United States District Court, S.D. New York
May 2, 2005.
TERRY ZEIGLER, Plaintiff,
MARRIOTT INTERNATIONAL, INC., Defendant.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Marriott International, Inc. ("Marriott") has moved
under Rule 56, Fed.R.Civ.P., for summary judgment dismissing
the discrimination complaint of Terry Zeigler ("Zeigler") arising
out of his discharge by Marriott on November 19, 2002. For the
reasons set forth below, the motion is granted, and the complaint
The issue presented is whether Marriott discharged Zeigler as a
result of progressive discipline or because of discrimination
based upon color. Also at issue is a charge by Zeigler that
Marriott had created a hostile working environment.
Zeigler filed charges with the U.S. Equal Employment
Opportunity Commission ("EEOC") that he was subjected to racial
harassment by managers of his department by unjustified
write-ups, truncated work schedules, and threats of termination,
and that after complaining about these conditions, he suffered
retaliation in the form of fabricated allegations, excessive
scrutiny and termination. Marriott did not answer these charges
and a right to sue letter based on that default was issued on
August 26, 2003. On September 30, 2003 Zeigler filed his complaint alleging
claims of racial discrimination based upon hostile work
environment, disparate treatment, retaliation, and discriminatory
discharge, alleging violations of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title
VII"), the Civil Rights Act of 1866, as amended, § 1981 ("§ 1981"
or "section 1981") and the New York Executive Law § 296
Zeigler alleged that Marriott's managers subjected him to
constant harassment and retaliated and discriminated against him
due to his "black race." Complaint at ¶ 14. Specifically, he
claims he was treated less favorably than similarly-situated
white employees by being given fewer shifts, issued more
disciplinary warnings, and ultimately terminated. See id. at ¶¶
14-16, 22, 26.
Discovery proceeded, and the instant motion was marked fully
submitted on January 12, 2005.
The facts are contained in Defendant's Statement Pursuant to
Local Rule 56.1; Plaintiff's Responses to Defendant's Rule 56.1
Statement and affidavits submitted by the parties. The facts are
not in dispute except as noted. Zeigler was hired by Marriott on October 28, 1987. According to
Marriott, he was hired to work as a bar-back in its Broadway
Lounge and was assigned by Marriott the corresponding primary
code, "Job CD No. 117600" and "Department 78900221G1." According
to Zeigler, he was hired as a steward and worked as a pot washer
until transferred to the Broadway Lounge where he worked as a
Zeigler never completed an application to change his primary
job, and thereby his primary code, throughout his tenure with
Marriott. According to Zeigler, he was never informed of his
code, or the procedure to change his code, and at no time did he
submit any form for that purpose.
According to Marriott, Zeigler began performing bartending
services, as a secondary job for Marriott on or about December
18, 1999 in Marriott's Atrium Lounge, and was assigned a
corresponding secondary job code of "Job CD 010800" and
"Department 78900221 G1." According to Zeigler he started
performing bartender services in 1989 and was paid as such.
Zeigler was assigned an additional secondary job code on or
about May 13, 2000, when he began bartending in Marriott's Sushi
"Katen" Bar, and was assigned an additional corresponding job
code of "Job CD 010800" and "Department 78900223 G3." Zeigler, as a bartender, a secondary position, did not have
seniority over any associate who was primary coded as a
bartender, according to Marriott. Zeigler has asserted without
documentary support that seniority was based on starting date and
that he and other employees so understood it.
Sherri Wasserstein ("Wasserstein") and Jennifer McLennan
("McLennan") were two of Zeigler's managers at Marriott in 2002,
and were charged with scheduling work shifts of Zeigler and other
associates. According to Marriott, Zeigler was scheduled
according to Marriott protocol and offered work shifts
commensurate with his seniority in his department, usually 3-4
shifts per week.
Zeigler has alleged he sometimes got one or two shifts a week
while others on standby or with less shifts got more and choice
shifts. Anthony Warren ("Warren"), Vincent Perroncino
("Perroncino"), James Scarito ("Scarito"), Michael Barruso
("Barruso"), Kenneth Yoeckel ("Yoeckel"), Steven Mendolia
("Mendolia"), and Ameer Yasin ("Yasin") are individuals that
Zeigler has stated were treated more favorably than he was.
Marriott charts summarizing the 2002 bartending work offered to
Zeigler, Warren, Perroncino, Scarito, Barruso, Yoeckel and Yasin
have been presented as well as the bar-back shifts offered to
Zeigler during this period. Warren was the most senior of the
eight associates mentioned above due to his long service as a bartender on the 8th Floor Complex and affiliate bars and
lounges within the hotel. In 2002, all of the associates named by
Zeigler except for Zeigler and Scarito were primary coded as
Mendolia was hired by Marriott on August 16, 1999 to work at
the hotel as a bartender. He voluntarily resigned from the hotel
on July 20, 2002. While employed by the hotel, he was always and
only coded as a bartender. During 2002 until his resignation,
Mendolia worked as a pool-status or "on-call" bartender.
The Marriott records are the basis of the following table:
2002 COMPARATIVE BARTENDING SCHEDULE
BARTENDER TOTAL TOTAL HOURS PER AVERAGE SHIFTS
NAME HOURS SHIFTS WEEK PER WEEK
Terry Zeigler 960.25 126 28.24 3.70
Michael Barruso 30 4 .90 .01
Vincent Perroncino 970.75 129 28.6 3.8
James Scarito 380.5 51 11.2 1.5
Anthony Warren 1,149 140 33.8 4.1
Amir Yasin 996 138 29.3 4.1
Kenneth Yoeckel 916 151 26.9 4.4 2002 COMPARATIVE BARTENDING SCHEDULE
(Terry Zeigler and Stephen Mendolia
BARTENDER TOTAL AVERAGE HOURS
NAME HOURS PER WEEK
Terry Zeigler 960.25 28.24 (960.25/34 weeks
(offered to work) (offered to work)
Stephen Mendolia 868.30 31.01 (868.30/28 weeks
(actually worked) (actually worked)
These numbers are challenged only by Zeigler's conclusory
statements to the contrary. (Dec. Zeigler, ¶¶ 12, 14, 15, 16).
