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Augustin v. Yale Club of New York City

September 15, 2006

NIRVA AUGUSTIN, PLAINTIFF,
v.
THE YALE CLUB OF NEW YORK CITY, DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION & ORDER

On March 19, 2003, Plaintiff Nirva Augustin ("Augustin") filed an employment discrimination action against Defendant The Yale Club of New York City ("Yale Club" or "Club"),*fn1 stemming from her employment as a member of the Yale Club wait-staff, alleging that Plaintiff was the victim of a sexually and/or racially hostile work environment, was retaliated against for complaining about the hostile environment, and was wrongfully terminated as a result of her sex and race.*fn2 (Compl. 1-5) After discovery closed, Defendant filed a Motion for Summary Judgment seeking to dismiss Plaintiff's Complaint in its entirety, pursuant to Fed. R. Civ. P. 56. For the reasons stated below, Defendant's Motion for Summary Judgment is granted in its entirety.

I. Facts

A. Plaintiff's Failure to Comply With Local Rule 56.1

Under Local Rule 56.1 of the Local Civil Rules of this Court, a movant is required to submit a "short and concise statement . . . of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). The Rule also requires that the papers opposing a motion for summary judgment should include paragraphs corresponding to the statements of the moving party and "if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Civil Rule 56.1(b). Unless "specifically controverted" by the opposing party's statement, all material facts set forth in a movant's 56.1 statement "will be deemed to be admitted." Local Civil Rule 56.1(c). The Rule also requires that "[e]ach statement of material fact by the movant or opponent . . . including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible . . . ." Local Civil Rule 56.1(d).

A proper Rule 56.1 statement in opposition to a motion for summary judgment must respond in a "'paragraph-by-paragraph response to the movant's 56.1 statement,'" alerting the court as to what facts, if any, the non-movant contends there exists a genuine issue of dispute. Gallimore-Wright v. Long Island R.R., 354 F. Supp. 2d 478, 482 (S.D.N.Y. 2005) (quoting Rodriguez v. Schneider, No. 95 Civ. 4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999)). While a non-movant can submit a separate statement, apart from the paragraph-by-paragraph response, "'this separate statement is not a substitute for the paragraph-by-paragraph response. The non-movant, particularly if represented by counsel, should not leave it to the court to cull from this separate statement the pieces of evidence which would support the contentions of the non movant asserted in its paragraph-by-paragraph response without citation.'" Id. at 483 (quoting Rodriguez, 1999 WL 459813, at *1 n.3).

In this case, Defendant has submitted a thirty-three page Rule 56.1 statement containing eighty-seven numbered paragraphs, each of which properly cites evidence in the record. Plaintiff's Rule 56.1 statement paragraphs do not correspond to Defendant's paragraphs. In addition, Plaintiff's paragraphs, treated as "additional paragraphs," do not not respond to any of Defendant's paragraphs with admissible evidence. Instead, Plaintiff submitted a thirty-four paragraph 56.1 statement, wherein each statement either does not dispute Defendant's 56.1 statements, or cites for support to an affidavit submitted by Plaintiff that contradicts her earlier testimony given in her lengthy deposition. It is well-accepted that a plaintiff cannot create issues of fact by submitting an affidavit to the Court contradicting her prior deposition testimony. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999) ("It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that . . . contradicts the affiant's previous deposition testimony.") (internal quotations and citation omitted); Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("The rule is well-settled in this circuit that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." (collecting cases)); cf. Palazzo v. Corio, 232 F.3d 38, 43-44 (2d Cir. 2000) (holding that the principle that a party who testified to a given fact in a deposition cannot create triable issue on summary judgment by submitting affidavit denying a fact "does not apply if the deposition and the later sworn statement are not actually contradictory . . . [,] where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition," or where the, "testimony is contradicted by evidence other than the deponent's subsequent affidavit"). Thus, to the extent the assertions in Defendant's Rule 56.1 statements are supported by admissible evidence, and otherwise uncontroverted by admissible evidence, the Court accepts them as true. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (failure to respond to a moving party's Rule 56.1 Statement may mean that the uncontested facts contained therein will be assumed to be true for the purposes of the motion if such facts are properly supported by citations to admissible evidence); Gallimore-Wright, 354 F. Supp. 2d at 483 (admitting facts asserted by movant that properly cited to admissible evidence and were not responded to by non-movant).

B. The Evidence

1. Background

The Yale Club is a private social club in Manhattan that provides a variety of facilities to its members, including the use of its three restaurants -- the Roof Dining Room, the Tap Room, and the Grill -- as well as its banquet rooms for private parties. (Aff. of Keith Mazanec ¶ 3 ("Mazanec Aff."); Def.'s 56.1 Statement ¶ 1) The Yale Club had a harassment-free and anti-retaliation workplace policy throughout the relevant time period in the Complaint. (Mazanec Aff. Ex. 2, at 23; Diane Krebs Decl. Ex. B ("Krebs Decl."); Def.'s 56.1 Statement ¶ 3) Plaintiff signed an acknowledgment form at the beginning of her employment indicating that she received a copy of the Yale Club's Sexual Harassment Policy. (Mazanec Aff. Ex. 5; Def.'s 56.1 Statement ¶ 3) Plaintiff also admitted she received a copy of the Yale Club's Equal Employment Opportunity Policy from the Human Resources Director, Ruth Ormston ("Ormston"), during Plaintiff's first year of her employment at the Yale Club. (Krebs Decl. Ex. B; Augustin Tr. 399-400; Def.'s 56.1 Statement ¶ 3)

