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November 15, 1995

HAHMOD ZENNI, Plaintiff, against HARD ROCK CAFE INTERNATIONAL, INC., (N.Y.), Defendant.

Peter K. Leisure, U.S.D.J.

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

 This is an action brought by Hahmod Zenni ("Zenni" or "plaintiff") against his former employer, Hard Rock Cafe International, Inc. (N.Y.) ("Hard Rock" or "defendant"). In his amended complaint, plaintiff alleges that he was discriminated against, and denied a job promotion by, Hard Rock because he is an African-American. *fn1" In addition, plaintiff alleges that he was unlawfully terminated in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). *fn2" Plaintiff seeks, as remedies, compensatory and punitive damages, backpay, reinstatement, a permanent injunction preventing defendant from engaging in unlawful acts which discriminate against plaintiff on the basis of race, and attorney's fees.

 Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, defendant moves for summary judgment. For the reasons stated below, defendant's motion is granted in its entirety.


 Hard Rock operates a large restaurant located on West 57th Street in New York City. Hard Rock employs approximately 200 persons in various departments, including Management, Host, Outdoor Host, Server, Merchandise, Bartender, Busser, Kitchen Administration, Expediter, and others. See Affidavit of Jack Moran ("Moran Aff.") P 3 As is the case with most restaurants, high-quality customer service is extremely important to Hard Rock. The Hard Rock employee manual stresses the importance of all employees working together as a team, keeping a positive, upbeat attitude, and always being polite to customers, regardless of the situation. See id. Ex. 1 at 18-20.

 From August of 1987 until October of 1991, Zenni worked on the premises of Hard Rock as a security guard for an independently owned and operated company, Dacrem Security ("Dacrem"). See Deposition of Hahmod Zenni ("Zenni Dep.") at 139-41. As a security person for Dacrem, plaintiff was stationed outside the front of the restaurant, and he had continual contact with Hard Rock customers waiting in line and entering the restaurant, and with Hard Rock employees. See Affidavit of Hahmod Zenni ("Zenni Aff.") P 2.

 In October of 1991, Zenni inquired with Hard Rock managers whether any positions inside the restaurant were then available. Zenni was told that a Host position was available, and he was hired as a Host by Hard Rock on October 22, 1991. See Zenni Dep. at 147, 150, 177-78. *fn3" About one month after being hired as a Host, plaintiff first expressed interest in being considered for the position of Server, which is Hard Rock's term for waiter. Id. at 147. He was informed by Hard Rock that persons with no previous Server experience are generally asked to work as an Expediter before becoming a Server and that there was at the time a list of other employees who had expressed interest in the Expediter job before him. See id. at 200. *fn4" Expediters are responsible for arranging food on the plates after it comes from the kitchen and helping Servers run food to the tables. See id. at 169-72.

 In December of 1991, two months after beginning his employment, Zenni received his first biannnual written evaluation as a Host. While his overall evaluation indicated that he was "meeting the high standards" of Hard Rock, his evaluations were substandard in the areas of customer relations, attitude about Hard Rock and other employees, and maintaining a positive attitude. See Zenni Dep. Ex. O. In hand-written comments, the supervisor reviewing Zenni wrote "Good desk skills, but needs to curb abruptness when under stress. Must improve on relationships with other Hosts. Treat all w/Respect." The reviewer also wrote "Keep up the good work-I am impressed so far with your focus willingness to work hard." Id. Apparently agreeing with Hard Rock's initial assessment of his performance, plaintiff, in his first self-evaluation prepared sometime after his employer-prepared evaluation, gave himself substandard evaluations in the areas of teamwork and communications. See Zenni Aff. Ex. C.

 In February of 1992, Zenni's fourth full month as a Hard Rock employee, he received more complaints about his job performance. First, Hard Rock records indicate that four Servers complained to management about Zenni's "attitude, rudeness, [and] inconsiderate behavior." See Zenni Dep. Ex. F. The Servers also complained that plaintiff was not seating guests evenly throughout the dining room, thus affecting their ability to earn tips. Zenni's managers mentioned the complaints to him, and Zenni resolved the problem by personally telling each Server that he would do his best to make sure the seating of customers would be fair and equitable. See Zenni Aff. P 10.

 On February 17, 1992, Hard Rock received a complaint from a guest that plaintiff had been rude to her. According to his deposition testimony, plaintiff told a customer waiting to be seated, "Would you please go back to the bar? I'm trying to do a job here." Zenni Dep. at 618. For the second time in four months, plaintiff was issued a written Notice of Disciplinary Action. See id. Ex. P. Plaintiff was suspended for three days as a result of this incident. See id. The Notice also stated that plaintiff's next infraction would result in termination.

 On April 25, 1992, plaintiff became involved in an argument with a co-worker on the floor of the restaurant. While the conduct did not result in any punishment, it was written up in the Staff Contact Sheet. See id. Ex. F. The written comment said, "Hammond [sic] cannot control temper and seems 'stuck' on being right."

 In June of 1992, approximately eight months after beginning his employment, plaintiff received his second biannual written evaluation. His overall score indicates that plaintiff was no longer meeting the standards of Hard Rock. See Zenni Dep. Ex. H. *fn6" Plaintiff fell below Hard Rock standards in teamwork, friendliness, customer relations, poise, communication, following directions, positive attitude, attitude about Hard Rock, and pride in Hard Rock. Id.

 Hand-written comments on the evaluation sheet indicate that plaintiff possessed some positive qualities as an employee. He was described as "purposeful and focused," "intelligent," "self-confident," and "magnetic." However, in the space listing areas to improve, the supervisor mentioned communication, attitude, friendliness, and compassion. The written evaluation ended with the following:

Hahmod displays the signs of a "persecution complex" and feeds it whenever given the chance. We cannot continue to allow Hahmod to work in this dept. unless he desires to improve his people skills . . . and we see the immediate effects. Currently classified as a high maintenance employee.

 Id. Plaintiff, in his self-evaluation, gave himself low marks in communication and friendliness. See id. Ex. M. In his written comments, he acknowledged he had made mistakes, but believed he had worked to rectify them. In addition, he stated that it was "hard to stay proud of a company that hasn't hired but two black employees into any money positions in the four years that I've been here." Id.

 In September of 1992, Hard Rock discontinued its relationship with Dacrem, and created its own security department. The Hard Rock security position is called "Outdoor Host." Plaintiff asked for and received some shifts as an Outdoor Host, in ...

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