Marriott avoided scheduling associates for overtime work unless
business demands made it a necessity. See McLennan Dec., ¶ 7.
After the events of September 11, 2001, and through virtually all
of 2002, overtime work was simply not necessary. To the extent it
was, it was offered first to those associates already working the
particular shift. See McLennan Dec., ¶ 8.
According to a contemporaneous memo, Zeigler refused bartending
shifts that were offered to him. See McLennan Dec., ¶ 10, Ex.
1. Zeigler has denied refusing any shifts offered to him. (Dec.
Zeigler, ¶ 72).
An associate at Marriott earns seniority only based upon the
date on which that employee begins work in the position for which
he or she is "primary coded" to work, his or her main job, in a
particular department. See Doherty Dec., ¶ 17. Associates at Marriott can have only one primary code, but up to five secondary
codes, or secondary jobs, at any given time. See Doherty Dec.,
¶ 16. No seniority is earned by an associate in any of his or her
secondary codes, except as compared to another associate assigned
with the same secondary code. See Doherty Dec., ¶ 17. In order
for an associate at Marriott to change his or her primary job,
the associate must formally apply for an advertised position
posted at Marriott. See Doherty Dec., ¶ 18; see also Marks
Dec., Ex. 4 at 46:17-49:9, Marks Dec., Ex. 5 at 65:7-66:9.
All associates within all departments across Marriott are
assigned their work shifts based on their respective seniority.
See Doherty Dec., ¶ 17; see also Marks Dec., Ex. 4 at
Zeigler has not challenged the Marriott description of its
seniority and assignment system but only stated that he had not
heard of the designation of primary and secondary codes and
understood only that the codes represented rates of pay. (Zeigler
Dec., ¶ 17). He never requested a designation to a new position
nor was he informed of the process. (Zeigler Dec., ¶ 18).
Marriott provides its hourly employees (or "associates") with
the Guarantee of Fair Treatment in connection with resolving
employees' workplace problems, complaints and/or concerns. See
Doherty Dec., ¶ 9. The Guarantee of Fair Treatment provides for,
among other things, an associate to appeal any issuance of discipline, from verbal warning through suspension, if that
associate believes such discipline was issued unfairly. See
generally Doherty Dec., Ex. 4.
Marriott had throughout Zeigler's employment with Marriott, an
Associate Resource Guide (or "Employee Handbook"), see Doherty
Dec. ¶ 3, detailing Marriott's general rules and practices and
policies regarding associate relations.
The first step in the Guarantee of Fair Treatment's appeal
process for an associate appealing a manager's issuance of
discipline is to appeal to the department head within ten days of
receipt. If the associate is not satisfied with the department
head's review and decision on the appeal, the associate can
appeal the discipline to the general manager or to the Peer
Review Panel, i.e., a panel of the associate's peers review the
discipline and render a majority decision. See id.
Marriott's Progressive Discipline Process follows a
step-by-step approach with respect to incremental discipline of
associates. See Doherty Dec., ¶¶ 6-8. Upon the first of its
kind or a minor infraction of Marriott's policies and/or
standards, a Marriott associate is likely to receive a Coach and
Counsel, a method by which a manager or supervisor merely confers
with the associate and seeks to correct the associate and remind
him or her of the shortcoming. See Doherty Dec., ¶ 6. A Record of Conversation, the next step after a Coach and
Counsel, but before a Verbal Warning, is meant to underscore to
the offending associate the need for compliance. See id.
The Verbal Warning is the first formal stage, Stage # 1 in
Marriott's Progressive Discipline process, and may serve as the
basis for issuance of a Written Warning, should the associate
repeat the offending conduct or infraction. See Doherty Dec., ¶
7; see also Exs. 1 at p. 21 and 3 at p. 2 to Doherty Dec. The
Written Warning is Stage #2 in Marriott's Progressive Discipline
Process, issued after the previous attempts at corrective
measures have failed, or if a first instance of a particularly
egregious violation warrants such a measure. See id. A Written
Warning remains active in the associate's personnel file for a
twelve month period.
After a second Written Warning within a twelve month period, an
associate is offered a Day of Decision, i.e., a paid day off
from Marriott for such associate to reevaluate his or her
commitment to the job as well as to Marriott's principles and
policies. See Doherty Dec., ¶ 8; see also Doherty Dec., Ex. 1
at p. 21. Typically, upon a third Written Warning within a twelve
month period an associate is automatically suspended pending
review for termination. See id. Marriott also has a detailed Non-Harassment Policy and
Procedure. See Doherty Dec., ¶¶ 13, Ex. 7; see also Doherty
Dec. Ex. 1 at pp. 38-39, including a strictly confidential
Harassment Questionnaire to be completed by an associate who
believes he or she is a victim of harassment. See Doherty Dec.,
¶ 14, Ex. 8.
Marriott has a detailed Equal Employment
Opportunity/Affirmative Policy Statement, see Doherty Dec., ¶
12, Ex. 6; see also Doherty Dec., Ex. 1 at p. 37, and a
Tardiness/Unscheduled Absence Policy and Procedure. See Doherty
Dec., ¶ 11, Ex. 5.
Any violation of Marriott's Hotel Basics, twenty guiding
principles for every Marriott associate to use every day in his
or her job, can serve as the basis for disciplinary action to be
taken against that associate, up to and including termination.
See Doherty Dec. Ex. 1 at pp. 3-7, 22-23.
