Rasmy v. Marriott International, Inc.
Filing
95
MEMORANDUM OPINION & ORDER re: 83 MOTION for Summary Judgment Originally Filed on 8/31/17 as Document No. 80. filed by Estratue Stamatis, Sesskon Pongpanta, Tehrani Mehrani, Marriott International, Inc., Karen Doherty. For the f oregoing reasons, the Court GRANTS Defendants' motion as to all federal claims, and DECLINES to exercise supplemental jurisdiction over the remaining NYSHRL and NYCHRL claims and dismisses them without prejudice. Accordingly, the Clerk of Cour t is respectfully directed to enter judgment and close the case. This order resolves Dkt. No. 83. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 9/28/2018) (cf) Transmission to Orders and Judgments Clerk for processing.
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Gebrial Rasmy,
Plaintiff,
16-CV-4865 (AJN)
-vMEMORANDUM
OPINION & ORDER
Marriott International, Inc., d/b/a JW Marriott
Essex House Hotel, et al.,
Defendants.
ALISON J. NATHAN, United States District Judge:
Plaintiff Gebrial Rasmy brings this action against his former employer Marriott
International, Inc. d/b/a JW Marriott Essex House Hotel ("Marriott"), and his former co-workers,
Karen Doherty ("Doherty"), Stamatis Efstratiou ("Efstratiou") Mehran Tehrani ("Tehrani"), and
Sekson Pongpanta ("Pongpanta") (collectively, "Individual Defendants," or, with Marriott,
"Defendants"). 1 Rasmy asserts various claims under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, the New York State Human Rights
Law, N.Y. Exec. Law§ 290, et seq. ("NYSHRL"), and the New York City Human Rights Law,
N.Y.C. Admin. Code§§ 8-101, et seq. ("NYCHRL") centered on alleged racial, religious, and
national origin discrimination.
1
Three of the four Individual Defendants are improperly pled, per Defendants' moving papers, as "Estratue
Stamatis," "Tehrani Mehrani," and "Sesskon Pongpanta." Memorandum of Law in Support of Defendants' Motion
for Summary Judgment ("Mot."), Dkt. No. 88, at 1, n.1.
1
Defendants move for summary judgment and, for the following reasons, the Court
GRANTS Defendants' motion as to all federal claims, and DECLINES to exercise supplemental
jurisdiction over the remaining NYSHRL and NYCHRL claims.
I. Procedural Background
On June 22, 2016, Plaintiff Gebrial Rasmy, proceeding pro se at the time, filed a
complaint against Defendant Marriott International, Inc. See Dkt. No. 2. Marriott moved to
dismiss the complaint, and on February 24, 2017, the Court dismissed Plaintiffs hostile work
environment claims under city and state law for lack of subject matter jurisdiction, but otherwise
denied Marriott's motion. See generally Rasmy v. Marriott Int'!, Inc., No. 16-CV-4865 (AJN),
2017 WL 773604 (S.D.N. Y. Feb. 24, 2017). Shortly before the Court's decision on the motion
to dismiss issued, Plaintiff, now represented by counsel, moved to amend his complaint to add
the Individual Defendants and new claims under city law and 42 U.S.C. § 1981. After the
decision, and now with Defendants' consent to part of Plaintiffs proposed amendment,
Magistrate Judge Peck, to whom the matter was referred for general pretrial supervision, granted
Plaintiffs leave to amend. See Dkt. No. 58. The resulting First Amended Complaint, see Dkt.
No. 63, is operative here. On August 31, 2017, Defendants first moved for summary judgment,
but because of various filing errors, the briefing considered here was filed on October 25, 2017.
II. Factual Background2
Gebrial Rasmy, also known as Kamal, was born in Egypt and is a Coptic Christian. Pl. 's
56.1 Opp. ,r 1. Defendant Marriott manages the JW Marriott Essex House ("the Essex House"),
located at 160 Central Park South, where Plaintiff has worked as a banquet server since the
2
Except as otherwise noted, the following facts are not in dispute and are taken from Plaintiff's Opposition to
Defendants' 56.1 Statement ("PL 's 56.1 Opp."). See Dkt. No. 92.
2
1990s. Pl.'s 56.1 Opp.
,r,r 2, 7.
Efstratiou, born in Greece, Tehrani, born in Iran, and Pongpanta,
born in Thailand, also work as banquet servers at the Essex House. Pl.'s 56.1 Opp.
,r,r 4-6.
Doherty, born in the United Kingdom, is the Director of Human Resources for the Essex House.
Pl.'s 56.1 Opp.
,r 3.
At all relevant times, the banquet servers' employment was governed by a
collective bargaining agreement ("CBA") negotiated with the New York Hotel and Motel Trades
Council, AFL-CIO (the "Union"). Pl.'s 56.1 Opp. ,r 8. The banquet servers elect their own coworkers to serve as delegates to the Union; the delegates act as intermediaries between the
workers and the Union and Essex House management, but receive no additional compensation
for these duties. Pl. 's 56.1 Opp. ,r,r 9, 11-12. At all relevant times, Efstratiou and Tehrani served
as union delegates for the senior banquet servers, including Rasmy. Pl.'s 56.1 Opp. ,r 14.
A. Initial Complaints (2012-2013)
In or around September 2012, Marriott took over the management of the Essex House,
and soon after conducted training for the banquet team on the company's policies prohibiting
discrimination and harassment. Pl. 's 56.1 Opp.
,r,r 18, 20.
In late 2012, Rasmy told Doherty that
associates were abusing scheduling practices, abusing their "power," and engaging in practices
that caused Marriott to lose money. Pl.'s 56.1 Opp.
these charges. Pl.' s 56.1 Opp.
,r 26.
,r,r 24-25.
