performance was not meeting Hard Rock's standards.
Zenni's only plausible argument is that he should have been promoted sometime between his first evaluation in December of 1991, and his infractions in February of 1992. But, again, performance problems had already been documented. In addition, of the employees who were selected to be Expediters during the time Zenni applied, one had six months restaurant experience, and the rest had significantly more experience. See Defendant's Memorandum of Law in Support of Motion for Summary Judgment at 33 (citing relevant portions of Zenni Aff.). Zenni does not make any argument explaining why Hard Rock's requirement that Expediters have restaurant experience is unnecessary, other than to say the position is an entry level one. Such a conclusory challenge to Hard Rock's employment practice is legally insufficient to create a genuine issue precluding summary judgment. See Goenaga, 51 F.3d at 18.
Both plaintiff and defendant assume throughout their motion papers, affidavits, and depositions, that the Expediter job is simply a stepping stone to the Server position. See Zenni Aff. PP 4-6, 9, 11-12, 15; Zenni Dep. 169; Supplemental Affidavit of Jack Moran ("Moran Supp. Aff.") P 2,4. Recognizing the connection between the two jobs, and understanding the demanding nature of the Server position at Hard Rock, see Moran Supp. Aff. Ex. A, provides justification for Hard Rock's requirement that Expediters have restaurant experience. In addition, the Hard Rock employee requirements for Server contain many qualities which plaintiff, through both supervisor and personal evaluation, was lacking. See id.
By the time Zenni had gained the requisite experience to be in a position to obtain the Expediter position, he had received more complaints from both co-workers and customers, been involved in a loud argument with a co-worker, and received his second formal evaluation, which indicated that Zenni's performance was no longer meeting Hard Rock's standards. See Zenni Aff. Ex. H; Harriot v. Barnard College, 1991 U.S. Dist. LEXIS 9514, *5, 1991 WL 135625, at *4 (S.D.N.Y. July 16, 1991) (Keenan, J.) (plaintiff's multiple written and verbal warnings, and multiple suspensions, preclude establishment of prima facie case for discriminatory termination); Plaisner, 1989 U.S. Dist. LEXIS 3170, *14-15, 1989 WL 31495, at *5 (consistently deteriorating performance standards lends support to decision not to promote).
Finally, plaintiff does not supply any evidence that other people promoted to either Expediter or Server during the relevant time period had the poor performance record he did. See Thermidor v. Beth Israel Medical Ctr., 683 F. Supp. 403, 414 (S.D.N.Y. 1988) (because plaintiff cannot show that other employees who also had problems working with staff members were not discharged, no inference of discrimination); cf. Gibson v. American Broadcasting Cos., Inc., 892 F.2d 1128, 1133 (2d Cir. 1989) (summary judgment in a failure to promote case inappropriate where black plaintiff, who had received criticism from employers, provided evidence that white employees with similar employment histories were promoted more quickly). Therefore, viewing the facts in the light most favorable to plaintiff, he cannot show a prima facie case of discriminatory failure to promote because he cannot show that he was performing his duties as Host at a level meeting Hard Rock's expectations.
In an effort to establish his prima facie case of discriminatory treatment, plaintiff makes two more arguments beyond asserting his qualifications for the Expediter position. First, he presents statistics attempting to show that Hard Rock discriminated in its hiring and promoting of both Servers and Expediters. Second, he supplies an affidavit from Richard Cooper, an African-American who was made an Expediter at Hard Rock, but never promoted to Server due to performance problems which Cooper claims were merely a pretext for racial discrimination.
As an initial note, the Court believes that making these arguments to help establish a prima facie case does not fit within either the four part prima facie case test developed in McDonnell Douglas, or the rationale behind the test.
See Furnco Const. Corp. v. Waters, 438 U.S. 567, 579-80, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978) (language suggesting that statistical evidence in a discriminatory treatment action is not relevant to the prima facie case); Aguirre-Molina v. New York State Div. of Alcoholism, 675 F. Supp. 53, 60 (N.D.N.Y. 1987) (statistical evidence relevant only to the issue of pretext). The key insight in McDonnell Douglas is the recognition that a plaintiff in a discriminatory treatment case would often have difficulty attempting to prove discrimination by showing that every legitimate reason an employer might have for reaching an employment decision was not present. Therefore, the Court created a three-part burden shifting scheme whereby a plaintiff could prove its case of the employer's discriminatory intent without any positive evidence. See Price Waterhouse v. Hopkins, 490 U.S. 228, 270, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J., concurring in the judgment) ("When a number of potential causes for an employment decision are eliminated an inference arises that an illegitimate factor was in fact the motivation behind the decision."); see also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The McDonnell Douglas scheme of creating an inference of discrimination by negative proof of legitimate reasons for an employment decision does not seem to allow for positive proof of discrimination such as statistical evidence. Plaintiff wants to use these arguments to make a prima facie showing of discriminatory intent, but the entire point behind McDonnell Douglas is that such a showing is properly made if the plaintiff establishes that he was qualified for the job, and the job remained open for application after the plaintiff was rejected. It is this very fact which allows the inference of discrimination.