Zeigler received multiple copies of the Employee Handbook
throughout his tenure with Marriott (Doherty Dec., Ex. 2) and was
aware of Marriott's Guarantee of Fair Treatment explained to him
by various Marriott managers. He utilized the procedures under
Marriott's Guarantee of Fair Treatment in partially appealing a
number of disciplinary actions taken against him. (Doherty Dec.
Exs. 12 and 18). In 1998, a female associate, after having a verbal altercation
with Zeigler, filed an internal complaint against him. (Doherty
Dec., ¶ 29, Ex. 11).
Zeigler was suspended on December 19, 2001 by his manager
Sheila Mongan ("Mongan"), and later issued a Written Warning by
Robert Miller ("Miller") on December 26, 2001 for violation of
Hotel Basic #1 in addition to other Marriott standards, in
connection with a telephone call Zeigler placed to the Marriott
Credit Union on December 19, 2001. See Doherty Dec., ¶¶ 31-32.
Zeigler accepted the Written Warning for violation of various
standards and practices at Marriott, choosing not to appeal
Miller's issuance of the warning to the general manager or to the
Peer Review Panel, as were his options under Marriott's Guarantee
of Fair Treatment. (Doherty Dec. Ex. 13). According to Zeigler,
Doherty and Richards told him he would not be reinstated unless
he accepted his manager's decision. Zeigler Dec., ¶ 38.
Zeigler does not challenge the existence of the written Warning
but has denied making the call and has noted that Miller is white
(Zeigler Dec., ¶¶ 23, 24), and that Zeigler's brother could have
initiated the call at issue (Zeigler Dec., ¶ 26). Further,
Zeigler asserts that other non-black employees were not
disciplined for more abusive language or conduct, specifying an
instance where a Sarah Buff, a white female server cursed him in
the presence of Martin Mariano, a white, senior beverage manager
who took no disciplinary action but required Buff to apologize. Lan Feng
committed a similar incident and received only a verbal warning
(Zeigler Dec., ¶ 27-29).
On February 16, 2002, Zeigler was issued a Written Warning by
Martin Mariano ("Mariano") for his absence from work without
notification on February 15, 2002 (Doherty Dec., Ex. 5-14, ¶ 32),
a violation of Marriott's Tardiness/Unscheduled Absence Policy
Zeigler was offered February 17, 2002 as a Day of decision by
McLennan, his manager, and he accepted. (Doherty Dec., ¶¶ 8 and
32, Ex. 1, p. 21, Ex. 14).
According to Zeigler, on May 4, 2002 McLennan and Zeigler had a
verbal exchange initiated by McLennan who used profane language,
which was overheard by a customer who wanted to speak with
McLennan's supervisor. Richards and Miller joined McLennan and
Zeigler (Zeigler Dec., ¶ 30-32). Richards asked McLennan to
apologize, she did, and Zeigler complained about being targeted
because he was black. (Zeigler Dec., ¶ 33). Zeigler did not file
a completed Harassment Questionnaire. (Doherty Dec., ¶ 4).
Zeigler was suspended, pending termination by Miller on
November 7, 2002, after a hotel guest, Stephen O'Shea ("O'Shea"),
a businessman with nearly thirty years experience in hotel and restaurant management, complained to Ronaldo Martin ("Martin") in
person and via letter about Zeigler's poor and inattentive
service on November 4, 2002 (Exs. 18 and 19, Doherty Dec., ¶¶
O'Shea also complained about Zeigler's poor and inattentive
service to Robert A. Jackson ("Jackson"), manager on duty, an
African-American, who in turn reported the incident to Vera
Sostre ("Sostre"), the director of human resources. (Doherty
Dec., Ex. 19, ¶ 25). O'Shea also complained about the unsanitary
practices of a bar-back, Joey Bunnecelli ("Bunnecelli"). See
Doherty Dec., Ex. 19
Zeigler was terminated from employment with the Marriott on
November 19, 2002. Marriott's general manager, Mike Stengel
("Stengel"), the director of food and beverage, Elaine Richard
("Richard") and the director of human resources, Sostre,
unanimously approved Zeigler's termination. Stengel and Richard
are Caucasian; Sostre is African-American. According to Marriott,
the termination resulted from the Marriott Progressive
Disciplinary Process. According to Zeigler it was discriminatory
Zeigler also has stated that the disciplinary record of
Bunnicelli, who is white, constituted disparate treatment in that
Bunnicelli received a Coach and Counsel on September 7, 2002,
after calling a black fellow employer a "nigger." (Zeigler Dec.,
¶ 34). Bunnicelli, also received a verbal warning on August 24 and
October 8, as well as a written warning on January 20, 2003,
followed by a verbal warning in April 2003 for leaving work early
and a Written Warning on May 22, 2003. He was terminated on June
3, 2003 after being late three hours on May 30, 2003. (Zeigler
Dec., ¶¶ 67, 68, Doherty Dec., Ex. 4, ¶ 44).
Bunnicelli also was disciplined by Miller for his violation of
Marriott's sanitary work practices and received a verbal warning
(Doherty Dec., Ex. 21, ¶ 42), at a time where he had two active
violations in his file, one a Coach and Counsel and the other a
verbal warning, and when he was not as far along through the
progressive discipline process as was Zeigler. (Doherty Dec., Ex.
22, ¶ 43). Stengel, Richard, Dennis Nau, Hotel Manager ("Nau")
and Doherty, signed off on Bunnicelli's termination. (Doherty
Dec., Ex. 23).
Zeigler has cited Palffy as another instance of disparate
treatment because Palffy received a second Day of Decision
instead of termination after another "call out" violation due to
tardiness. (Zeigler Dec., ¶ 69).
Summary Judgment Is Appropriate
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); SCS Communications, Inc. v. Herrick Co.,
Inc., 360 F.3d 329, 338 (2d Cir. 2004); see generally 11 James
Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed.
