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MCDONALD v. B.E. WINDOWS CORP.

April 30, 2003

FRANCES MCDONALD, PLAINTIFF, AGAINST B.E. WINDOWS CORP., DEFENDANT


The opinion of the court was delivered by: Robert L. Carter, United States District Judge

OPINION

Plaintiff, Frances McDonald, commenced this action against defendant, B.E. Windows Corp., alleging a sex-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq., New York State Human Rights Law, Executive Law, Article 15, § 290 et seq., and Title 8 of the New York City Human Rights Law. Defendant now moves for summary judgment pursuant to Rule 56, F.R.Civ.P., on these claims.

Facts

Plaintiff, Frances McDonald, was hired on June 3, 1996, by defendant, B.E. Windows Corp., as a bartender in "The Greatest Bar on Earth" ("GBOE"), a bar on the top floor of the former World Trade Center ("WTC"). (Pl.'s Aff. ¶ 6.) At approximately the time plaintiff began working at OBOE, three attorneys who worked in the WTC, Ernest Marrero, Ron Wolf, and Nathan Cohen ("patrons"), began visiting the bar regularly after work. (Def.'s Ex. J.) These patrons were known for their obnoxious behavior which included making inappropriate comments about women and telling lewd jokes. (Def.'s Ex. J.)

In late October of 1998, the patrons' conduct became personal with regard to plaintiff. When plaintiff returned to her bar after taking a break, Wolf shouted at plaintiff, "Hey baby, why don't you take it off for us . . . your breasts look bigger tonight." (Pl.'s Aff. ¶ 13.) Plaintiff told him to "shut the hell up," but Wolf continued taunting plaintiff, yelling at her to take off her clothes. (Pl.'s Dep. at 97.) When another bartender, George Delgado, attempted to quiet Wolf, a melee broke out. (Id. at 100.) Cohen jumped in front of Wolf and began shouting obscenities, threatening, "I'll kick your fucking ass," while leaning over the bar and reaching for Delgado. (Delgado Dep. at 45.) Joe Amico, the bar manager, came over to defuse the situation, but the patrons resisted Amico's efforts and continued shouting threats at Delgado. (Amico Dep. at 18.) After a half hour of Amico's pleading, the patrons left voluntarily. (Pl.'s Dep. at 106; Delgado Dep. at 51.)

Following this incident, plaintiff and GBOE's management agreed that in the event these patrons returned, plaintiff would not have to serve them and they would not be allowed to sit at her bar. (Pl.'s Aff. ¶¶ 16, 17.) This agreement was effective until December 9, 1998, when plaintiff arrived at work and found the three patrons sitting at her bar. (Id. at ¶ 23; Def.'s Ex. J.) On plaintiff's request, Amico advised the patrons of the rules and requested that they sit elsewhere in the establishment. (Pl.'s Aff. ¶¶ 24, 25.) Instead of cooperating, the patrons became enraged, threatening Amico with legal action, accusing him of discrimination, and suggesting they could have his home taken away from him. (Amico Dep. at 41; Def.'s Ex. J.) After two hours of arguing with the patrons, Amico convinced them to stand no closer than 10 feet from plaintiff's bar. (Pl.'s Dep. at 118, 119.)

In order to avoid another confrontation between plaintiff and the patrons, Amico directed plaintiff to wait in the kitchen until he was able to subdue them. (Pl.'s Aff. ¶ 26.) Amico's efforts however proved less than satisfactory because when plaintiff returned, the patrons were standing 10 feet away, glaring at her, and continued to do so for a significant portion of the evening. (Pl.'s Dep. at 119.) In addition, plaintiff was unable to recover nor was she reimbursed for the two hours worth of tips she lost while waiting in the kitchen for Amico to resolve the situation. (Pl.'s Aff. ¶ 28.)

In February of 1999, the patrons again attempted to sit at plaintiff's bar. (Pl.'s Dep. at 86, 88.) Plaintiff reminded the patrons they were prohibited from sitting at her bar but instead of complying, the patrons argued with plaintiff about the October incident. (Id. at 86.) The bar manager, Glenn Vogt, witnessed this altercation and although he did not get involved, the patrons eventually moved away voluntarily. (Id. at 88; Delgado Dep. at 94.)

Between the months of February and July, 1999, the patrons did not sit at plaintiff's bar but continued to frequent GBOE several times a week. (Pl.'s Dep. at 135.) On four or five occasions they approached plaintiff's bar forcing plaintiff to remind them of the prohibition. (Pl.'s Dep. at 127.) Rather than insist, the patrons would then call plaintiff's name, stare and smirk at plaintiff, and "look[] [her] up and down" for the rest of the evening. (Pl.'s Dep. at 141, 144; Pl.'s Aff. ¶ 18.)

On July 29, 1999, the patrons were once again sitting at plaintiff's bar when she arrived to work. (Pl.'s Aff. ¶ 37.) Plaintiff complained to Vogt that the patrons were deliberately flaunting the prohibition but Vogt refused to move them unless they said something inappropriate to plaintiff. (Id. at ¶ 37.) Plaintiff returned to work and avoided the patrons by having the other bartender on duty serve them for the hour they remained at the bar. (Id. at ¶ 38.)

A few weeks later in August, when plaintiff arrived at work, the patrons were at her bar again. She requested Amico enforce the prohibition, but he refused to do so. (Pl.'s Aff. ¶¶ 39, 41; Pl.'s Dep. at 143.) Plaintiff then became upset, warning Amico that she had gone to the Equal Employment Opportunity Commission ("EEOC") and was considering legal action. (Pl.'s Dep. at 142.) Amico was unaffected and suggested that plaintiff wait in the kitchen until the patrons left her bar. (Id. at 142.) Plaintiff did so and when she emerged from the kitchen an hour later, the patrons had moved voluntarily. (Id. at 143.)

On September 30, 1999, a private investigator ("shopper") visited GBOE and subsequently filed a report alleging that plaintiff misquoted the prices of drinks to him and served him a drink gratuitously. (Pl.'s Ex. I.) As a result of this report, plaintiff was terminated from GBOE on October 13, 1999, for violating GBOE's cash handling policies. (Pl.'s Aff. ¶ 3.) Plaintiff's termination coincided with the day she filed her first EEOC claim alleging sexual harassment. (Id. at ¶ 4.) On October 15, 1999, plaintiff amended her EEOC complaint to include unlawful retaliation. (Id. at ¶ 5.)

Discussion

I. Summary ...


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