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May 2, 2005.


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 dismissed.

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.

  Prior Proceedings

  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 ("NYHRL").

  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

  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 bar-back.

  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 bartenders.

  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:

 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

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 52:18-52:24.

  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 ...

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