1997 & Supp. 2004). The court will not try issues of fact on a
motion for summary judgment, but, rather, will determine "whether
the evidence presents a sufficient disagreement to require
submission to comment jury or whether it is so one-sided that one
party must prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
Summary judgment is appropriate where the moving party has
shown that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994) (internal citations omitted). If, however, "`as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgement is improper.'"
Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village
of Depew, 75 F.3d 98, 107 (2d Cir. 1996). "The party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish her right to judgment as a
matter of law." Rodriguez v. City of New York, 72 F.3d 1051,
1060-61 (2d Cir. 1995). A material fact is one that would "affect
the outcome of the suit under the governing law," and a dispute
about a genuine issue of material fact occurs if the evidence is
such that "a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248; see also R.B.
Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus,
"[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, 477 U.S. at 248; see also Quarles
v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) ("[T]he
mere existence of factual issues where those issues are not
material to the claims before the court will not suffice to
defeat a motion for summary judgment.").
In determining whether a genuine issue of material fact exists,
a court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d
Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon
reviewing the evidence in the light most favorable to the
non-movant, the court determines that there is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.
The non-movant cannot escape summary judgment "merely by
vaguely asserting the existence of some unspecified disputed
material facts, or defeat the motion through mere speculation or
conjecture," Western World Ins. Co. v. Stack Oil, Inc.,
922 F.2d 118, 121 (2d Cir. 1990) (internal quotation marks and
citations omitted); accord Giordano v. City of New York,
274 F.3d 740, 749-50 (2d Cir. 2001), particularly where such
speculation is unsubstantiated. See Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the
non-movant must invoke more than just "metaphysical doubt as to
the material facts." Matsushita Elec. Indus., 475 U.S. at 586,
106 S.Ct. 1348.
In order to defeat a motion for summary judgment, the
non-moving party must offer sufficient evidence to enable a
reasonable jury to return a verdict in its favor. See Anderson,
477 U.S. at 248; Byrnie, 243 F.3d at 101; Scotto,
143 F.3d at 114. In other words, the non-moving party "may not rely simply on
conclusory statements or on contentions that the affidavits
supporting the motion are not credible." Ying Jing Gan v. City
of New York, 996 F.2d 522, 532 (2d Cir. 1993); accord Scotto,
143 F.3d at 114-15. The Title VII Claim Is Dismissed
The United States Supreme Court has articulated the framework
regarding the burden, order and allocation of proof necessary for
a discrimination case under Title VII. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993). The procedure is a three-part
process utilizing the well-settled pretext formulation. See,
e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
First, plaintiff must prove by a preponderance of the evidence
a prima facie case of discrimination. Only if the plaintiff
meets this initial burden will the burden then shift to the
defendant to show evidence that the adverse employment actions
were taken for some legitimate non-discriminatory reason.
Burdine, 450 U.S. at 254-55. If the defendant articulates a
legitimate non-discriminatory reason for its action, "the
presumption raised by the prima facie case is rebutted, and
drops from the case." St. Mary's Honor Ctr., 509 U.S. at 507
(quoting Burdine, 450 U.S. at 255, n. 10). At this point, the
plaintiff has the final burden to demonstrate by a preponderance
of the evidence that the articulated reason offered by the
defendant for the adverse employment actions is merely a pretext
for discrimination. Scott v. Fed. Res. Bank of New York,
704 F.Supp. 441 (S.D.N.Y. 1989) (granting defendant summary
judgment). A. Zeigler Has Not Overcome the Marriott Showing With
Respect to the Work Environment
Zeigler appears to allege a claim against Marriott for
subjecting him to a hostile work environment based on race, in
violation of both Title VII and the NYHRL.
In order for Zeigler to prevail on a hostile work environment
claim,*fn1 he must demonstrate that "the workplace is
permeated with discriminatory intimidation, ridicule and insult . . .
that is sufficiently severe or pervasive to alter the
conditions of the victim's employment." Tomka v. Seiler,
66 F.3d 1295, 1305 (2d Cir. 1995), rev'd on other grounds,
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)); see also Meritor Sav. Bank v. Vinson, 477 U.S. 57,
65-67 (1986). In addition, Zeigler must show that "a specific
basis exists for imputing the conduct that created the hostile
work environment to the employer." Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997) (quoting Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (quotation
omitted)). More specifically, Zeigler must show that the conduct
at issue was so severe or pervasive as to have created an
objectively hostile or abusive work environment and that the victim subjectively perceived the environment to have been
abusive. Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993).
In his complaint, Zeigler generically alleges that he:
was subjected to . . . constant harassment by
[Marriott's] managers being frequently issued with
unjustified write-ups, and being suspended several
times and then terminated on the basis of false
Marks Dec. Ex. 1, ¶ 14. Zeigler also alleges that he was:
subject to constant harassment by some managers in
his department, and in particular by, Robert Miller
and Ronaldo Martin. He was issued with many
fabricated and unjustified write-ups by these
managers and was constantly threatened with
termination by them. During the 10 months [sic]
period before his termination, plaintiff was written
up by Miller and Martin almost on a weekly basis
until he was eventually terminated.
Id. at ¶ 17. Further, Zeigler alleges that during this same
was told regularly by Miller that plaintiff did not
deserve to be employed with the defendant. Also, on
or about July 30, 2002, Ronaldo Martin told plaintiff
that he did not belong in their workplace, was
unwanted there, and that he would get rid of
plaintiff at any opportunity. Mr. Martin added that
plaintiff was making too much money and that
plaintiff being from the projects, did not deserve
the money he was making from working for the
Id. at ¶ 18. During his deposition, Zeigler testified as follows when asked
about his hostile work environment claim:
Q. . . . Did anyone tell you [sic] were being
targeted for termination?
A. Well, actually, no. No one told me that I was
being targeted, but there were words going around in
the Department, but no one specifically came and told
me that this person was out to get you.
Marks Dec., Ex. 3, p. 129:8-14.
