Athy concluded that the plaintiff was "abusive, aggressive and
threatening," and that her behavior violated "the hotel's Standards of Conduct prohibiting using
obscene, abusive or threatening language or gestures," as well as the hotel's policies on
"Workplace Violence, Anti-discrimination, Unwelcome Harassment & Retaliation." {Id. at 4-

5.)' He found that the plaintiffs conduct was "grounds for immediate dismissal," and that the
defendant "had just cause to discharge" the plaintiff. {Id.)
The plaintiff appealed Mr. Athy's decision, and an impartial arbitrator heard testimony
from the plaintiff, Ms. Acevedo, Mr. Athy, and other guest services agents, and reviewed the

^ Around the same time,the plaintiff filed a competing complaint against Ms. Acevedo "alleging
mistreatment." (Def. 56.1 at f 31.) The defendant conducted a separate investigation into the plaintiffs
allegations, and could not corroborate her complaint. {Id.)

' defendant has "a comprehensive anti-harassment policy and complaint procedure ...[which]
The
prohibits harassment based on any discriminatory reason," and prohibits employees "from engaging in
threats and acts of violence against co-workers." (Def. 56.1 at 2-5.) Its Standards of Conduct
"prohibits the use of obscene, abusive or threatening language or gestures." {Id.)

cell phone recording. (ECF No. 36-8.) The arbitrator determined that Ms. Acevedo "did not do
or say anything to provoke" the plaintiff during the "six hours" that they worked next to each

other. {Id. at 5-6.) He also found that the plaintiffs statements "were laced with profanities and
included nasty and reprehensible insults," were "made in a menacing tone," and "constituted

threats to do physical harm." {Id.) Taken as a whole, the arbitrator concluded, the plaintiffs

conduct interfered with the defendant's "ability to provide the atmosphere and service expected
of it," and was "ground[s]for dismissal." {Id.) The plaintiff was officially terminated on
October 18,2018. (ECF No. 37 at^ 18.)
The plaintiff filed a Charge of Discrimination with the U.S. Equal Employment
Opportunity Commission, which dismissed her claim on June 18, 2019. (ECF No.6 at 13.) On

July 12,2019, the plaintiff filed a complaint in this Court. (ECF No. 1.) On July 18, 2019,1

dismissed her complaint for failure to state a claim, and on July 30,2019, the plaintiff filed an
amended complaint. (ECF Nos. 4, 6.) I dismissed the plaintiffs disability discrimination claim

on August 22,2019, but allowed her Title VII claim to proceed. (ECF No. 7.) The defendant
moves for summary judgment, claiming that the plaintiff has not established a primafacie case
of either race discrimination or retaliation. (ECF No. 34.)
LEGAL STANDARD

Summary judgment is appropriate only if the parties' submissions, including deposition
transcripts, affidavits, or other documentation, show that there is "no genuine dispute as to any
material fact," and that the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48(1986). The movant has
the "burden ofshowing the absence of any genuine dispute as to a material fact." McLee v.
Chrysler Corp., 109 F.3d 130, 134(2d Cir. 1997); Tsesarskaya v. City ofNew York, 843 F.

Supp. 2d 446,453-54(S.D.N.Y. 2012)("While disputes over facts that might affect the

outcome ofthe 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."(quoting
Anderson,477 U.S. at 248)). "Once the moving party has met this burden, the party opposing
summary judgment must identify specific facts and affirmative evidence that contradict those

offered by the moving party to demonstrate that there is a genuine issue for trial." Ethelberth v.
Choice Sec. Co., 91 F. Supp. 3d 339, 349(E.D.N.Y. 2015)(citing Celotex Corp. v. Catrett, All
U.S. 317,324(1986)). The non-moving party "may not rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence showing that its version of the events is
not wholly fanciful." D'Amico v. City ofNew York, 132 F.3d 145, 149(2d Cir. 1998). In

deciding whether summary Judgment is appropriate, the court must resolve all ambiguities and
draw all reasonable inferences in favor ofthe non-moving party. See Kaytor v. Elec. Boat
Corp.,609 F.3d 537, 545(2d Cir. 2010);Salomon v. Our Lady of Victory Hosp., 514 F.3d 217,
226(2d Cir. 2008).
DISCUSSION
I.

