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MOHAMED v. MARRIOTT INTL.

October 24, 1995

AHMED MOHAMED, Plaintiff, against MARRIOTT INTERNATIONAL, INC. and MARRIOTT CORP., Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this action, originally brought under the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (Supp. V 1993), ("ADA"), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1988 & Supp. V 1993) ("Title VII"), and the New York State Human Rights Law, N.Y. Executive Law § 290 et seq. (McKinney 1993) by Plaintiff Ahmed Mohamed ("Mohamed") against Defendants Marriott International, Inc., and Marriott Corporation (collectively referred to here as "Marriott"), Marriott has moved for summary judgment under Federal Rule of Civil Procedure 56 and seeks Rule 11 sanctions against Mohamed and his attorney, Alan Rich ("Rich").

 Mohamed has cross-moved to amend his complaint, to reopen discovery, and to recover attorney's fees. Mohamed also seeks Rule 11 sanctions against Marriott's attorney Laurie Berke-Weiss ("Berke-Weiss").

 For the reasons discussed herein, Mohamed's motion to amend the complaint will be granted; Marriott's motion for summary judgment will be extended to all of the claims under Mohamed's amended complaint and will be granted in part and denied in part; Mohamed's motion for costs will be denied; and both Marriott's and Mohamed's motions for sanctions will be denied.

 Prior Proceedings

 Mohamed filed his Complaint on April 1, 1994, against Marriott International, Inc., Marriott Corporation, and Times Square Hotel Company (collectively referred to here as the "Original Defendants"). The Original Defendants answered on August 11, 1994, and amended that Answer on September 28, 1994. By stipulation of the parties, this Court ordered on December 19, 1994, that the action was to be discontinued with prejudice against Times Square Hotel Company only.

 This motion for summary judgment was filed by Defendants on May 23, 1995. Discovery took place through June 30, 1995. Mohamed filed papers opposing the motion for summary judgment and moving for leave to amend the complaint, to reopen discovery proceedings solely for the purpose of taking the deposition of Teresa Heffernan ("Heffernan"), and for attorneys' fees. Marriott replied to Mohamed's cross-motions and further supported its motion for summary judgment on July 20, 1995, and moved for Rule 11 sanctions against Mohamed and Rich.

 After further submission, oral argument was heard on August 2, 1995, and Mohamed's motion to reopen discovery proceedings with regard to Heffernan was granted. Decision on the remaining motions was reserved. Supplemental affirmations were submitted on August 18, 1995, and the motions were considered fully submitted on August 21.

 The Parties

 Mohamed was born in Egypt, came to the United States in 1985, and is now a resident of New York City. He is a profoundly deaf man who lacks the power of intelligible speech. Mohamed's primary mode of communication is American Sign Language (ASL). He can read English at a level sufficient to comprehend magazines and want advertisements in newspapers. He can write using English vocabulary and ASL grammar and syntax in a manner somewhat intelligible to English readers, particularly those accustomed to reading Mohamed's written English.

 Facts

 In deciding a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting), Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); see United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983). The facts as presented here are construed accordingly, and they are limited to this motion.

 On April 6, 1988, Mohamed began work at the Hotel as a result of an affirmative hiring program instituted by Marriott. At first he served as a steward and in the housekeeping department. In 1989, Mohamed was voluntarily transferred to the engineering department, where his jobs included wallpapering, sanding, vinyl application, and similar tasks.

 The Hotel employs approximately fifty deaf employees and receives substantial tax advantages for doing so. Marriott employed, for some time, Anna Burns ("Burns"), a qualified interpreter whose function was to intervene in situations requiring communication between Marriott's hearing-impaired employees and others at the Hotel. Since the time of Mohamed's discharge, seven Marriott employees have undertaken the study of ASL at Marriott's behest.

 Because communication among members of the engineering department was carried on largely through paging devices ("beepers") and radios, a condition of Mohamed's transfer was that he be assigned to work with a partner, who would facilitate his communication. Mohamed did not directly make use of paging devices or radios, relying instead on his partner, Pedro Coelho ("Coelho") to communicate with their manager Al Woodies ("Woodies") and with others. Woodies and Mohamed, after some time working together, established the ability to communicate to some extent via Woodies' improvised sign language.

 Mohamed generally received his work assignments each morning, when Woodies' crews would meet with him to discuss the day's work. During the course of the day, it was Woodies' practice to make rounds of the various locations at which members of his crew were at work.

 Prior to October 1, 1993, Mohamed was held in exceptionally high esteem by his supervisors at the Hotel, including the Director of Engineering, Edmund Pietzak ("Pietzak"). Mohamed had received raises every year, as well as two employee merit awards that included prizes, cash awards, and letters of commendation.

