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SLAITANE v. SBARRO INC.

June 2, 2004.

AMAL SLAITANE, Plaintiff, -against- SBARRO, INC., Defendant; FARA FALL, Plaintiff, -against- SBARRO, INC., Defendant


The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

OPINION AND ORDER

The pro se plaintiffs in these two consolidated actions sue defendant Sbarro, Inc. for employment discrimination and retaliation.*fn1 Plaintiff in 03 Civ. 5503, Ms. Amal Slaitane, alleges that she was subjected to sexual harassment and retaliated against for complaining internally about the harassment. Plaintiff in 03 Civ. 5504, Mr. Fara Fall, alleges that Sbarro terminated his employment on account of his race and in retaliation for his support of Ms. Slaitane, with whom he lives. (See Dkt. No. 16: Briton Aff. Ex. 21: Slaitane Dep. at 24-25.)

Presently before the Court is Sbarro's summary judgment motion. (Dkt. Nos. 15-22, 25-26, 33.) The parties have consented to disposition of these actions by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10; 03 Civ. 5504: Dkt. Nos. 8-9.) For the reasons discussed below the Court grants summary judgment for Sbarro dismissing Fall's action (03 Civ. 5504), grants summary judgment for Sbarro on Slaitane's November 2002 retaliatory termination claim, and denies summary judgment for Sbarro on Slaitane's pre-August 2002 sexual harassment discrimination claim (03 Civ. 5503), which will proceed to trial.

  FACTS

 Plaintiffs Slaitane and Fall

  Ms. Slaitane was born in Morocco and employed by Sbarro, primarily as a cashier, from June 2001 to November 22, 2002. (Dkt. No. 21: Sbarro 56.1 Stmt. ¶¶ 8-9; Dkt. No. 16: Briton Aff. Ex. 21: Slaitane Dep. at 8-12.) Ms. Slaitane initially worked at Sbarro's 47th Street location (701 7th Avenue, known within Sbarro as Unit 320), then at stores at 34th Street and 33rd Street. (Sbarro 56.1 Stmt. ¶ 10; Slaitane Dep. at 10, 17-22; Dkt. No. 20: Hubbard Aff. ¶ 4.) The general manager of the 33rd Street store was Mr. Samouly (also known as Fahti), and when he moved to Unit 320 as general manager, he offered to have Ms. Slaitane move with him and she agreed, returning to the 47th Street store in June 2002. (Sbarro 56.1 Stmt. ¶¶ 10-13; Slaitane Dep. at 10, 17-22.) Mr. Fall is a black male who was born outside the United States and came to the United States in April 1999. (Sbarro 56.1 Stmt. ¶ 14; Briton Aff. Ex. 22: Fall Dep. at 5-6.) Fall was employed by Sbarro, primarily as a pizza man at Unit 320, from May 1999 until December 16, 2002. (Sbarro 56.1 Stmt. ¶ 15; Fall Dep. at 6, 18-19.) Fall began working for Sbarro under the name and documentation of a friend of his, Babacar Geoye. (Sbarro 56.1 Stmt. ¶ 16; Fall Dep. at 6-10; Briton Aff. Ex. 7: "Babacar Geoye" I-9; Dkt. No. 32: Slaitane/Fall Aff. ¶ 9.) When Fall was able to get working papers in his own name, he told the store's general manager, supplied his I-9 work permit, and worked for Sbarro under his true identity. (Sbarro 56.1 Stmt. ¶ 17; Fall Dep. at 10-13; Briton Aff. Ex. 8: Fall INS Employment Eligibility Verification; Slaitane/Fall Aff. ¶ 10.)

  Slaitane and Fall met while working for Sbarro in around June 2001. (Sbarro 56.1 Stmt. 18; Fall Dep. at 19.) Slaitane began living with Fall as "roommates" after she returned to the 47th Street store in June 2002, then became his "girlfriend," and in August 2003 Slaitane gave birth to a baby fathered by Fall. (Sbarro 56.1 Stmt. ¶¶ 19-20; Fall Dep. at 20-21; Slaitane Dep. at 24-25, 109; Briton Aff. Exs. 1 & 2, ¶ 1: Slaitane & Fall's Complaints, giving same address for both.)

 Defendant Sbarro

  As is well-known to New Yorkers, Sbarro operates a chain of Italian restaurants. (Sbarro 56.1 Stmt. ¶ 21; Dkt. No. 20: Hubbard Aff. ¶ 2.) In addition to Unit 320 at 47th Street, Sbarro has a restaurant at 49th Street (Unit 897), where it also has local management offices, and numerous other restaurant locations in Manhattan. (Sbarro 56.1 Stmt. ¶ 21; Hubbard Aff. ¶ 2.) The general manager of Unit 320, and general managers from other Sbarro locations, report to a Regional Manager, in this case Mr. Souhaile Sara. (Sbarro 56.1 Stmt. ¶ 22; Hubbard Aff. ¶ 3; Slaitane Dep. at 51-52.)