Discrimination

Title VII ofthe Civil Rights Act of 1964 makes it unlawful for an employer to
"discriminate against any individual with respect to [her] compensation, terms, conditions, or

privileges ofemployment" on the basis of the individual's "race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a). Disparate treatment claims under Title VII are analyzed using
the McDonnell Douglas burden-shifting framework. Bowen-Hooks v. City ofNew York, 13

F. Supp. 3d 179,209-10(E.D.N.Y. 2014)(citing McDonnell Douglas Corp. v. Green,411 U.S.
792,802-03(1973)). Under the framework, the plaintiff must first establish a primafacie case

of discrimination. See id. Once the plaintiff makes that showing,"the burden of production
[shifts] to the employer and require[es] the employer to come forward with its justification for

the adverse employment action against the plaintiff." Littlejohn v. City ofNew York, 795 F.3d
297, 307(2d Cir. 2015). Ifthe employer meets this burden,"the presumption 'drops out of the
picture'" and the plaintiff must demonstrate that the employer's explanation is pretextual. Id.
(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,511 (1993)).
To establish a primafacie case of discrimination, the plaintiff must show that:(1)she is

a member of a protected class;(2)she is qualified for the position;(3)she has suffered an
adverse employment action; and (4)the circumstances give rise to an inference of

discrimination. See McDonnell Douglas Corp.,411 U.S. at 802-04(1973); Littlejohn, 795 F.3d
at 307. The defendant does not dispute that the plaintiff, an African-American woman, is a

member of a protected class. Nor does the defendant deny that the plaintiff was qualified for
her position, or that she suffered an adverse employment action when she was terminated. The

only disputed issue is whether the defendant fired the plaintiff under circumstances giving rise
to an inference of discrimination.

The plaintiff has not established an inference of discrimination. She cites no evidence,

and indeed does not claim, that anyone in a supervisory position disparaged her because of her

race or made any racially charged statements about her or in her presence. In fact, the plaintiff

cites only one incident: that in 2016,two years before the altercation that led to the plaintiffs
termination, Ms. Acevedo called her a "fat black bitch." (ECF No.6 at 7.) That statement,
while certainly inappropriate and upsetting, does not raise a plausible inference that the
defendant fired the plaintiff because of her membership in a protected class. Rather, that
comment,far removed in time and made by a coworker with no authority over the plaintiff, is

the kind of"stray remark" that courts have found insufficient to constitute employment
discrimination. Danzer v. Norden Sys.^ 151 F.3d 50,56(2d Cir. 1998). See also Jowers v.
Family Dollar Stores, Inc., No.09-CV-2620,2010 WL 3528978, at *1 (S.D.N.Y. Aug. 16,
2010), qffd., 455 F. App'x 100(2d Cir. 2012)(noting that the single statement that "black

people are lazy and incompetent" one month before the plaintiffs termination was a stray
remark insufficient to establish an inference of discrimination on its own); Maqsood v. Bell
Sec., Inc., 249 F. App'x 229, 230(2d Cir. 2007)(summary order)(holding that sporadic
comments made two years before the plaintiffs termination did not support a claim under Title
VII for discrimination); Rosenfeld v. Hostos Cmty. Coll., No. lO-CV-3081,2013 WL 1285154,

at *5(S.D.N.Y. Mar. 29, 2013)("[S]tray remarks, without more, and with no nexus to the

adverse employment action in this case,[do] not support... an inference" of discrimination).®
Because the plaintiff has not established a primafacie case, it is unnecessary to
undertake the burden shifting analysis. Nevertheless, even if the plaintiff had made out a prima
facie case, the defendant provides legitimate reasons for its decision to terminate her. As the
recording makes clear, the plaintiff cursed at and threatened Ms. Acevedo for almost a half

hour. She called her, among other things, an "idiot," a "stupid bitch," and a "dumb ass." The
plaintiff also threatened that if Ms. Acevedo said "something else ... it's going to get real
fucking ugly in here. Real fucking ugly ...fucking asshole. Say something else to me." The
plaintiff carried on this way in front of other employees and guests. This behavior was
legitimate grounds for termination; it violated the hotel's standards of conduct policies on
workplace violence, anti-discrimination, unwelcome harassment and retaliation. Howell v.

® The plaintiff also makes general claims that the defendant treated her and Ms. Acevedo differently
because Ms. Acevedo was Hispanic and the plaintiff is black, but there is no evidence of discriminatory
treatment in the record.