Doherty and others investigated
According to Doherty, based on her investigation, she
informed Rasmy that the concerns he raised were permitted past practices under the CBA and
would continue. ~L's 56.1 Opp.
,r 27. 3
Rasmy claims Doherty told him "I am sick and tired of
this shit, and I'm sick and tired also because of you I have to send tons of fucking documents to
[Arne Sorenson] because you have called the corporate about possible overcharging." Id.
3
According to Rasmy, in the early 1990s he reported wage theft at the Essex House to the corporate office, and
within a week his report was verified and individuals were esco1ted out of work in handcuffs. Plaintiffs Additional
Material Facts ("Pl.'s Add'l Facts"), Dkt. No. 92, 13.
3
The parties dispute the authority given to and exercised by the Union delegates.
According to Marriott, when they took over management of the Essex House, they asked the
delegates to assist in getting Marriott managers up to speed on banquet department pay practices
to ensure Marriott complied with the CBA and past practices, but that non-delegates like Rasmy
were unaware of this. Pl.'s 56.1 Opp. ,i,i 22-23. Rasmy claims that the delegates did not just help
but were given supervisory authority, including the power to send employees home, and that the
granting of such authority was made clear to him. Id. Marriott insists that delegates have no
authority to fire, hire, discipline, or otherwise exercise supervision over associates, including
Rasmy. Pl.'s 56.1 Opp. ,i 13. After Doherty's investigation, Rasmy remained unhappy that
Tehrani, one of the delegates, was "abusing his 'power."' Pl. 's 56.1 Opp. ,i 29. Defendants claim
Rasmy got into an altercation with Tehrani on June 5, 2013, and an eyewitness stated that "it
looked like there was a risk of escalation to physical contact." Pl. 's 56.1 Opp. ,i,i 30-31. Rasmy
denies this. Id.
Shortly after this "dispute," Rasmy attended a grievance meeting with the Union
regarding an unrelated altercation that occurred the same day, at which meeting Rasmy publicly
accused the delegates of overcharging the Essex House and of wage theft. Pl.' s 56.1 Opp. ,i,i 3233. One month later, Rasmy raised the same theft complaints to Doherty again. Pl.'s 56.1 Opp. ,i
36. Doherty gave Rasmy the contact information for Marriott's Business Integrity Line, and
continued an investigation into the "dispute" between Rasmy and Tehrani. Pl.' s 56.1 Opp. ,i,i 3 738. In September 2013, Rasmy and others told Doherty that they heard Efstratiou tell Tehrani to
"send the old man home," referring to an older banquet server, and although Man-iott's
investigation could not substantiate the allegation, Doherty reminded Efstratiou that such
language was improper. Pl.'s 56.1 Opp. ,i,i 39-41. In October 2013, Rasmy delivered a letter to
4
management reiterating his belief that Tehrani should not be making changes to the service
diagrams. Pl. 's 56.1 Opp. ,i 42.
According to Marriott, in October 2013, the company "reinforced" its Policy Prohibiting
Harassment and Unprofessional Conduct to the entire banquet staff, including holding a special
training meeting on or about October 25, 2013. Pl.'s 56.1 Opp. ,i,i 44-50. Rasmy disputes that
this meeting occurred, but does not dispute that he received the anti-harassment policy from
Doherty and acknowledged receipt by signing the document. Pl.'s 56.1 Opp. ,i 48. One week
later, Marriott claims it delivered a PowerPoint presentation and discussed the behavior standard
with the entire banquet staff, at which presentation Rasmy publicly accused Efstratiou and
Tehrani of manipulating schedules and engaging in wage theft, charges which management
answered. Pl.'s 56.1 Opp. ,i,i 51-56. Plaintiff denies having participated in this meeting. Id.
In November 2013, Rasmy called the Business Integrity Line, and Area Director of
Associate Relations Sue Birnie investigated Rasmy' s renewed allegations of wage theft,
concluding that they were unfounded. Pl.'s 56.1 Opp. ,i,i 59-61. Additionally, Rasmy
approached Doherty with allegations that Efstratiou and Tehrani called him a "rat," although
Rasmy alleges that he reported broader on-going discrimination in the workplace, and not just
the one epithet. Pl. 's 56.1 Opp. ,i 62. Doherty conducted an investigation, which Plaintiff claims
was lackluster and ineffective, and could not substantiate the allegations; nonetheless she claims
to have warned Efstratiou and Tehrani that such behavior was prohibited by company policy.
Pl. 's 56.1 Opp. iii! 63-64.
B. Further Investigations and Alleged Altercations (2014-2016)
In or about May 2014, Rasmy called the Business Integrity Line again and Birnie again
investigated and found no wrongdoing by the delegates. Pl.'s 56.1 Opp. ,i,i 65-66. That summer,
5
Doherty investigated a claim Efstratiou asserted against Rasmy, namely that Rasmy allegedly
threatened him. Pl.'s 56.1 Opp. ii 67. During her investigation, Rasmy told Doherty for the first
time that Efstratiou had called him "fucking Egyptian," "camel," and "mummy," although
Rasmy claims Doherty knew or should have known of the on-going harassment well before late
2014. Pl.'s 56.1 Opp. ii 68. Rasmy never reported being physically threatened by the small
Efstratiou, and Doherty, who was unable to substantiate Rasmy's claims, nonetheless warned the
delegates that name-calling would not be tolerated. Pl. 's 56.1 Opp.
iiii 69-71.
In January 2016, Rasmy drove to Marriott's corporate headquarters in Maryland and
spoke with Keith Wallace, Senior Director of Global Investigations, about his allegations of
wage theft. Pl.'s 56.1 Opp. ii 72. Rasmy also claims he made allegations of harassment and
retaliation to Wallace that Wallace did not investigate. Pl.'s 56.1 Opp.
iiii 72-73. Wallace
investigated Rasmy's wage theft claims and was unable to substantiate them. Pl.'s 56.1 Opp.
iiii
73-74.