 On October 1, 1993, Mohamed was, atypically, assigned to work alone. His assignment was to sand tables and to paint the door of a cloakroom on the sixth floor of the Hotel. At approximately 8:00 A.M., Woodies escorted Mohamed to the room to show him his assignment. Between 9:30 A.M. and 10:30 A.M., Mohamed returned to the room and began work on the project.

 By approximately 11:45 A.M., Mohamed had completed painting. He left the room and extinguished the light. At some time during Mohamed's absence Norma Santos ("Santos"), a Marriott employee who worked in the cloakroom, entered the room and left her bag in the room with the door unlocked and the lights on. On returning to the room a short time later, according to Mohamed's assertions, he noticed the bag, out of which had spilled a small, clear, plastic bag, which contained four hundred eighty dollars in cash. Mohamed removed the plastic bag with the money from the floor.

 Mohamed then revisited the second floor shop, but, still not finding Woodies, returned to the cloakroom. It was Woodies' habit to make rounds of the Hotel to check on his workers throughout the day. Mohamed asserts that he expected that, since it was near lunchtime, he would see Woodies presently either at lunch or on Woodies' rounds. At no time did Mohamed attempt to page Woodies using Woodies' paging device. Mohamed did not know how to do so himself, would have been unable to hear the necessary cues, and was separated from Coelho, who would normally have paged Woodies on Mohamed's behalf. Mohamed asserts that during this time, he was attempting to find Woodies. Marriott asserts that Mohamed had no such intent.

 On leaving the cloakroom again, Mohamed crossed paths with Norma Santos, who was entering that room. Santos, on examining her bag, discovered that her money was missing and reported the loss. With the assistance of the security and human resources department, Santos identified Mohamed as the worker she had seen in the cloakroom.

 Soon thereafter, Woodies approached Mohamed but was paged immediately and walked away to the telephone without communicating with Mohamed. Woodies was then taken aside by Mike Dominguez ("Dominguez"), Marriott's Director of Loss Prevention, and Cherron Collins, a manager from the human resources department. They then approached Mohamed, whose first reaction was to sign to Collins, who understood some ASL, that he had found some money and to ask if something was wrong. Collins signed to Mohamed that she did not want to communicate with him until they had reached the security office.

 Once Mohamed, Collins, Woodies, and Dominguez had reached the security office, they were joined by Valerie Contreras, Manager of Human Resources ("Contreras"). (This October 1, 1995, meeting is referred to here as the "First Meeting".) At the First Meeting, Collins undertook both to interview Mohamed regarding the circumstances surrounding the missing money and also to interpret from ASL into English for the others present.

 Collins, who had earlier taken two night classes in ASL, with a cumulative twelve to sixteen hours of classes, was not highly proficient in ASL. She had had difficulty communicating with Mohamed on prior occasions. During the First Meeting, Collins had substantial difficulty interpreting, giving rise to confusion. Mohamed was forced to repeat himself several times. According to Mohamed, he set forth the facts as described above consistently and truthfully, noting his efforts to find Woodies to report the missing money. Collins, because of the substantial miscommunication, indicated to Woodies, Dominguez, and Contreras that Mohamed was telling several inconsistent stories. In one instance during the First Meeting, Collins indicated that Mohamed was telling three conflicting stories as to where he had found the money: first denying that he had the money, then admitting finding the money underneath the bag, and finally stating that, thinking the bag was garbage, he had picked it up and the money had fallen out. In another example of the resulting confusion, Collins, misinterpreting an ASL sign as "credit card", stated that Mohamed had admitted that he had stolen the money in order to settle his credit card bills. In fact, Mohamed, who had no credit card debt, said no such thing.

 After approximately an hour and a half, Contreras called a halt to the meeting, instructing Mohamed to go home and stating that she would call for an interpreter for a second meeting. Mohamed alleges that by the end of that First Meeting, as a result of Collins' misinterpretations, the parties present at the First Meeting became convinced that Mohamed was lying and that he had indeed stolen the money without intent to return it. In the meantime, Mohamed asserts, he, unable to hear exchanges among the others present, was unaware of the source of the confusion.

 The signatures of three people were necessary to approve the termination of Mohamed's employment: Pietzak, Contreras, and Jurgen Giesbert ("Giesbert"), the General Manager of the Hotel. Of the three, only Contreras was present at the First Meeting.

 Prior to approving the termination, at some time between October 1 and October 4, 1993, Pietzak spoke with Woodies and Dominguez, both of whom had been present at the First Meeting. Woodies and Dominguez both told Pietzak that Mohamed had stolen money, and both recommended termination. In addition, Pietzak spoke with Mark Sanders, the head of the human resources department, who had conducted similar conversations with Woodies and Dominguez. Pietzak presumed that the information with which he had been provided was accurate and conducted no further review of the matter.