The Court recognizes that there is authority in the Second Circuit which permits the use of statistical and other positive evidence to help establish a prima facie case. See, e.g., Martin v. Citibank, N.A., 762 F.2d 212, 219 (2d Cir. 1985); Hudson, 620 F.2d 351, 355 (2d Cir. 1980) (statistical evidence may be used to support a prima facie case of failure to promote, but statistics alone cannot create such a prima facie case). Because the Court does not find either the statistics or Cooper's affidavit to give rise to an inference of discrimination, whether they are treated as appropriate for the prima facie case, or as evidence to show that defendant's explanation
for its failure to promote plaintiff is pretextual, or simply as positive proof of discriminatory intent, does not matter in this case. The evidence is insufficient to help establish a prima facie case, insufficient to show pretext, and insufficient to demonstrate discriminatory intent.
The statistical evidence has many weaknesses. First, it is not supported by any expert analysis. See Martin, 762 F.2d at 218 (value of statistical proof is slight where the analysis conducted by the expert is weak); Morales v. Human Rights Div., 878 F. Supp. 653, 658 (S.D.N.Y. 1995). Second, plaintiff's sample is small, meaning that small changes in hiring may prompt dramatic statistical fluctuations, making statistical analyses untrustworthy in this situation. See Beers v. NYNEX Material Enters. Co., 1992 U.S. Dist. LEXIS 240, *20, 1992 WL 8299, at *7 (S.D.N.Y. January 13, 1992). Third, and most important in this case, statistical evidence of an employer's general hiring practices is insufficient to prove that a particular plaintiff was discriminated against. See Zahorik v. Cornell Univ., 729 F.2d 85, 95 (2d Cir. 1984) (evidence showing that a greater percentage of male candidates than female candidates were granted tenure is insufficient to show that individual plaintiff's discriminated against); Hudson, 620 F.2d at 355 (statistical evidence alone cannot create a prima facie case of discriminatory treatment).
Plaintiff's attempt to prove discriminatory intent through the affidavit of one other African-American employee of Hard Rock is equally unpersuasive. First, while Cooper was denied a promotion to the Server position, he was promoted to an Expediter position, the very position plaintiff claims to have been denied because of his race. See Cooper Aff. P 2. After being appointed to the Expediter position, Cooper claims that Hard Rock began to view him as a discipline problem in order to prevent him from becoming a Server. Indeed, Cooper states that all six of the disciplinary incidents he was involved in occurred after being named an Expediter. See id. P 3. Even if true, his assertion that these disciplinary problems were "minor" and "wholly unjustified" is merely "conjecture" and "surmise" and will not defeat a motion for summary judgment. See Goenaga, 51 F.3d at 18. The fact that other African-Americans were succeeding at Hard Rock, see Affidavit of Larry Doby, Jr. P 3, Def. 3(g) PP 90-93, further undercuts the reliability of Cooper's speculative assertions.
In sum, because plaintiff's performance was not meeting Hard Rock's legitimate expectations, he cannot establish a prima facie case of discrimination. The Court believes that plaintiff's offering of statistical evidence and the affidavit of Cooper could never overcome this fact because they are not probative of his qualifications for the job. See Lewis v. Air France, 1990 U.S. Dist. LEXIS 4379, *9, 1990 WL 49053, at *4 ("If plaintiff cannot present evidence that would justify a jury finding that his performance was satisfactory, he cannot state a prima facie case of discrimination, and necessarily cannot show that his termination was pretextual."). Even if one assumed this kind of evidence could overcome plaintiff's lack of qualifications, the visceral appeal of such an argument disappears on further analysis. Therefore, plaintiff's Title VII claim for failure to promote must fail.
III. Plaintiff's Retaliation Claim
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-(3)(a) states that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge . . . under this title." Zenni asserts that Hard Rock unlawfully retaliated against him after he filed his first charge with the EEOC on November 16, 1992. "The distribution and allocation of burdens of proof in retaliatory discharge claims follow the general disparate treatment analysis set forth in McDonnell Douglas Corp. v. Green. . .". Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1038 (2d Cir. 1993). However, a finding of retaliation does not depend upon the merits of the underlying discrimination complaint. See Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986). In order to support a prima facie case of retaliation under Title VII, plaintiff must show that: (1) he was engaged in a activity protected under Title VII; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took an adverse employment action against the plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the employer's adverse action. See Cosgrove v. Sears, Roebuck & Co., 9 F.3d at 1039 (citing Sumner v. U.S. Postal Serv., 899 F.2d 203, 208-09 (2d Cir. 1990); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). In this case, only part four of the prima facie case is disputed; defendant contends that there is no causal connection between plaintiff's filing of an EEOC charge in November 1992, and his treatment thereafter, including his termination in December of 1993. A causal connection may be established either "indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (quoting DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (citations omitted)). Plaintiff has supplied no evidence of retaliatory animus directed toward him, nor has he shown disparate treatment of other similarly situated employees. Therefore, any claim he might have must go forward based upon a showing that the filing of his EEOC charge was followed closely by discriminatory treatment.