On May 9, 2016, Rasmy and Pongpanta worked at an event together, and near the end of
the night, a dispute arose between them in the hallway between the restaurant and the kitchen.
Pl.'s 56.1 Opp.
iiii 75-76. According to Marriott, the surveillance cameras point into the
restaurant and kitchen and did not capture footage of the hallway, although Rasmy disputes this
fact. Pl.' s 56.1 Opp.
iiii 77-78. Marriott promptly investigated the incident; Pongpanta reported
that Rasmy tried to strike him with a wooden board, called him a "piece of shit," threatened to
take him "outside," took a swing at him, and spat in his face and Rasmy reported that Pongpanta
spat in his face and told Rasmy that he was going to get his gun and "finish" Rasmy. Pl.' s 56.1
Opp. iiii 79-80. The primary eyewitness to the altercation told Marriott that Rasmy was
"speaking profanity to" Pongpanta and "verbally harassing" him "in a violent angry manner."
6
Pl.'s 56.1 Opp. ,i 81. Rasmy claims that Pongpanta yelled at him "You got no fucking witnesses.
I got witnesses," Pl.'s 56.1 Opp. ,i 81, and the eyewitness claims Rasmy became "very
aggressive" toward the eyewitness, approached him "in an intimidating manner and stated, 'Are
you going to be witness for him now?"' Pl.' s 56.1 Opp. ,i,i 81-82. Rasmy and Pongpanta filed
reports against each other with the local police precinct. Pl.'s 56.1 Opp. ,i 83.
On May 14, 2016, Marriott suspended Rasmy and Pongpanta pending further
investigation. Pl.'s 56.1 Opp. ,i 84. After the suspensions were implemented, Marriott received
letters from Rasmy's peers raising past instances of unprofessional conduct. Pl.'s 56.1 Opp. ,i 86.
Plaintiff disputes the specific instances and suggests that these coworkers were coerced or
threatened into signing petitions against him, but does not dispute the letters' existence.
C. Plaintifr s Termination
Marriott terminated both Rasmy and Pongpanta for the May 9 incident, effective May 24,
2016. Pl.'s 56.1 Opp. ,i 87. Both Rasmy and Pongpanta were treated the same, and the decision
to terminate them, while recommended by Doherty, was made by the business leaders. Pl.'s 56.1
Opp. ,i,i 88-89. Pongpanta filed a grievance through the Union and Marriott refused to reinstate
Pongpanta at the first-step grievance meeting nor at the second-step grievance mediation. Pl. 's
56.1 Opp. ,i,i 90-92. When mediation was unsuccessful, the Union pursued arbitration over
Pongpanta's termination. Pl. 's 56.1 Opp. ,i 93. Rasmy failed to appear at the arbitration despite
service of a subpoena, and over Marriott's objections, and due largely to Rasmy's absence, the
arbitrator ordered Pongpanta's reinstatement. Pl. 's 56.1 Opp. ,i 94. Rasmy never filed a
grievance through the Union and instead filed this lawsuit on June 22, 2016. Pl.'s 56.1 Opp. ,i,i
96-97.
III. Legal Standard
7
Summary judgment shall be granted "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). The court must "construe the facts in the light most favorable to the non-moving party
and resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v.
Bank ofAm. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal quotation marks and alterations
omitted). If the court determines that "the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial" and summary
judgment should be granted to the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574,587 (1986) (internal quotation marks and citation omitted).
It is the initial burden of the movant to present evidence on each material element of its
claim or defense and demonstrate that it is entitled to relief as a matter oflaw. Vt. Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241,244 (2d Cir. 2004). However, when the burden of
proof at trial would fall on the non-moving party, the moving party may meet its burden by
"point[ing] to a lack of evidence ... on an essential element" of the non-moving party's
claim. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199,204 (2d Cir. 2009). There is a
genuine issue of material fact if a reasonable jury could decide in the non-moving party's
favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000). The court "is not to
weigh the evidence but is instead required to view the evidence in the light most favorable to the
party opposing summary judgment, to draw all reasonable inferences in favor of that party, and
to eschew credibility assessments." Amnesty Am. v. Town of W Hartford, 361 F.3d 113, 122 (2d
Cir. 2004) (internal quotation marks omitted); accord Anderson v. Liberty Lobby Inc., 477 U.S.
242 (1986).
8
To survive a summary judgment motion, the non-moving party "must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli
Lilly & Co., 654 F.3d 347,358 (2d Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)). In doing so, the non-moving party ' "must do more than simply show that there is
some metaphysical doubt as to the material facts' and 'may not rely on conclusory allegations or
unsubstantiated speculation.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); FDIC v. Great Am. Ins. Co., 607 F.3d 288,292 (2d Cir. 2010)).
Although "direct evidence of discriminatory intent is rare and such intent often must be
inferred from circumstantial evidence found in affidavits and depositions[, n]onetheless,
summary judgment remains available for the dismissal of discrimination claims in cases lacking
genuine issues of material fact." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,603 (2d
Cir. 2006) (citations omitted); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,466
(2d Cir. 2001) (It is "beyond cavil that summary judgment may be appropriate even in the factintensive context of discrimination cases.").
IV. Discussion
A. Plaintiff's Religious, National Origin, and Race Discrimination Claims
Plaintiff alleges religious, national origin, and racial discrimination against all
Defendants. As an initial matter, "[m]ost of the core substantive standards that apply to claims
of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination
in employment in violation of§ 1981." Patterson v. Cty. of Oneida, NY., 375 F.3d 206,225 (2d
Cir. 2004). The differences that do exist are inapplicable here, except that the individual
Defendants cannot be held liable under Title VII. Id. at 225-227 (explaining the differences).
