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United States District Court, S.D. New York

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 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 and Procedure.

  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., ¶¶ 36-37).

  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 and retaliatory.

  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. 1993).

  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, 252-53 (1981).

  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 allegations.
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 period he:
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 defendant.
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 sure —
Q. But did anyone tell you [sic] were being targeted for termination?
A. Not that I recall. I'm not really sure. I can't recall.
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 targeted.
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 work there?
A. It was Renaldo Martin.
Q. Anyone else tell you you didn't deserve to work there?
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 you?
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 Black.
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 Disparate Treatment

  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. 220:16-222:8).

  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 per week.

 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 Dismissed

  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 intent.

  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 M1000402).

  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 Exs. 21-23).

  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 claim).

  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 notice.

   It is so ordered.

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