United States District Court, S.D. New York
January 9, 2004.
GILBERTO RODRIGUEZ, Plaintiff, -against- THE PIERRE NEW YORK, FRC PROPERTIES PARTNERSHIP, and FOUR SEASONS HOTELS, Defendants
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Gilberto Rodriguez ("Rodriguez"), proceeding pro See, alleges
that his employers at the Pierre Hotel (the "Pierre") in Manhattan fired
him because of his age, in violation of federal and state civil rights
laws. The Pierre*fn1 moves for summary judgment. For the following
reasons, the motion is granted.
Rodriguez worked as a server at the Cafe Pierre Bar from December 1982
until his termination in November 2000. Rodriguez, then age 52, alleges
his dismissal was the culmination of years of unlawful age discrimination
and harassment. The Pierre contends that Rodriguez, who had a
spotty employment record at the hotel, was fired for stealing.
Understanding this theft allegation requires some background on the
Pierre's bar service procedures and its use of consultants to monitor
employee integrity. Bar servers enter customer orders into a computer
system, which then generates a printed check detailing the order. The
server is supposed to give customers that check for each round of orders.
Whether a customer pays in cash, by credit card, or by charging the order
to a hotel room, the server is supposed to take the payment and the
corresponding check to a cashier, who is located one floor below the bar.
The cashier enters the transaction into the computer system, thereby
"closing out" the check.
The Pierre hires a consulting firm to monitor employee integrity.
Without alerting any hotel employees (including management), the
consulting firm's agents visit the hotel posing as guests, and then later
submit a report of their activities. Two agents visited the Pierre on
consecutive weekends in October 2000, and, based on their report, the
Pierre fired two bar servers for stealing: Rodriguez, and a man named
Derek Ma ("Ma"), then age 34. In Ma's case, the agents reported that they
had paid Ma cash for their drinks, but never received a check or a
receipt. The computer system never recorded the agents' order. Because
the cash receipts
for that evening matched the cash checks, the Pierre concluded that,
instead of simply forgetting to register the order, Ma had pocketed the
The theft allegation against Rodriguez is slightly more elaborate.
After 7:00 p.m., the Pierre requires customers to order a minimum of $20
in drinks or food per person. When a customer's order is under that
minimum, the bar server enters the transaction in the computer as "1
wine/champ" (which is charged as $20) instead of the actual drink
ordered. The agents ordered from Rodriguez a round of drinks totaling
less than $20 per person, and then asked him for the check. Rodriguez
gave them check number 14279, which stated "2 wine/champ," and they paid
with $55 in cash. The Pierre later discovered that check number 14279
(the one upon which the agents paid) was charged to a separate hotel room
guest, who had paid a total of $50.30. The computer system indicated that
there were no checks for "2 wine/champ" which were paid in cash that
night. The Pierre concluded that Rodriguez had "recycled" the check to
another customer, and pocketed the agents' cash payment. That night, the
cash receipts matched the cash checks, suggesting that Rodriguez had
purposefully recycled the check. The Pierre fired Rodriguez.
Rodriguez denies stealing the $55. He states that it was very busy that
night, and that he may have been confused and
made a mistake. In an effort to demonstrate his integrity, Rodriguez
directs the Court's attention to an incident in 1990 in which he returned
a large paycheck which the Pierre had erroneously issued him.
Rodriguez casts the alleged theft as pretext: for age discrimination.
Although he concedes that nobody at the Pierre ever made disparaging
age-related comments towards him, Rodriguez contends his age-related
health problems led to harassment at work, culminating in unlawful
discharge. The best the Court can articulate Rodriguez's elusive argument
is as follows. Rodriguez worked nine-hour shifts without a break, and
these shifts became harder as he got older. Rodriguez suffered hip
problems, gained weight, and was generally unable to perform at his job
as well as he could at a younger age. His superiors began ridiculing him
by, for example, calling him a fat pig or commenting on his visible
perspiration. According to Rodriguez, his superiors preferred to have a
younger person in his position.
Under a collective bargaining agreement with Rodriguez's union, the
Pierre may discharge employees only for cause, and the union may
challenge a discharge before an impartial arbitrator. Rodriguez,
represented by a union attorney, challenged his discharge. The arbitrator
concluded that Rodriguez had stolen from the Pierre and that his
was for just cause.
Rodriguez then filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") alleging his termination was based upon unlawful age
discrimination. The EEOC concluded it was unlikely that Rodriguez could
establish a valid claim of age discrimination, and issued him a
right-to-sue letter, after which he brought the present lawsuit.
II. STANDARD FOR A SUMMARY JUDGMENT
The Court may grant summary judgment only "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). The Court must first look to the
substantive law of the action to determine which facts are material;
"[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc.. 477 U.S. 242
, 248 (1986).
Even if the parties dispute material facts, summary judgment will be
granted unless the dispute is "genuine." Id. at 249. "The mere existence
of a scintilla of evidence in support of the [non-moving party's]
position will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-moving
party]." Id. at 252.