Montefiore Med. Ctr., 2016 WL 880373, at *6(S.D.N.Y. Feb. 16, 2016), affd, 675 F. App'x 74
(2d Cir. 2017)(holding that the employer's determination that the plaintiff had violated the
employer's policies constituted a legitimate reason to fire the plaintiff). Significantly, too, the

defendant did not fire the plaintiff on the spot, despite the recorded evidence. It was only after a
review by the hotel and then a determination by an impartial arbitrator that the plaintiff violated
the hotel's policies that the defendant terminated the plaintiffs employment. Under these

circumstances, a reasonable juror could conclude that the defendant fired the plaintiff because
she violated the defendant's workplace policies. Thus, the defendant has met its burden to

articulate a legitimate reason for termination.^
Accordingly, the plaintiffs discrimination claim under Title VII is dismissed.
II.

Retaliation

The plaintiffs Title VII retaliation claim is dismissed because she has not shown a
causal connection between her participation in a protected activity and her termination. The
McDonnell Douglas burden-shifting framework also governs retaliation claims. Bowen-Hooks,
13 F. Supp. 3d at 220(citing Fincher Deposit. Trust & Clearing Corp.,604 F.3d 712, 720(2d
Cir. 2010)("Retaliation claims made under 42 U.S.C. § 1981, like those made under Title VII,

are evaluated using a three-step burden-shifting analysis."). A primafacie case of retaliation
requires(1)the plaintiffs participation in a protected activity known to the defendant;(2)an
adverse employment action; and (3)a causal connection between the protected activity and the
adverse employment action. Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C.,
716 F.3d 10, 14(2d Cir. 2013)(quoting Lore v. City ofSyracuse,670 F.3d 127, 157(2d Cir.

2012)). Since there was no dispute that the plaintiff was terminated, the plaintiff must establish

The plaintiff does not cite any evidence to support a claim of pretext.
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that she participated in a protected activity, and that there was a causal connection between this
protected activity and her termination.
The plaintiff claims that the defendant fired her because she testified in an unrelated

discrimination case against the hotel in 2015, and because she filed a complaint against Ms.

Acevedo in 2016 for racial discrimination. (ECF No.6 at 7-8.) While testifying in a
proceeding or hearing pursuant to Title VII,see 42 U.S.C. § 2000e-3(a), and filing a complaint
with human resources are both protected activities, see Sumner v. United States Postal Serv.,

899 F.2d 203,209(2d Cir. 1990), there is no causal connection between either activity and the
plaintiffs termination.

"To establish the causation prong of a primafacie case. Plaintiff must be able to show
that the retaliatory actions 'closely followed,' the protected activity or that there was a

'reasonably close temporal proximity' between the two." Bowen-Hooks^ 13 F. Supp. 3d at 229
(quoting Summa v. Hofstra Univ., 708 F.3d 115, 128(2d Cir. 2013)). Though there is no
"'bright line to define the outer limits beyond which a temporal relationship is too attenuated to

establish a causal relationship' between a protected activity and an allegedly retaliatory action,
courts in this circuit have typically measured that gap as a matter of months, not years." Bucalo
V. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012)(quoting Gorman-

Balms V. Cornell Coop. Extension ofSchenectady County^ 252 F.3d 545, 554(2d Cir. 2001)
(collecting cases)). While seven months is a reasonable gap,Summa,708 F.3d at 128,the
Second Circuit has held that fifteen months, Woodworth v. Shinseki, 447 F. App'x 255, 258(2d
Cir. 2011), and two years are too long, Richardson v. N.Y. State Dep't ofCorr. Serv., 180 F.3d
426,447(2d Cir. 1999){abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53(2006)).

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The plaintiff engaged in protected activity in 2015 and 2016, years before she was

terminated in 2018. The plaintiff cites no recent protected activity before her suspension and
subsequent termination. The obvious trigger for the suspension was her verbal assault on Ms.
Acevedo, which led to the investigation that culminated in her termination three months later.
As explained above, even if the plaintiff had pled a prima facie case of retaliation, the
defendant has provided a legitimate reason for terminating her. Accordingly, the plaintiffs
retaliation claim under Title VII is dismissed.
CONCLUSION

For the reasons explained above, 1 grant the defendant's motion for summary judgment
on all of the plaintiffs claims. The Clerk of Court is respectfully directed to mail a copy of this
order to the pro se plaintiff, enter Judgment in favor of the defendant and close this case.

SO ORDERED.

s/Ann M. Donnelly
ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York
June 3, 2021

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