9
Under Title VII, to withstand a motion for summary judgment, a discrimination plaintiff
must satisfy the burden-shifting analysis set forth in McDonnell Douglas. McPherson v. NY
City Dep't of Educ., 457 F.3d 211,215 (2d Cir. 2006) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). A plaintiff first bears the minimal burden of establishing aprima
facie case of discrimination. If he is so able, he is then aided by a presumption of discrimination
unless the defendant proffers a "legitimate, nondiscriminatory reason" for the adverse
employment action, in which event the presumption disappears and the plaintiff bears the greater
burden of proving that the employer's proffered reason was mere pretext for discrimination. Id.
To establish a prima facie case of discrimination, Plaintiff must show that (1) he is a
member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) that action occurred under circumstances giving rise to an inference
of discriminatory intent. McDonnell Douglas, 411 U.S. at 802. Defendants offer no challenge to
Plaintiffs ability to satisfy the first three elements and instead focus on the fourth element. See
Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Opp."),
Dkt. No. 93, at 3-6.
1. Plaintiff Fails To Establish a Prima Facie Case of Discrimination
While the burden of making the prima facie showing of discrimination is de minimis, see
Joseph v. Leavitt, 465 F .3d 87 (2d Cir. 2006), Plaintiff has pointed to no facts suggesting that
adverse employment actions taken against him - namely, his termination- were at all related to
his religious practice as a Coptic Christian, or his Egyptian background. Circumstances
contributing to an inference of discrimination may include invidious comments about people in
the protected class, or more favorable treatment of employees outside of the protected class. See
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). Accordingly, Plaintiff
10
may satisfy his burden on the fourth element of the prim a facie test by showing that he was
"similarly situated in all material respects" to other individuals against whom he would have the
court compare him. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997).
As the undisputed facts demonstrate, following the May 9, 2016 altercation between
Plaintiff and Mr. Pongpanta, both men were suspended and later terminated. While Pongpanta
was later reinstated by the ruling of an arbitrator - over Marriott's objections - both men were
treated identically. Mr. Pongpanta is neither Christian nor Egyptian. In cases in which multiple
employees are terminated for the same infraction, courts generally find that the plaintiff has
failed to meet the fourth element - that circumstances give rise to an inference of discriminatory
intent. See, e.g., Morales v. Rooney, No. 06-CV-1556 (RNC), 2010 WL 11469915, at *8 (D.
Conn. Mar. 31, 2010) (no primafacie discrimination because similarly situated fire inspectors
also terminated because of same misconduct); Randolph v. CIBC World Mkts., No. 0l-CV-11589
(RWS), 2005 WL 704804, at *13 (S.D.N.Y. Mar. 29, 2005) (noprimafacie case since similarly
situated employees fired for violation of same policy). Plaintiff provides no evidence that
supports a finding that other similarly situated employees outside his protected class received
more favorable treatment.
Additionally, Plaintiff presents no direct evidence supporting an inference of
discrimination related to his termination. Rasmy claims that Doherty complained that his
repeated allegations of wage theft created more work for her, but no reasonable juror could find
that this suggests Doherty harbored an animus against Egyptians or Coptic Christians. Cf
Clemente v. NY State Div. ofParole, 684 F. Supp. 2d 366,374 (S.D.N.Y. 2010) (while
"evidence of anti-union animus permeates the record," no evidence suggesting union leader
plaintiff treated differently because she was Hispanic). In his opposition to summary judgment,
11
Plaintiff recounts allegations that Doherty accused him of attempted murder and refused to show
Rasmy footage of the incident she claimed was captured on camera and concludes that this
alleged harassment "can only logically be attributable to discriminatory animus," but accepting
Plaintiffs version of events as true, no reasonable jury could find that the allegations support a
reasonable inference of discrimination.
Plaintiff does allege that co-workers Pongpanta and Efstratiou made comments to
Plaintiff relating to his national origin and religion, but Plaintiff offers no evidence - disputed or
undisputed - connecting the comments to his termination. Even accepting Plaintiffs argument
that union delegates like Efstratiou had supervisory authority over Plaintiff, "where a supervisor
has no input into a termination decision, that supervisor's beliefs, actions, and statements do not
give rise to a discrimination claim." Stevens v. New York, No. 09-CV-5237 (CM), 2011 WL
3055370, at *6 (S.D.N.Y. July 20, 2011).
In short, Plaintiff proffers no evidence - either of discriminatory animus on the part of
someone involved in his termination or of a comparative nature showing disparate treatment that supports an inference of discriminatory intent. Accordingly, his discrimination claim fails as
a matter of law.
2. Even If Plaintiff Had Established a Prima Facie Case of Discrimination,
He Fails To Rebut Marriott's Non-Discriminatory Reasons as Pretextual
Even assuming that Plaintiff had established a prima facie case of discrimination,
however, his claim would still fail as a matter of law. After a plaintiff demonstrates a prima
facie case of discrimination, the burden shifts to the defendants to "articulate some legitimate,
nondiscriminatory reason for its action," although it "need not persuade the court that it was
actually motivated by the proffered reason." Delaney, 766 F.3d at 168 (internal quotation marks
12
omitted). If the defendant makes this showing, the presumption of discrimination is rebutted,
and the burden shifts back to the plaintiff to show "that a reasonable jury could conclude that the
employer's determination was in fact the result of discrimination." Ghent v. Moore, 324 F.
App'x 55, 56 (2d Cir. 2009) (citing Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008)).
At this step, the court considers evidence including "the strength of the plaintiffs prima facie
case," as well as "the probative value of the proof that the employer's explanation is false, and
any other evidence that supports [or undermines] the employer's case." James v. New York
Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 149-50 (2000)) (internal quotation marks omitted; alterations in original).