Throughout this inquiry, the Court must view the evidence in the light
most favorable to the non-moving party and must draw all reasonable
inferences in favor of that party. See Hanson v. McCaw Cellular
Communications, Inc.. 77 F.3d 663, 667 (2d Cir. 1996).
The Age Discrimination in Employment Act ("ADEA") makes it unlawful for
an employer "to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
age." 29 U.S.C.A. § 623(a)(1). Courts analyze ADEA claims under the
familiar burden-shifting analysis for all civil rights discrimination
cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2003). First, the plaintiff must make a prima facie case of
discrimination, id., which here means "the plaintiff must show (1) that
he was in the protected age group; (2) that he was qualified for the
position; (3) that he was discharged; and (4) that the discharge occurred
under circumstances giving rise to an inference of discrimination."
Norton v. Sam's Club, 145 F.3d 114, 118 (1998). "Generally speaking, a
plaintiff's burden of establishing a prima facie
case in the context of employment discrimination law is `minimal.'"
Collins v. New York City Transit Auth.. 305 F.3d 113, 118 (2002) (quoting
McGuinness v. Lincoln Hall. 263 F.3d 49, 53 (2d Cir. 2001)).
If the plaintiff meets this minimal burden, the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory reason for the
adverse employment action. Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981) (citing McDonnell Douglas, 411 U.S. at 802).
This intermediary burden is one "of production, not persuasion" and
involves no credibility determinations. Reeves, 530 U.S. at 142.
Finally, if the defendant meets this intermediary burden, "the plaintiff
must then have an opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253
(citing McDonnell Douglas, 411 U.S. at 804). "The ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
It is unlawful under New York state law "[f]or an employer . . .,
because of the age . . . of any individual, to discharge from employment
such individual or to discriminate against such individual in
compensation or in
terms, conditions or privileges of employment." N.Y. Exec. Law §
296-1(a). It is unlawful under the laws of New York City "[f]or an
employer . . . because of the actual or perceived age . . . of any
person, . . . to discharge from employment such person or to discriminate
against such person in compensation or in terms, conditions or privileges
of employment." N.Y. City Admin. Code § 8-107(1)(a). Although the
wording of these provisions is slightly different, and each differs
slightly from the ADEA, the Court applies the same analysis to these
claims as the federal ADEA claim. See Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 466 (2d Cir. 2001).
The Court must grant the summary judgment motion because Rodriguez has
not even met the minimal burden of making a prima facie case of
discrimination. Specifically, there is nothing in the record to suggest
"that the discharge occurred under circumstances giving rise to an
inference of [age] discrimination." Norton, 145 F.3d at 118. Notably,
Rodriguez does not offer any evidence suggesting that (1) the Pierre
replaced him with someone younger, see, e.g., Reeves, 530 U.S. at 142
(plaintiff replaced by persons in their thirties); (2) the Pierre fired
other older employees, see, e.g. Norton, 145 F.3d at 119 (plaintiff fired
near the same time as another employee over forty); or (3) anyone at the
disparaging comments about his age, see, e.g. Parker v. Metropolitan
Transp. Auth., 97 F. Supp.2d 437, 441 (S.D.N.Y. 2000) (defendant called
plaintiff "old bastard"). Rodriguez instead argues that he was subject to
discrimination because he had slowed down in his work, gained weight, and
tended to perspire. Assuming these factors are even correlated with age,
that fact, without more, does not amount to a claim of age
discrimination. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)
(holding that termination based on pension status, which is typically
correlated with age, does not violate ADEA). It is important to note that
Rodriguez is not alleging that the Pierre unfairly stereotyped him as
less productive based upon his age; he agrees that he is less productive
because of his age. Cf. id. ("It is the very essence of age
discrimination for an older employee to be fired because the employer
believes that productivity and competence decline with old age.").
Alternatively, even if the Court agreed that Rodriguez met his prima
facie case, he has offered no evidence to counter the Pierre's compelling
nondiscriminatory explanation for his termination. Rodriguez's only
response to the theft allegation is the conclusory, question-begging
assertion that he is an honest person and would not steal. Even assuming
that Rodriguez is an honest person who would not (and did not)
steal from the Pierre, the Pierre may satisfy its intermediary burden
merely by showing it reasonably relied upon the consultants' report. See
Graham v. Long Island R.R., 230 F.3d 34, 44 (2d. Cir 2000) ("The key
question is whether it was reasonable for the employer to rely on the
[drug] test result in making its employment decision."). Rodriguez has
not put forth any reason to doubt the consultants beyond the (again)
question-begging assertion that he did not steal the money.*fn3
Finally, the Court notes that the Pierre has offered affirmative
evidence of its employment practices which further undermines Rodriguez's
claim. The Pierre fired another bar server, Ma, who is almost twenty
years younger than Rodriguez, based upon the same consultants' report.
The evidence in the record also demonstrates that the Pierre employs many
bar servers as old or older than Rodriguez.
For the reasons stated, it is hereby
ORDERED that the motion of defendants for summary judgment is granted
and the case is dismissed with prejudice.
The Clerk of Court is directed to enter judgment on
defendants' behalf and to close this case, SO ORDERED.