Q. Did anyone tell you whether you were being
targeted for termination?
A. No, sir.
* * *
A. I felt I was being targeted but I am not really
Q. But did anyone tell you [sic] were being targeted
A. Not that I recall. I'm not really sure. I can't
Id. at 129:20-130:9.
Q. Did anyone tell you, you were being targeted
because you were Black?
A. No one actually told me that, but I've it's been
comments made from managers, Martin and Burt Miller,
saying that I didn't deserve to be there, being that
I was from the projects.
Q. Did either of those individuals ever tell you that
you were being targeted? A. They didn't actually tell me that I was being
targeted, but they said I didn't deserve to be there,
so I felt that that was them saying that I was being
Q. Did either of those supervisors ever tell you that
you were being terminated because you were Black?
A. No, sir, not that I recall, but being the remarks
they were making, I just felt that, you know, that's
what they were trying to do.
Q. Who was it that told you you didn't deserve to
A. It was Renaldo Martin.
Q. Anyone else tell you you didn't deserve to work
A. Well, we had a meeting one time, and the whole
department had witnessed it, when Burt Miller said
that he didn't want any of the Bar-backs there
anymore; he wanted all of us out, he had his whole
crew ready to come in and take over, being he was
from Long Island; he knew his own personal friends
and relatives that needed the position, so he wanted
to like clean house and start all over again.
Q. My question is did anyone, other than Renaldo
Martin, tell you that you didn't belong deserve to
work at the Marriott?
A. That was the only one that came directly out and
said that to me.
Id. at 130:18-132:8 (emphasis added).
* * *
Q. Other than Burt [Miller] allegedly messing up your
schedule and taking seniority from you, what else did
Burt do, that you believed discriminated against you?
A. I'm not really sure. I can't really recall
anything else right now. Q. What else did Renaldo do to discriminate against
A. Renaldo was just with Renaldo it was just a lot
of harassment. He would come and harass you during
the busiest part of the day, coming up talking,
saying how he didn't want you here; everybody
complaining about you, and you don't even have nobody
over here to serve, all of the complaints were coming
from the other side of the bar. So, some of the
remarks that Renaldo made, the comments he made
towards me, I felt that he did that because I was
Id. at 218:6-219:10.
Q. Other than the harassment, and him writing you up
in the fashion that you mentioned what else did
Renaldo [Martin] do to discriminate against you?
A. I know he it was just humiliating, the way he
was treating me, and I felt that was coming up
because I was Black. It could be some other things,
and I'm not really clear or sure what it was.
Id. at 220:4-12 (emphasis added).
Even if Zeigler can show that his supervisors were
ill-tempered, abusive, harassing and unreasonable, and issued him
many unjustified write-ups, he has not established that he was
discriminated or intimidated by them based on his race.
Zeigler's opposition brief does not mention, let alone address,
Marriott's argument that he cannot establish a prima facie
hostile work environment claim. As such, to the extent Zeigler alleged such a claim in his complaint, it now should be deemed
irrevocably abandoned and dismissed.*fn2 See Diaz v. Weill
Med. Ctr. of Cornell Univ., No. 02 Civ. 7380 (AJP), 2004 WL
285947, at *20 (S.D.N.Y. Feb. 13, 2004); see also Arias v.
NASDAQ/AMEX Mkt. Group, No. 00 Civ. 9827 (MBM), 2003 WL 354978
at *13 (S.D.N.Y. Feb. 18, 2003) (deeming claims abandoned and
granting summary judgment; Anyan v. New York Life Ins. Co.,
192 F. Supp. 2d 228, 237 (S.D.N.Y. 2002) (same); Douglas v. Victor
Capital Group, 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (same).
B. Zeigler Has Not Established A Prima Facie Claim Of
In order for Zeigler to meet his burden of establishing a
prima facie case of disparate treatment based on race, he must
show: (1) he was treated differently, (2) from a person of
another race, color, gender, religion or national origin, (3)
where the defendant intended to discriminate, and (4) where the
defendant's intent to discriminate caused the difference in
plaintiff's treatment.*fn3 Anderson v. Anheuser-Busch,
Inc, 65 F. Supp. 2d 218, 228 (S.D.N.Y. 1999) (quoting Taylor v. Runyon, No. 97 Civ. 2425
(RWS), 1997 WL 727488, at *5 (S.D.N.Y. Nov.20, 1997)); Dorrilus
v. St. Rose's Home, 234 F. Supp. 2d 326, 333 (S.D.N.Y. 2002).
Zeigler cannot show any of those elements.
While Zeigler alleges that he was treated differently than
similarly-situated white bartenders with respect to shifts,
overtime, and discipline, the evidence shows he was not.
Specifically, Zeigler complains of having been given fewer shifts
(or "scheduling") and overtime opportunity and given more and
harsher disciplinary measures than similarly-situated white
employees. (Marks Dec., Ex. 1 at ¶ 14). Zeigler, however,
testified that Marriott treated him fairly and did not
discriminate against him with respect to his requests and grants
for leave of absence. (Marks Dec., Ex. 3, p. 202:25). Zeigler
also testified that he did not believe Mariano, one of his
supervisors, discriminated against him. (Marks Dec., Ex. 3, p.
Zeigler has not established that anyone at Marriott intended to
discriminate against him. Zeigler's bald assertions that Marriott
classified its employees on the basis of race with respect to
work assignments and discipline are "mere conclusory allegations,
speculation and conjecture [that] will not avail a party
resisting summary judgment." Dorrilus, 234 F. Supp. 2d at 334 (granting defendant summary judgment on disparate treatment
claim) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51
(2d Cir. 1996)). No facts have been adduced to establish work
assignment and discipline based upon color.