  Sbarro's Human Resources Department is responsible for, among other things, administering employment policies including EEO policies. (Sbarro 56.1 Stmt. ¶ 23; Hubbard Aff. ¶ 5.) Sbarro posts its EEO, harassment and problem resolution policies in the stores, and in addition Sbarro gives employees an Employee Handbook explaining its EEO and complaint policies. (Sbarro 56.1 Stmt. ¶¶ 24-26; Hubbard Aff. ¶¶ 6-7; Dkt. No. 22: Samouly Aff. ¶ 2; Briton Aff. Ex. 9: "Working at Sbarro: Restaurant Employees' Guide to Human Resource Policies, Rules & Guidelines"; Slaitane/Fall Aff. ¶ 11 & Ex. 3.)

 Slaltane's Complaints of Sexual Harassment

  On August 12, 2002, according to Sbarro, assistant manager Souraine Miticam criticized Slaitane for not being responsive to customers and for ignoring him, and also had store manager Fahti (aka Samouly) speak to her. (Dkt. No. 21: Sbarro 56.1 Stmt. ¶¶ 31-33; Dkt. No. 18: Miticam Aff. ¶¶ 3-5; Dkt. No. 16: Briton Aff. Ex. 13: 8/12/02 Warning Notice; Dkt. No. 22: Samouly Aff. ¶ 6.) Fahti told her she was insubordinate and that as a result he was cutting her hours fortwodays. (Sbarro 56.1 Stmt. ¶ 34; Samouly Aff. ¶ 6.) Slaitane denies Sbarro's version of events. (Slaitane/Fall Aff. ¶ 16.)

  Shortly after August 12, 2002, Slaitane complained to Sbarro management; Sbarro's Human Resources Director Bill Hubbard returned Slaitane's call and arranged for her Regional Manager, Souhaile Sara, to met with her. (Sbarro 56.1 Stmt. ¶ 35; Dkt. No. 20: Hubbard Aff. ¶ 19; Dkt. No. 19: Sara Aff. ¶¶ 1-2; Slaitane Dep. at 52-53.) Slaitane told Sara that she had been sexually harassed by Fahti. (Sbarro 56.1 Stmt. ¶ 36; Slaitane Dep. at 53-55.) Sara gave Slaitane a "Harassment Complaint" form to complete, which Slaitane did, as follows:
I'm Amal Slaitane. I'm working in store Sbarro 32 [320] 701 7th Ave a year ago between before and now. The problem is too bad, cause the store is big, must big [unclear]. And general manager the problem is the manager want make a relationship with me and sometimes he call me in the office and ask me for give him kiss. Give him appointment out with him. And every time I can't give him answer because he is my manager. I'm scared give my fire [says she meant "He fire me"] and he ask me for to live with him together and I can make relationship with him and from 4 August I gave him answer no he begin make cut my hours and he told, sorry for the word [bitch] in Arabic. And this week I must work 5 days and yesterday I went check my schedule I see 3 days. He cut my schedule. I'm working good. I respect my schedule because I love Sbarro and I love 47 701 over there. I feeding my family. I want help please for stay in 47 701. And you must give him transfer the general manager and every day he is coming working [4] hours and he don't punch out.*fn2
(Sbarro 56.1 Stmt. ¶ 38, quoting Briton Aff. Ex. 14 as explained by Slaitane Dep. at 56-58, 60; Slaitane/Fall Aff. ¶ 17.) Slaitane also wrote that Fahti "also gave [her] gift . . . $50 and hours, shoes, [phone] card." (Sbarro 56.1 Stmt. ¶ 39, quoting Briton Aff. Ex. 15, as explained by Slaitane Dep. at 60-61.)

  Sara told Slaitane to work at the 49th Street restaurant, Unit 897, while the matter was investigated. (Sbarro 56.1 Stmt. ¶ 40; Sara Aff. ¶ 2; Slaitane Dep. at 54-55.)

  According to Sbarro, on August 17, 2002, Slaitane gave Sara a handwritten note:

  I'm Amal Slaitane. I want to [write] of [th]e story between Fathi [and] my end everything is ok. [And] now I'm working in 49 [Street] Mama Sbarros and I have no problems [with] Fathi. (Briton Aff. Ex. 16; Sbarro 56.1 Stmt. ¶ 41; Sara Aff. ¶ 3; Slaitane Dep. at 61-62.) According to Slaitane, however, she wrote this one month after the investigation in order to return to work at 47th Street because she was not getting enough hours to work at 49th Street. (Slaitane Dep. at 62-63; Slaitane/Fall Aff. ¶ 18; see also page 8 below.)

