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 ...