Plaintiff offers four examples of adverse action taken by Hard Rock after the filing of his EEOC charge. First, he states that his third performance evaluation, given less than one month after the filing of the charge, was "a totally negative evaluation," see Pl's. Opp. at 24, despite the fact that just before the filing of the charge Hofing told him he had been rejected from the Expediter position because his performance had been "flat." Zenni's argument does not persuade. First, while the third evaluation was his worst, it was not markedly worse than the one he received six months earlier, where it was concluded that he was not performing up to Hard Rock's standards. See Zenni Dep. Exs. H & I; Lawson v. Getty Terminals Corp., 866 F. Supp. 793, 804 (S.D.N.Y. 1994) (employer's criticisms of employee's performance before employee engaged in protected activity relevant to finding that employee did not display the causal nexus necessary for establishment of a prima facie case); James v. Runyon, 843 F. Supp. 816, 826 (N.D.N.Y. 1994) (where plaintiff fails to produce any evidence that negative evaluations received were the result of protected activity, causal nexus requirement not met). In addition, the third evaluation does make some positive comments, and it proposes bi-monthly meetings to work on the performance problems. Finally, Zenni concedes that after filing the charge his attitude became worse. While he states that this shift in attitude was due to Hard Rock creating a hostile work environment, it should not be surprising that his subsequent evaluation was more critical of his attitude.
Second, Zenni asserts that "particularly after he had filed his first EEOC Charge," see Pl's. Opp. at 22, defendant subjected him to a hostile work environment. He claims that if his performance worsened, defendant cannot use this fact as a justification for failing to promote him. Plaintiff offers no evidence whatsoever to support this claim. His strongest statement is as follows: "Immediately following upon the filing of the EEOC Charge, the attitude of management and certain of my fellow employees toward me became decidedly negative. From that day forward, I worked in an entirely hostile environment." Zenni Aff. P 16. Such a statement is clearly insufficient to support a hostile work environment claim. Indeed, plaintiff does not allege that a single racially derogatory remark or action was ever made to him. Cf. Snell v. Suffolk County, 782 F.2d 1094, 1102-03 (2d Cir. 1986) (proliferation of demeaning literature and epithets were sufficiently continuous and pervasive to establish a hostile work environment); see also Vaughn v. Pool Offshore Co., etc., 683 F.2d 922, 924 (5th Cir. 1982) ("[A] discriminatory and offensive work environment, 'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,' in itself may constitute a violation of Title VII.") (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 32 L. Ed. 2d 343, 92 S. Ct. 2058 (1972).
Zenni also states that the suspension which resulted from a customer complaint in January of 1993 was retaliatory. Zenni asserts that the charge levied by the customer was untrue, and that another employee would support his version of thee events. See Zenni Aff. P 19. However, as stated earlier, neither Zenni's affidavit nor the fellow employee's letter describing the event claim that the customer's allegation that Zenni was rude is untrue. See id.; Moran Aff. Ex. 8. And, because of Zenni's prior infractions, his suspension simply followed Hard Rock policy.
Finally, Zenni alleges that his termination was retaliatory. Again, he fails to provide sufficient evidence to meet the causal nexus requirement. First, his ultimate termination was more than a year after he filed the EEOC complaint. Because the Court found no retaliation in plaintiff's third evaluation, his suspension, or in the allegedly hostile environment, a full year passed between the filing of the charge and this allegation of retaliatory conduct. Therefore, this is not a situation where the exercise of Title VII rights was "closely followed" by an adverse employment action. See Lees v. Case-Hoyt Corp., 779 F. Supp. 717, 726-27 (W.D.N.Y. 1991); cf. Tomka, 66 F.3d at 1308 (termination three months after promise that salary and benefits would be continued until after recovery from assault sufficient to create an inference of discrimination.); see also Davis, 802 F.2d at 642. More importantly, Hard Rock supplied ample evidence that plaintiff's termination was in fact due to his admittedly worsening attitude and the events of November 7, 1993. Hard Rock, by this time, had an employee who: (1) according to both management evaluations and self-evaluations, was performing below their standards; (2) had a history of performance problems; (3) had an admittedly deteriorating attitude; and (4) after receiving another complaint from a customer and threatening a fellow employee with physical violence, requested a leave of absence. Thus, plaintiff cannot make a prima facie case of retaliatory termination. Moreover, even if he could, plaintiff does not offer any argument for why defendant's proffered reasons for termination, namely the information listed above, was not the real reason for the decision to terminate.
For the reasons stated above, defendant's motion for summary judgment is granted in its entirety. The action is dismissed.
New York, New York
November 15, 1995
Peter K. Leisure