Zeigler has not met his initial burden in proving
discrimination based on race with respect to scheduling because,
among other things, he cannot demonstrate (i) that he was subject
to an adverse employment action and/or (ii) that the adverse
employment action occurred in circumstances giving rise to an
inference of discrimination on the basis of his being black. See
McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973); accord
Rumph v. New York City Transit Auth., No. 01 Civ. 1653 (RLE),
2002 WL 1334797 (S.D.N.Y. June 13, 2002) (granting summary
judgment against black plaintiff); Adeniji v. Admin. for
Children Servs, NYC, 43 F. Supp. 2d 407 (S.D.N.Y. 1999) (same).
In his opposition papers, Zeigler suggests that Marriott began
discriminating against him sometime in or after 1999 after the
appointment of white managers. (Zeigler Dec., ¶ 19). According to
his complaint and sworn discovery responses, however, Zeigler did
not have any issues with respect to bartending*fn4
scheduling or offers of work until 2002. For example, in
Zeigler's sworn interrogatory responses he states: [p]rior to January 2002, Plaintiff worked 4-5 nights
per week for Defendant as a Bartender in the Atrium
Lounge. As alleged in the complaint, in January 2002,
Plaintiff's schedule was cut on account of racial
discrimination from 4-5 nights per week to 2-3 nights
Sokol Dec., Ex. 1, 39. This statement is similar to the
allegations in his complaint wherein Zeigler alleges that
"[b]eginning on or about January 2002 . . . plaintiff was
constantly scheduled to work 1-2 days a week while White
bartenders were regularly scheduled for 4-5 days a week." (Marks
Dec., Ex. 1, ¶ 16). Both statements constitute admissions and
limit his potential claims regarding scheduling to 2002.
In his initial disclosures, Zeigler did not disclose Ameer
Yasin as a person with relevant knowledge of his claims. (Sokol
Dec., ex. 2). Similarly, in his sworn interrogatory responses
Zeigler did not mention Yasin at all, let alone as a person who
was treated or disciplined differently and/or more favorably than
he was. (Sokol Dec., Ex. 1, pp. 29-32). Finally, during his
deposition Zeigler did not testify that Yasin was a person who
was treated more favorably than he was with respect to
scheduling. (Sokol Dec., Ex.3, 224:22-239:16).
Similarly, in his sworn interrogatory responses Zeigler did not
mention Barruso as a person who was treated or disciplined
differently and/or more favorably than he was. (Sokol Dec., Ex.
1, pp. 29-32). Even if Yasin and Barruso are included as
comparatives, the facts described above show Zeigler received hours and shifts
that were comparable to both Yasin and Barruso.
Over nearly a nine month period in 2002, Zeigler was offered
bartending work consisting of a total of 126 shifts covering a
period of 960.25 hours. As a bartender in 2002, Zeigler was
offered an average of 3.7 shifts per week and weekly hours
averaging 28.24. (Sokol Dec., Ex.5, p. 4). In fact, Zeigler's
schedules reveals that out of the 34 weeks contained in the
chart, Zeigler was scheduled to work five shifts in seven of
those weeks and four shifts in 18 of those weeks. (Sokol Dec.,
Ex. 5). This information is consistent with the summary of a
telephone conversation with Zeigler in 2002 which states:
In response to his request of being scheduled 5
shifts as opposed to 4, I made him aware of the fact
that his usual Wednesday evening shift would now be
covered by Sammy and Kenny as they both have more
seniority. The only other available shift would be
Wednesday matinee at 11:00 in Broadway. I told Terry
that if he wanted this shift as his 5th shift it was
his. Terry declined the offer and said he did not
want this shift. He would keep his 4 shifts . . .
McLennan Dec., Ex. 1.
Comparing the shifts and hours offered to Zeigler with the
shifts and hours offered to Barruso reveals that Zeigler had
substantially more hours and shifts than Barruso. Comparing the
shifts and hours offered to Zeigler with the shifts and hours offered to the other individuals about whom Zeigler complained
shows the following: (i) Zeigler had nearly identical numbers as
Perroncino; (ii) Zeigler had approximately two and a half times
the overall work of Scarito; and (iii) Zeigler had more shifts
than Yoeckel. (Sokol Dec., Ex. 13). When compared to Yasin,
Zeigler was offered only 35.25 hours less over a 34 week period,
a difference of only 1.03 hours per week. (Sokol Dec., Ex. 13).
Although Warren's numbers are higher than Zeigler's, this
reflects Warren's seniority. See Doherty Supp. Dec., ¶ 9.
The relatively minor differences in the schedules as reflected
in the documentary evidence fail to establish discrimination
particularly when the contemporary documentary evidence notes
that Zeigler refused to work certain shifts. See McLennan Dec.,
Ex. 1, at ¶ 10. Where, as in the instant matter, a system of
assignment of shifts and work hours is given to fluctuation due
to, among other reasons, employees' personal obligations and
customer demands, small differences between one employee's
schedule and that of another is not a basis for an employment
discrimination claim. See Verone v. Catskill Reg'l Off-Track
Betting Corp., 10 F. Supp. 2d 372, 375-76 (S.D.N.Y. 1998)
(granting summary judgment where schedules indicated plaintiff's
average work hours were not substantially less than those of
other cashiers).*fn5 The statistics reveal that Zeigler did not suffer a
"deprivation of opportunity or position" or a "materially
significant disadvantage." Lumhoo v. Home Depot USA, Inc.,
229 F. Supp. 2d 121, 138 (E.D.N.Y. 2002) (granting defendant summary
judgment with respect to plaintiff's disparate treatment claims).
C. The Claim Based On Disparate Disciplinary Treatment Is
Any disagreement that Zeigler may have with how Marriott
implemented its disciplinary policy with respect to him and
others, and whether such policy was always administered in an
error-free manner does not establish Zeigler's case, unless the
evidence establishes that the reason for such inconsistencies was
race-based. See, e.g., Demonte v. Chem. Bank, No. 93 Civ.