 Giesbert, as general manager of the Hotel, was in the habit of approving recommendations to terminate employment without investigating further. His approval was, in effect, pro forma. In making a decision regarding Mohamed's termination, Giesbert relied on the recommendation of Pietzak and information provided by Contreras. Giesbert was unaware of the details of Mohamed's deafness, Mohamed's work habits, or the circumstances regarding the interpretation at the First Meeting.

 In formulating her decision to fire Mohamed, Contreras relied on the interpretation at the First Meeting, including additional information supplied to her by Collins and Dominguez. She was under the false impression that Mohamed was capable of speaking with others and as to the circumstances of his work routine.

 On Monday, October 4, 1993, a meeting was held at the Hotel (the "Second Meeting"). Present were Mohamed, Contreras, Chuck Duffner, Woodies' supervisor from the engineering department, and Heffernan, a professional interpreter. At the Second Meeting, after another discussion of the events of October 1, Mohamed was given another opportunity to vindicate himself. After listening to his explanation, which Mohamed contends was the same, consistent one described above, Contreras informed Mohamed that his employment was terminated. At the Second Meeting Contreras accused Mohamed of lying at the First Meeting. As grounds for the termination, Contreras told Mohamed that he was being fired because he was supposed to give the money he had found to a guard and to contact the personnel office or the human resources department, rather than placing the money in his locker. Mohamed had initialled a statement at the time of his employ stating, "I will not place valuable belongings in the locker, as I understand that my employer cannot accept responsibility for loss of such items."

 On October 4, Giesbert, Pietzak, and Contreras signed a form terminating Mohamed's employment. Heffernan signed the form as well to indicate her presence at the Second Meeting. At that point, Mohamed's termination became effective.

 The Motion to Amend the Complaint is Granted

 Mohamed seeks to amend his complaint to include a claim under the New York City Civil Rights Law, a claim for intentional and reckless infliction of emotional distress, and a request for attorney's fees. In addition, he seeks to add Xiomara Amaya Mohamed, his wife, as a plaintiff in this action, claiming that she possesses a claim for loss of consortium. Finally, Mohamed's proposed amended complaint also abandons his original separate claims for alleged pain and suffering and for punitive damages.

 Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." The decision to grant or deny the filing of an amended pleading, however, is within the sound discretion of a trial judge. Zenith Radio Corporation v. Hazeltine Research, Inc., 401 U.S. 321, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Katz v. Morgenthau, 892 F.2d 20, 22 (2d Cir. 1989). The Supreme Court has interpreted Rule 15 to permit such amendments only when (1) the party seeking the amendment has not unduly delayed, (2) that party is not acting in bad faith or with a dilatory motive, (3) the opposing party will not be unduly prejudiced by the amendment, and (4) the amendment is not futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983); see also Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (trial court required to take into account any prejudice that might result to party opposing the amendment) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971)).

 Marriott asserts that it will be prejudiced by the amendment, compelling additional time and wasteful discovery. It argues that two of the claims Mohamed seeks to add -- intentional infliction of emotional distress and loss of consortium -- will require potentially extensive additional discovery of issues not faced by the parties during the fifteen prior months of litigation. It is true that where a party, "in seeking to add myriad new claims, advances no reason for his extended and undue delay, other than ignorance of the law; such a failure has been held an insufficient basis for leave to amend." Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir. 1976) (citations omitted). Marriott contends that the motion to amend comes before the Court in a posture of extreme delay, and that the new claims are asserted merely to convince this Court of a need for further delay and discovery.

 The proposed complaint, however, represents Mohamed's first attempt to amend his Complaint, Although he waited for over a year before making this motion, Marriott did not make any motion to dismiss or for summary judgement in the meantime. Mohamed therefore has not unduly delayed or prejudiced Marriott by bringing this motion. See Oliver Schools, Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991).

 Marriott contends that the proposed complaint would be futile in light of the prior proceedings. An amendment is considered futile if the proposed pleading fails to state a claim or would be subject to a motion to dismiss on some other basis. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974). The new claims interposed by Mohamed state an appropriate cause of action.

 Mohamed's amendments come, moreover, at the end of discovery, when it can be well expected to interpose new claims. In Zenith, for instance, the movant sought to amend its reply a year after discovery had been closed, and after the trial judge had entered preliminary findings of facts and conclusions of law favoring the non-movant. Zenith, 401 U.S. at 323-25. Given this timing, and in the absence of evidence of bad faith, the motion to amend the complaint will be granted.

 Marriott has requested that its motion for summary judgment be extended immediately to the new causes of action in the event that the requested amendment is permitted. All of Marriott's claims are, therefore, addressed herein.

 Standard for Summary Judgment

 The instant motion is brought pursuant to Rule 56. The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Fed. R. Civ. P. 1: namely, "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 The Motion to Dismiss the Claim Under the Americans With Disabilities Act is Denied

 The Americans with Disabilities Act states that:

 
No covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job ...

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