Plaintiffs claim fails because he cannot provide sufficient evidence to support a finding by a
reasonable jury that Marriott's proffered non-discriminatory reasons for his termination were
pretext for discrimination.
Marriott has met its burden of production in presenting a legitimate, nondiscriminatory
reason for Plaintiffs termination. Marriott claims that Plaintiff was terminated based on its
investigation of the May 9 incident, during which Rasmy was alleged to have threatened
Pongpanta with violence and spit in his face. PL' s 56.1 Opp.
,r,r 79-80.
Regardless of the truth of
what actually occurred between the men, it is undisputed that the primary eyewitness to the
altercation at least partially supported Pongpanta' s allegations. Id. ,i 81. And the altercation is
undoubtedly a legitimate reason for discharge. See, e.g., Anderson v. Hertz Corp., 303 F. App'x
946, 947-48 (2d Cir. 2008) (deeming a physical altercation a legitimate, non-discriminatory
reason for termination); Oliveras v. Wilkins, No. 06-CV-3578 (DAB)(MHD), 2012 WL 3245494,
at *12 (S.D.N.Y. June 26, 2012), report and recommendation adopted by 2012 WL 3245493
(Aug. 3, 2012) (same).
13
However, when the burden shifts back to the Plaintiff to show that a reasonable jury
could find that the employer's proffered explanation is pretext for discrimination, he fails to meet
his burden. The Second Circuit has explained that "there are two distinct ways for a plaintiff to
prevail - either by providing that a discriminatory motive, more likely than not, motivated the
defendants or by proving that the reasons given by the defendants are not true and that
discrimination is the real reason for the actions." Gordon v. NY. City Bd. of Educ., 232 F.3d 111,
117 (2d Cir. 2000) (internal quotation marks omitted). Rasmy must offer "not simply some
evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than not
discrimination was the real reason for the employment action." Weinstock v. Columbia Univ.,
224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks and alterations omitted).
Plaintiff has not provided sufficient evidence to support a rational finding of pretext by a
reasonable jury. In opposing summary judgment on his discrimination claims, Plaintiff simply
states in a conclusory manner that he "has put forth sufficient evidence that would allow the jury
to determine whether Defendants acted with discriminatory animus when terminating Plaintiffs
employment." Opp. at 22. He adds a few more details in opposing summary judgment with
respect to his retaliation claims, elaborating that Marriott's proffered reason for termination is
pretextual because: "(1) Defendants' proffered reason did not happen; (2) Defendants suspended
and terminated Plaintiff because Plaintiff opposed Pongpanta's unlawful behavior; (3)
Defendants have proved to be inconsistent and arbitrary when doling out discipline for similar
offenses and; (4) Defendants refused to investigate or take disciplinary action when Plaintiff
complained, yet were more than willing to haphazardly investigate, suspend, and terminate
Plaintiff." Opp. at 16 (emphasis in original). Nonetheless, despite the addition of a few scant
14
details, for substantially the same reasons Rasmy failed to establish his prima facie case of
discrimination, Rasmy has also not offered sufficient evidence to support a rational finding of
pretext.
Specifically, Rasmy invites the inference that because, in his telling, he was not the
aggressor in the altercation and then was suspended prior to Marriott conducting a "meaningful
investigation," that this course of events suggests a pretextual reason for termination. Opp. at 1617. However, Rasmy does not specify how Marriott's investigation was insufficient, and the
record reflects that Marriott reviewed the incident reports both Pongpanta and Rasmy provided,
reviewed available video surveillance, 4 interviewed Pongpanta, Rasmy, and the eyewitness,
reviewed the eyewitness's written statement, and interviewed an additional potential witness. See
Reply at 3-4 (detailing the steps taken). Plaintiff has not explained how this investigation was
deficient or a departure from the business's normal protocol such that it might support an
inference of discriminatory animus. Plaintiff also asserts that Doherty attempted "to dissuade
Plaintiff from reporting discrimination." Opp. at 15. But that allegation suggests a retaliatory
motive, not a discriminatory motive.
In sum, even drawing all inferences in Rasmy's favor, no reasonable jury could conclude
that Marriott acted with discriminatory animus in suspending and terminating Rasmy after the
altercation. "A plaintiffs self-serving statement, without direct or circumstantial evidence to
support the charge, is .. .insufficient." Risco v. McHugh, 868 F. Supp. 2d 75, 99 (S.D.N.Y. 2012).
4
Mr. Rasmy offers no proof that Marriott has additional video they have refused to provide him. The non-moving
party' "must do more than simply show that there is some metaphysical doubt as to the material facts' and 'may not
rely on conclusory allegations or unsubstantiated speculation."' Brown v. Eli Lilly & Co., 654 F.3d 347,358 (2d Cir.
2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586 (1986)).
15
For the foregoing reasons, Plaintiffs discrimination claims under Title VII and Section
1981 fail as a matter of law.
3. Plaintiff Cannot Establish Liability against the Individual Defendants for
Discrimination Either
To establish individual liability under§ 1981, a plaintiff must demonstrate "some
affirmative link to causally connect the actor with the discriminatory action." Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (internal quotation marks and
citation omitted). As noted above, Rasmy has alleged that his fellow banquet servers made
discriminatory remarks, but has failed to demonstrate how any of them were involved in his
termination. With respect to Doherty, even if she was involved in terminating Plaintiff, as stated
above, Plaintiff has not connected her to any discriminatory comments or actions. Accordingly,
Plaintiff cannot establish individual liability under § 1981.
B. Plaintifrs Retaliation Claim
As with the disparate treatment claims addressed above, federal retaliation claims are
reviewed under the familiar burden-shifting approach of McDonnell Douglas. See Zann Kwan v.