3742 (RPP), 1994 WL 364068, at *5 (S.D.N.Y. July 13, 1994) ("An
employer has the prerogative to be shortsighted and narrowminded
as long as her or his decisions are not based upon discriminatory
intent") (citing Stanojev v. Ebasco Servs., Inc., 643 F.2d 914,
920-21 (2d Cir. 1981)); Wechsler v. RD Mgmt. Corp.,
861 F. Supp. 1153, 1160 (E.D.N.Y. 1994) (finding no basis for liability
"even if defendant was incorrect in its assessment of
[plaintiff's] capabilities.") (citing Burdine, 450 U.S. at 253
(1981)). Zeigler has not made such a showing. When Marriott terminated Zeigler in 2002 it did not consider
the verbal warning that was issued to him on June 16, 2001 for
being more than six minutes late three times in a thirty-day
period (Doherty Dec., Ex. 9) because this infraction fell outside
the twelve month active infraction time period at the time of his
November 2002 termination. See Doherty Dec., ¶¶ 5-8. This
infraction, therefore, and Zeigler's allegations of similar
infractions by Palffy, Buff, Scarito, Tajima-Post and Perroncino
resulting in lesser discipline do not establish the necessary
Further, consideration of Zeigler's June 16, 2001 infraction
would not raise a material question of fact when comparing it to
the infractions of the other individuals. The warning given to
Zeigler on June 16, 2001 was warranted because Marriott's policy
states that "progressive discipline may be implemented" when,
like Zeigler, an associate is thrice late more than six minutes
three times within a thirty-day period. (Doherty Dec., Ex. 5, at
Despite the discretionary nature of this discipline, Palffy and
Buff were also disciplined for the same infraction as Zeigler. On
February 14, 2001 Buff was issued a Record of Conversation and
then a verbal warning on March 24, 2001 by Wasserstein. (Zeigler
Dec., Exs. 2 and 4). Palffy also received a Record of
Conversation from McLennan on February 12, 2001 for the same infraction. Buff and Palffy were not similarly situated to
Zeigler "in all material respects" with respect to these
incidents because their discipline was administered by different
managers. See, e.g., Shumway v. United Parcel Serv.,
118 F.3d 60, 64 (2d Cir. 1997); Cruse v. G & J USA Publ'g,
96 F. Supp. 2d 320, 330 (granting summary judgment against plaintiff
and reasoning that "[m]ost importantly, for other employees to be
considered similarly situated, they must have reported to the
same supervisor as plaintiff.").
Zeigler has relied upon the Written Warning for his "no call/no
show" on February 16, 2002 (Doherty Dec., Ex. 14) as exemplifying
discrimination because Scarito and Post received only a Coach and
Counsel for allegedly having three "call outs" in a
sixty*fn6 day period. (Opp. Mem. 16-19). Notwithstanding
Zeigler's statement that three call-outs within a sixty day
period "was regarded as serious as a no call/no show," (Opp. Mem.
P. 16, Ex. 5, Doherty Dec.), an examination of the discipline
issued to both Scarito and Post (Zeigler Dec., Ex. 5-6) reveals
that on the dates each received a Coach and Counsel, each of them
had only two active call-outs, not the three required by
Marriott's policy (Doherty Dec., Ex. 5). In any event, discipline
for such a violation is discretionary, whereas even a single no
call/no show such as that committed by Zeigler requires that the employee "receive a
Written Warning." (Doherty Dec., Ex. 5, at M1000403).
Zeigler also has cited Perroncino's file and suggested that
Perroncino should have received an "automatic disciplinary
warning" for coming to work late. (Opp. Memo, p. 17). While
Perroncino did receive a Written Warning on May 15, 2002 from
Wasserstein for his second lateness of more than an hour in just
several days, (Zeigler Dec., Ex. 8), the verbal warning he
received on May 13 (Zeigler Dec., Ex. 9) from Mariano for a
similar offense was appropriate as Marriott's policy dictates
that "associates who clock in more than one hour late may receive
a Written Warning if warranted. The manager may waive this
disciplinary measure. . . ." (Doherty Dec., Ex. 5 at M1000402).
As such, either of these managers would have been following
Marriott's policy even if each had chosen not to discipline
Perroncino at all.
On November 3, 2002, Perroncino received a written warning for
a no call/no show, the same degree of discipline Zeigler received
nine months earlier on February 16, 2002 for his no call/no show.
(Doherty Dec., Ex. 14). Zeigler has cited the Coach and Counsel
issued to Perroncino on November 26, 2002 and suggests it should
have been a more serious disciplinary warning, and compares
Perroncino's infractions to Post who received stricter punishment
for a similar violation. (Zeigler Dec., Ex. 11-12). However,
Mariano issued the discipline to Perroncino, and Mongan issued the discipline to Post. Thus, Perroncino and Post were not
similarly-situated "in all material respects." See, e.g.,
Shumway, 118 F. 3d at 64; Cruse, 96 F. Supp. 2d at 330.
Zeigler has cited the discipline received by Bunnicelli, (see
Zeigler Dec., ¶¶ 36, 66 and Opp. Memo., P. 18, 20), a former
bar-back, not a bartender as Zeigler now asserts, (compare Opp.
Memo, p. 18 with Ex. 1, Marks Dec., ¶¶ 21-22 and Doherty
Dec., ¶¶ 42-44), and contends that Bunnicelli used a racial
epithet towards another employee that was the basis for the
discipline received by Bunnicelli on September 10, 2002. (Opp.
Memo. at p. 18, Ex. 22, Doherty Dec.). There is no documented
basis for Zeigler's version of the facts.
In any event, Bunnicelli received a verbal warning on August
24, 2002 and again on October 8, 2002, and not a Written Warning
for the latter violation because the infractions were unrelated.