  Slaitane worked at the 49th Street Sbarro's until the investigation had concluded (discussed below). (Sbarro 56.1 Stmt. ¶ 42; Sara Aff. ¶ 4.)

  Sara and Hubbard began their investigation into Slaitane's complaint on August 22, 2002 by having a second meeting with Slaitane and asking her to explain what had happened with Fahti. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 64.) Slaitane explained to them that Fahti had given her gifts, asked her for a kiss and to go out with him, and asked her to come to his home, and that when she finally rejected him, he had cut her hours. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 64-65.) Sara and Hubbard told her that they would speak to other workers to investigate her complaint. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 65.) Hubbard took notes of the conversation, including the above and also Slaitane's comment that she would not have done anything if her hours had not been cut; that she prefers the 47th Street store to 49th Street; and that she would feel comfortable going back to 47th Street, even if Fahti was still general manager. (Sbarro 56.1 Stmt. ¶ 44; Hubbard Aff. ¶ 11 & Ex. 41.)

  Following this meeting, Hubbard and Sara interviewed some of the witnesses Slaitane had identified; those employees generally said Fahti was a good manager while Slaitane was not a good employee and was rude with customers. (Sbarro 56.1 Stmt. ¶ 45; Hubbard Aff. ¶ 12 & Exs. 42-47.) Only Fall supported Slaitane, explaining that he personally had never heard Fahti ask Slaitane out but that he knew Slaitane had a problem with Fahti who had reduced her hours. (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) & Ex. 45.) Fall told them that when Slaitane told him that Fahti had asked her why she was "`going out with the black guy,'" meaning Fall, he met with Fahti, with Miticam and Angelo Sahadun present, and told Fahti not to refer to him as a "`black guy.'" (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) & Ex. 45.) Fall said that Fahti "confessed" that he had asked Slaitane out and that he was going to cut her hours and fire her. (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) & Ex. 45.) When Hubbard and Sara interviewed Miticam and Sahadun, however, they denied any such meeting with Fall and Fahti. (Sbarro 56.1 Stmt. ¶ 45(e)-(f); Hubbard Aff. ¶ 12(e)-(f) & Exs. 46-47.)

  Hubbard and Sara met with Fahti, who acknowledged giving Slaitane small gifts because he felt sorry for her but denied trying to have a personal relationship with her. (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 & Ex. 48.) To the contrary, Fahti said that when they had worked at the 33rd Street store, Slaitane had said she had nowhere to live, and asked if she could live with him, and he said no. (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 & Ex. 48.) Fahti identified a witness to this conversation, who confirmed Fahti's story when Hubbard and Sara interviewed him. (Sbarro 56.1 Stmt. ¶¶ 46-47; Hubbard Aff. ¶¶ 13-14 & Exs. 48-49.) Fahti explained that he had reduced Slaitane's hours because of the August 12 incident involving Miticam (described at page 4 above). (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 & Ex. 48.)

  After these meetings, Hubbard and Sara met with Slaitane again. (Sbarro 56.1 Stmt. ¶ 48; Hubbard Aff. ¶ 15 & Ex. 50; Slaitane Dep. at 69.) Slaitane denied that there had been an August 12 performance problem and insisted that her cut in hours occurred after she told Fahti that she would not have a relationship with him, but she could not identify any other witnesses to support her complaint. (Sbarro 56.1 Stmt. ¶ 48; Hubbard Aff. ¶ 15 & Ex. 50; Slaitane Dep. at 69.)

  Hubbard and Sara concluded that there was insufficient evidence to determine that Fahti had sexually harassed Slaitane. (Sbarro 56.1 Stmt. ¶ 49; Hubbard Aff. ¶ 16.) They advised Fahti, however, that giving Slaitane gifts gives rise to a potential perception of impropriety or favoritism and instructed him to discontinue such conduct toward Slaitane or any other employee; Fahti agreed. (Sbarro 56.1 Stmt. ¶ 50; Hubbard Aff. ¶ 17.)

  On September 4, 2002, Hubbard and Sara met with Slaitane for the third time, and advised her that the investigation was concluded and her complaint had not been corroborated. (Sbarro 56.1 Stmt. ¶ 51; Hubbard Aff. ¶ 18; Slaitane Dep. at 74-76; Slaitane/Fall Aff. ¶ 18.) According to Sbarro, Hubbard and Sara recommended that Slaitane continue at the 49th Street restaurant (Unit 897) where she had been working during the investigation, in the same position and for the same pay. (Sbarro 56.1 Stmt. ¶ 51; Hubbard Aff. ¶ 18.) Slaitane admits that they told her this, but says she did not want to stay at the 49th Street store because she was not getting enough hours to work there. (Slaitane Dep. at 74-75; Slaitane/Fall Aff. ¶ 18.) According to Sbarro, ...


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