Andalex Grp., LLC, 737 F.3d 834, 843 (2d Cir. 2013).
In order to establish a prima facie case of retaliation, an employee must show (1)
participation in a protected activity known to the defendant; (2) an employment action
disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the
adverse employment action. Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (internal
quotation marks and citation omitted). The plaintiffs burden of proof as to this first step "has
been characterized as 'minimal' and 'de minimis."' Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 173 (2d Cir. 2005) (citations omitted).
16
As an initial matter, it is important to clarify that Plaintiffs wage theft complaints are not
a "protected activity" as contemplated by Title VIL See, e.g., Kamrowski v. Morrison Mgmt.
Specialist, No. 05-CV-9234 (KMK), 2010 WL 3932354, at *20 (S.D.N.Y. Sept. 29, 2010)
("Title VII does not protected employees from retaliation for opposing misbehavior of coworkers or supervisors that is umelated to discrimination on account of one of the protected
classes."); Santucci v. Veneman, No. 0l-CV-6644 (CBM), 2002 WL 3125515, at *3 (S.D.N.Y.
Oct. 8, 2002) (collecting cases for the same proposition). Accordingly, in considering whether
Plaintiff can establish the third prong of the prima facie test, the question is whether his
complaints to Doherty and Marriott about discrimination are causally connected to his
termination.
It is on this third prong that Plaintiffs claim fails, as no reasonable jury could find that
Plaintiff was terminated because he had complained of discrimination. To demonstrate this
causal link, the "plaintiff must plausibly allege that the retaliation was a 'but-for' cause of the
employer's adverse action." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir.
2015) (citing Univ. ofTex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). That is, Rasmy
would have to show that "the adverse action would not have occurred in the absence of the
retaliatory motive." Id. at 91.
Plaintiff relies heavily on the liberal standards at play, noting that "[t]he determination of
whether retaliation was a 'but-for' cause, rather than just a motivating factor, is particularly
poorly suited to disposition by summary judgment, because it requires weighing of disputed
facts, rather than a determination that there is no genuine dispute as to any material fact." Opp. at
12 (quoting Zann Kwan, 737 F.3d at 846 n.5). However, Plaintiff carries the burden of
establishing his prima facie case. Plaintiff has no direct evidence - disputed or undisputed -
17
suggesting that his termination was related to his complaints of discrimination. He seems to
suggest that there is circumstantial evidence of discrimination, pointing to Doherty' s alleged
statement to him that Plaintiff "better keep [his] fucking mouth shut if [he] want[ s] to keep [his]
job here," but offers no reason to believe Doherty's reaction related to his complaints of
discrimination rather than his reports of alleged wage theft. In general, plaintiffs may also plead
a causal connection by showing temporal proximity - that the protected activity was followed
closely in time by adverse employment action. See Vega, 801 F.3d at 90-91; Zann Kwan, 737
F.3d at 846. However, in this case, Plaintiff alleges to have complained about discrimination for
years prior to his termination, and the last complaint he raised- in January 2016 - is five months
prior to his termination. On the basis of this undisputed timeline of events, no reasonable juror
could find that Marriott would not have terminated Rasmy but for his complaints of
discrimination.
As detailed above, even if Plaintiff were able to establish a prima facie case of retaliation,
Defendants have proffered a legitimate explanation for Plaintiffs termination - that it was a
result of an investigation into reports of a physical altercation between him and Pongpanta - and
no reasonable jury could conclude that Defendants' stated reason is mere pretext for retaliatory
motives linked to his protected activities. As Plaintiff states in his brief, "[a] plaintiff may prove
that retaliation was a but-for cause of an adverse employment action by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered
legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror
could conclude that the explanations were a pretext for a prohibited reason." Opp. at 13-14
(quoting Zann Kwan, 737 F.3d at 846-47). However, Plaintiff has not offered sufficient evidence
that would allow a reasonable juror to make a rational finding of pretext. The statements he
18
points to as suggesting retaliatory motive, such as Doherty's alleged comment that Plaintiff
"better keep [his] fucking mouth shut if [he] want[s] to keep [his] job here," do not connect to
any discriminatory animus linked to any protected status, and Plaintiffs conclusory statement
that "Defendants' haphazard, inconsistent, and disparate investigation methods indicate" pretext
is not based on any evidence in the record. Opp. at 17. Plaintiffs sole citation supporting this
contention references Plaintiffs allegation that in 2013 Doherty falsely accused Rasmy of having
grabbed Efstratiou and attempted to throw him onto a slicing machine. See Opp. at 17 (citing
Pl.'s Add'l Facts il 12). But even making all available inferences in the Plaintiffs favor, no
reasonable jury would conclude that this allegation dating to 2013 supports the argument that the
stated reasons for his termination three years later were pretextual.
In sum, Defendants are entitled to summary judgment on Plaintiffs retaliation claim as a
matter of law.
C. Hostile Work Environment Claim
1. Defendants Are Entitled to Summary Judgment under Federal Law
In order to survive summary judgment on a federal hostile work environment claim, !l.
plaintiff must produce evidence that "the workplace was permeated with discriminatory
intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions
of the victim's employment." Patterson, 375 F.3d at 227 (alterations and internal quotation
marks omitted). The test has "objective and subjective elements: the misconduct must be 'severe
or pervasive enough to create an objectively hostile or abusive work environment,' and the
victim must also subjectively perceive that environment to be abusive." Alfano v. Costello, 294
F.3d 365,374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "A
hostile working environment is shown when the incidents of harassment occur either in concert
19
or with regularity that can reasonably be termed pervasive," Fincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010) (citation omitted), or through evidence of "a
single incident of harassment that is 'extraordinarily severe."' Id. (citations omitted). Whether a
reasonable person would find a given work environment hostile depends on the "totality of the
circumstances," consideration of which includes factors such as "the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with [the] employee's work
performance." Harris, 510 U.S. at 23.