(Opp. Memo, p. 19, Exs. 21-22, Doherty Dec.). As with Perroncino,
Zeigler's own calculations and evaluations concerning
Bunnicelli's disciplinary history at Marriott are self-serving
and contrary to the documentary evidence. Bunnicelli was
terminated on June 3, 2003 in accordance with Marriott's
progressive disciplinary process. (Doherty Dec., ¶¶ 42-44 and
As to the Credit Union incident, the Marriott managers in
Washington, DC did not work with Zeigler. Zeigler has alleged
that he sought to appeal the Credit Union warning but was told if he
did so he would be terminated. (Zeigler Dec., ¶ 38). Zeigler did
in fact partially appeal the decision which was reviewed by
Sostre, an African-American. (Doherty Dec., Ex. 12, ¶ 26).
Martin, who was one of Marriott's managers (Marks Dec., Ex. 1,
¶¶ 17, 18, Opp. Memo., p. 30) and according to Zeigler was
involved in the O'Shea incident, identified himself as "Black"
when asked by Marriott's counsel, "Do you consider yourself
Hispanic, Black or something else?" (Sokol Dec., Ex. 4,
43:16-43:18). Under these circumstances, Zeigler has not
established even a prima facie case with respect to disparate
treatment in termination. See Sykes v. Mt. Sinai Med. Ctr.,
967 F. Supp. 791, 797 (S.D.N.Y. 1997) (granting summary judgment
against African-American plaintiff where "defendant has
introduced enough evidence regarding plaintiff's history of
troubled relations . . . to make it impossible to raise a genuine
issue of material fact simply by relying on the fact that
[different] employees were not given the same discipline. This is
especially so when the person making the decision to terminate
plaintiff and retain [the non-African-American employee] was
himself an African-American.").
Zeigler's examples do not demonstrate that he was treated
differently, let alone more severely, than similarly-situated
non-black employees with respect to discipline and termination.
No reasonable fact-finder could use the aforementioned
comparisons as a basis to conclude that Zeigler was either similarly situated
with those to whom he compares himself or that their conduct was
even similar to his. See Vara v. Mineta, No. 01 Civ. 9311
(RJH), 2004 WL 2002932, at *8-9 (S.D.N.Y. Sept. 7, 2004)
(granting summary judgment on plaintiff's disparate treatment
D. The Claim Of Retaliation Is Dismissed
Zeigler has alleged that May 4, 2002 was the date following his
charge of discrimination when Marriott's retaliation against him
began. (Opp. Memo., pp. 21, 34). By this date, however, Marriott
already had issued to Zeigler two Written Warnings that formed
the basis for Zeigler's termination. (Doherty Dec., Ex. 9).
Moreover, Zeigler has not established that any disciplinary
events that occurred after May 4 were causally connected to his
alleged complaints of discrimination.
Even if Zeigler could establish a prima facie case of
retaliation, Marriott has established legitimate, non-retaliatory
reasons for disciplining and terminating Zeigler based upon its
Progressive Disciplinary Policy, and he has not established that
the administration of the policy was pretextual. Zeigler was
"obliged to produce not simply some evidence, but sufficient
evidence to support a rational finding that the legitimate,
non-discriminatory reasons proffered by the employer [are] false,
and that more likely than not [retaliation] was the real reason
for the discharge." Adeniji, 43 F. Supp. 2d at 429 (quoting Van Zant,
80 F.3d at 714 (internal quotations and citations omitted)
(granting summary judgment with respect to race-based retaliation
claim). One court in granting summary judgment described a
plaintiff's attempt to create a material issue of fact over her
discharge, as follows:
. . . Simply because (1) some [co-workers] had
complaints about [plaintiff], and (2) [plaintiff] is
African-American, does not impel the conclusion that
(3) those [co-workers] had misgivings about
[plaintiff] because she is African-American. This is
the type of groundless speculation that summary
judgment is designed to root out.
Richardson v. Newburgh Enlarged City Sch. Dist.,
984 F. Supp. 735, 744 (S.D.N.Y. 1997) (granting summary judgment).
Zeigler has not shown evidence of a causal connection between
his alleged complaints of discrimination and the adverse action
taken against him. See Griffin v. Ambika Corp.,
103 F. Supp. 2d 297, 312 (S.D.N.Y. 2000) (granting defendants summary judgment on
African-American plaintiffs' retaliation claims, explaining that
"timing alone is insufficient to meet plaintiff's prima facie
burden of showing retaliation burden" and that "the extensive
record created by defendants demonstrate that defendants were
taking "clear steps" to [plaintiffs'] termination long before
[one plaintiff] filed her formal complaint."). Although Zeigler has alleged in conclusory fashion that
Marriott retaliated against him for complaining about
discrimination, the evidence has established that his co-workers
complained to management about him, as did a hotel guest, and
Marriott managers who were working at different locations.
The 42 U.S.C. § 1981 Claim Is Dismissed
Discrimination claims brought under § 1981 are measured within
the same analytical framework as those brought under Title VII
and the NYHRL. See Dais v. Lane Bryant, Inc.,
168 F. Supp. 2d 62, 71 (S.D.N.Y. 2001). To establish a § 1981 claim, a plaintiff
must show "(1) that [he] is a member of a racial minority; (2) an
intent to discriminate on the basis of race by the defendant; (3)
that the discrimination concerned one or more of the activities
enumerated in § 1981." Griffin, 103 F. Supp. 2d at 315 (citing
Lauture v. I.B.M. Corp., 216 F.3d 258, 261 (2d Cir. 2000)).
For the same reasons Zeigler is unable to establish a claim
under Title VII and the NYHRL, he also is unable to create a
triable issue of fact and avoid summary judgment on his claim
brought under § 1981. Id. Conclusion
Marriott has established facts that demonstrate the absence of
a hostile environment and the failure of Zeigler's claims. Its
motion to dismiss the complaint is granted. Submit order on
It is so ordered.