The harassment Rasmy alleges does not establish a hostile work environment under Title
VII as a matter of law. Plaintiff argues that whether the comments he alleges "were severe and
pervasive and/or above a petty slight or trial inconvenience .. .is a question of fact for a jury."
Opp. at 10. This is not the case. Courts are regularly tasked with reviewing the totality of the
circumstances to determine whether Plaintiff has met the elements required to establish a federal
work environment claim, including whether the misconduct is "severe or pervasive enough to
create an objectively hostile or abusive work environment." See McGullam v. Cedar Graphics,
Inc., 609 F.3d 70, 79 (2d Cir. 2010) (internal quotation marks and citation omitted).
Rasmy's subjective perception notwithstanding, his allegations are insufficient to meet
the objective element. First, comments made about Rasmy being a "rat" do not relate to his
membership in any protected class, and so are not relevant to Plaintiffs hostile work
environment claim. See, e.g., Bright v. Coca Cola Refreshments USA, Inc., No. 12-CV-234
(BMC), 2014 WL 5587349, at *9 (E.D.N.Y. Nov. 3, 2014) (threat without indication it was
motivated by a discriminatory animus does not raise a material issue of fact on plaintiffs hostile
work environment claim), ajf'd 639 F. App'x 6 (2d Cir. 2015); Nolley v. Swiss Reins. Am. Corp.,
20
857 F. Supp. 2d 441,456 (S.D.N.Y. 2012). Similarly, Plaintiffs allegations about Doherty's
threatening behavior are not alleged to relate to Rasmy' s status as a Christian or Egyptian.
Plaintiff alleges that Doherty accused him of attempted murder but then refused to show Rasmy
video footage she claims showed the incident. Id. at 8. However, Plaintiffs claim that the
Doherty's alleged behavior "can only logically be attributable to discriminatory animus" is
entirely speculative and unsupported by any evidence in the record. See, e.g., Nieblas-Love v.
NY.C. Haus. Auth., 165 F. Supp. 3d 51, 68 (S.D.N.Y. 2016) (rejecting Plaintiffs bare
speculation linking behavior to discriminatory motive as insufficient to defeat a motion for
summary judgment); accord Boise v. New York Univ., No. 03-CV-5862 (RWS), 2005 WL
2899853, at *4 (S.D.N.Y. Nov. 3, 2005) ("Personal speculation is insufficient as a matter oflaw
to raise an inference of discrimination.").
Second, Plaintiffs religious discrimination claim is based upon allegations that Efstratiou
made offensive remarks not directed at Plaintiff. Plaintiff writes in his opposition brief that
Efstratiou would tell Plaintiff, who he knew to be a devout Christian, that "God is garbage" and
"Religions [are] for the stupid people," but in his deposition Plaintiff does not allege that
Efstratiou said any of these statements to him. 5 See Tr. 400:12-19 ("He believe that the idea of
God is garbage. Religions [are] for the stupid people."). While discriminatory behavior not
directed at the plaintiff can still contribute to the creation of an overall hostile work environment,
see Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000), general anti-religion statements
5
Moreover, the coworker who is alleged to have said derogatory things about Christians, Efstratiou, is himself
Christian. While people can discriminate against members of their own group, see Oncale v. Sundowner Off.shore
Servs., Inc., 523 U.S. 75, 78 (1998), the shared identity may be seen to undermine inferences of discriminatory
animus. See, e.g., Olorode v. Streamingedge, Inc., No. l 1-CV-6934 (GBD)(AJP), 2014 WL 1689039, at *16
(S.D.N.Y. Apr. 29, 2014), report and recommendation adopted by 2014 WL 3974581 (Aug. 13, 2014); Drummond
v. !PC Int'!, Inc., 400 F. Supp. 2d 521,532 (E.D.N.Y. 2005).
21
of this nature not directed at the plaintiff personally are "stray remarks at best." See Velez v. SES
Operating Corp., 07-CV-10946 (DLC), 2009 WL 3817461, at *11 (S.D.N.Y. Nov. 12, 2009)
(noting that a discriminatory comment overheard by plaintiff is best characterized as a "stray
remark" that is not probative of a discriminatory motive); Green v. Harris Puhl 'ns, Inc., 331 F.
Supp. 2d 180, 192 (S.D.N.Y. 2004) (granting summary judgment on the hostile work
environment claim and finding that two racially discriminatory comments overheard by the
plaintiff "were stray remarks at best"). There are no facts in the record to support the inference
that Plaintiff was personally targeted by any anti-Christian animus, nor that he experienced
anything more than a petty slight in his work environment regarding his religious practice.
Third, Plaintiff alleges numerous comments made by Efstratiou and Pongpanta about his
national origin - such as "Egyptian mother fuck," "mummy mother fucker" - and, while
unsupported by the record, Plaintiff contends in his opposition brief that these comments were an
"almost daily part of Plaintiffs work-life." Opp. at 6. In his deposition, Plaintiff stated that
Efstratiou "used to refer to me while I'm passing by him, He's a fucking Egyptian rat. He's a
fucking mummy. Where's the fucking mummy? Is this his table? All kinds of things. And that
went on and on and on and on." Pl.'s Add'l Facts ,r 5 (citing Rasmy Tr. 399:17-400:19). Rasmy
also alleged that Pongpanta said "Here is the Egyptian mother fuck," or "He's a mummy mother
fucker." Id. (citing Rasmy Tr. 193:6-10). For reasons explained below, this evidence is
insufficient to establish liability under federal law.
Fourth and finally, Plaintiff points to other incidents or statements he argues are part of
the pattern of discriminatory behavior. For example, Rasmy alleges that Defendants circulated
petitions against him containing false accusations of workplace improprieties in order to harass
22
him. See Pl.'s Add'l Facts ,r,r 6-7. 6 Rasmy claims that Tehrani and Pongpanta pressured his
manager, Jay Jones, to make a false claim as well, and that Jones later admitted making it up.
Opp. at 7. 7 Again, as with the "rat" -oriented comments, Plaintiff points to no evidence in the
record - disputed or undisputed - that suggests these actions were discriminatory in nature.
Moreover, to the extent that Plaintiff attempts to point to any insufficiencies in Marriott's
investigation of his claims, courts in this Circuit have been clear that a failure to remediate
cannot itself contribute to a hostile work environment claim under federal law. See Fincher v.
Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010) (collecting cases).
Accordingly, the evidence of discrimination Plaintiff offers amounts to the third category
of evidence described above: comments made by Efstratiou and Pongpanta about his Egyptian
nationality. Applying these allegations to the relevant standard, Defendants are entitled to
summary judgment under Title VII. As noted above, to survive summary judgment a plaintiff
must produce evidence of discriminatory ridicule "that was sufficiently severe or pervasive to
alter the conditions of the victim's employment." Patterson, 375 F.3d at 227 (alterations and
internal quotation marks omitted).
Here, the incidents Rasmy describes are not sufficiently "severe" as to have altered his
working conditions. In Mathirampuzha v. Potter, the Second Circuit concluded that an incident
in which the plaintiffs supervisor "grabbed the plaintiffs arm, punched him in the shoulder and
chest, spit in his face, and poked him in the eye" was "not so severe as to alter materially the
plaintiffs working conditions." 548 F.3d 70, 73, 79 (2008) (contrasting the incident with "rape"
6
Plaintiff did not provide the full section of the transcript of his own deposition that he relies upon for support, so
his self-supported claim cannot be verified by the Court.
7
Again, Plaintiff did not provide the full section of the transcript of his own deposition that he relies upon for
support, so his self-supported claim cannot be verified by the Court.
23
or an "obscene and humiliating verbal tirade that undermines the victim's authority in the
workplace"). If a physical encounter of the type alleged in Mathirampuzha was not severe
enough, then no rational jury could find that the incidents Rasmy alleges were severe enough to
have altered his working conditions. Cf Johnson v. Morrison & Foerster LLP, No. 14-CV-428
(JMF), 2015 WL 845723, at *7 (S.D.N.Y. Feb. 26, 2015) (holding that one incident where a coworker looked "aghast" when the plaintiff told her his age and "consequently made fewer
requests of him ... falls well short of being so extraordinarily severe to have altered the
conditions of his working environment" (internal quotation marks omitted)).
As for the pervasiveness of the incidents Rasmy alleges, while there is no support in the
record for his contention in his opposition brief that the comments from Efstratiou and
Pongpanta were an "almost daily part of Plaintiffs work-life," Opp. at 6, a reasonable jury might
still conclude that Plaintiffs testimony that Efstratiou "used to refer to me" using various
derogatory phrases and that the remarks "went on and on and on" suggests pervasive
discrimination. Nonetheless, the Court need not decide whether the alleged remarks amount to
"pervasive" conduct, because there is nothing in the record from which a reasonable jury could
conclude that the alleged discrimination "alter[ed] the conditions of [his] employment." Cruz,
202 F.3d at 570. As offensive as Plaintiffs coworkers' alleged statements were, when
considering the factors set forth by the Supreme Court in Harris and noted above, the record
presents a plaintiff who worked side-by-side with these coworkers for many years without
incident, has not alleged that he was ever physically threatened, and described no way in which
the comments, however degrading, interfered with his work performance.
Given the totality of circumstances, including the unmistakable inference from the timing
of the comments after years without incident that his coworkers were likely motivated by
24
personal animus in response to Plaintiffs allegations of wage theft more than any discriminatory
animus, no reasonable jury could find Plaintiffs alleged treatment so severe or pervasive that his
work conditions were altered. See, e.g., Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir.
1998) (holding that a supervisor's occasional racist remarks "fail[ed] to constitute discriminatory
behavior that is sufficiently severe or pervasive to cause a hostile environment"); De la Cruz v.
City ofNY., 783 F. Supp. 2d 622,644 (S.D.N.Y. 2011) (finding that a defendant's "stray
remarks" regarding the plaintiffs seniority and lack of physical fitness did not establish a hostile
work environment claim). Thus, Defendants are entitled to summary judgment on Plaintiffs
hostile work environment claims under Title VIL
IV. The Court Declines to Exercise Supplemental Jurisdiction over the Remaining State
and Local Law Claims
The Supreme Court has commented that "in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward
declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343,350 n.7 (1988).
The Court finds no reason to deviate from normal practice here. Because "the Court has
not yet invested resources necessary to resolve [these] claims," and because "[t]he extensive
discovery already taken is likely sufficient to enable [these] claims to be evaluated in state court
without any additional discovery," see Vuona v. Merrill Lynch & Co., Inc., 919 F. Supp. 2d 359,
393 (S.D.N.Y. 2013), the Court declines to exercise supplemental jurisdiction over Plaintiffs
NYSHRL and NYCHRL claims and thus dismisses the claims without prejudice.
V. Conclusion
25
For the foregoing reasons, the Court GRANTS Defendants' motion as to all federal
claims, and DECLINES to exercise supplemental jurisdiction over the remaining NYSHRL and
NYCHRL claims and dismisses them without prejudice. Accordingly, the Clerk of Court is
respectfully directed to enter judgment and close the case. This order resolves Dkt. No. 83.
SO ORDERED.
Dated: September_, 2018
New York, New York
United States District Judge
26
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