All Yale Club waiters are represented by Local 6 of the Hotel, Restaurant and Club Employees and Bartenders Union, AFL-CIO ("Local 6" or "Union"). (Mazanec Aff. ¶ 5, Def.'s 56.1 Statement ¶ 4) The Union and the Yale Club are parties to a collective bargaining agreement ("CBA"), which governs many of the terms and conditions of Union members' employment, including compensation, discipline, and grievance and arbitration procedures. (Mazanec Aff. 5; Mazanec Aff. Ex. 1; Def.'s 56.1 Statement ¶ 4) Under the CBA, the Yale Club has the right to establish reasonable work rules and to maintain discipline and efficiency (unless otherwise in conflict with the CBA). (Mazanec Aff. Ex. 1, at 26-27; Def.'s 56.1 Statement ¶ 4)

Waiters working in the Yale Club's three restaurants fall under the title "ala carte," while wait-staff working at functions held at the Yale Club, such as weddings, are called "banquet waiters." (Mazanec Aff. ¶ 5; Def.'s 56.1 Statement ¶ 5) Typically, most wait-staff were specifically hired as either ala carte or as a banquet waiter. (Mazanec Aff. ¶ 5; Def.'s 56.1 Statement ¶ 5) The tasks of a banquet waiter, in the chronological order of an event, typically include: (i) determining with whom the waiter is partnered and the table for which the waiter and the partner are responsible; (ii) determining the number of guests at the assigned table and number of courses to enable the proper setting of the table; (iii) setting the table with the proper linens and utensils; (iv) listening for the captain's instructions regarding the sequence of stages of an event, such as when to light candles and when the guests will arrive; (v) if there is a reception in a different room from the function, one partner works the reception and the remaining partner finishes setting up the perishable items on the table; (vi) during the function, the waiters serve in accordance with the menu and the regular pick-up procedures in the kitchen. (Augustin Tr. 104-06, 110-11, 113; Def.'s 56.1 Statement ¶ 6)

At banquet functions, waiters usually worked in teams of two. (Augustin Tr. 104, 107-08) As a result, communication between partners was very important in order to make sure that tables were served quickly and efficiently. (Augustin Tr. 106-107; Def.'s 56.1 Statement ¶ 7) Waiters were mainly responsible for their assigned tables, but if a guest from another table asked another waiter for service, waiters were instructed to help that guest. (Augustin Tr. 108; Def.'s 56.1 Statement ¶ 7) Although the tasks of an ala carte waiter were different from those of a banquet waiter, it was also important for ala carte waiters to be responsive to guests and work cooperatively both with their partner, and other waiters within the restaurant, to ensure that the "guest comes first." (Augustin Tr. 137-38; Def.'s 56.1 Statement ¶ 8)

The Yale Club repeatedly emphasized to its banquet waiters that teamwork and cooperation were important in serving the guests. For example, the wait-staff's captains held regular meetings with the banquet waiters to remind them of the importance of working together and making sure the guests were happy. (Augustin Tr. 113-14; Def.'s 56.1 Statement ¶ 7) Plaintiff understood this concept was part of the service provided by the Yale Club and this message was reinforced in the Yale Club's "Banquet Department Steps of Service" manual that Plaintiff received in mid-2002 (Mazanec Aff. Ex. 3; Augustin Tr. 410-11, 414-16; Def.'s 56.1 Statement ¶ 9) Another important requirement for the Yale Club's wait-staff was to act respectfully and courteously, not only towards guests, but also towards co-workers. (Mazanec Aff. ¶ 6; Def.'s 56.1 Statement ¶ 10) This policy was explicitly outlined in the Club's Employee Handbook: "All Club Employees are expected to comport themselves at all times in a professional and businesslike manner, including being courteous and respectful of all fellow Employees, Members, guests and visitors." (Mazanec Aff. Ex. 2, at 15; Def.'s 56.1 Statement ¶ 10)

2. Plaintiff's Employment at the Yale Club

Plaintiff was initially hired by the Yale Club in or about September 1996 as an extra banquet waiter. (Augustin Tr. 54-56; Def.'s 56.1 Statement ¶ 11) Thereafter, Plaintiff worked intermittently as both a banquet waiter and an ala carte waiter. (Augustin Tr. 60, 68-69; Def.'s 56.1 Statement ¶ 11) In January 1997, Plaintiff was offered and accepted a permanent part-time ala carte lunch position at the Club, on the condition that she would also have the chance to work as a banquet waiter. (Augustin Tr. 61-64; Mazanec Aff. Ex. 4; Def.'s 56.1 Statement ¶ 12)

When Plaintiff began her permanent employment at the Club, Ormston was the Human Resources Director. (Augustin Tr. 75-76; Def.'s 56.1 Statement ¶ 13) Plaintiff found Ormston to be a nice, responsive, and fair person. (Augustin Tr. 76, 572-73; Def.'s 56.1 Statement ¶ 13) In June 2000, Ormstom retired and her position was filled, in September 2000, by Keith Mazanec ("Mazanec"). (Mazanec Aff. ¶¶ 1, 9; Augustin Tr. 291; Def.'s 56.1 Statement ¶ 13)

At the outset of Plaintiff's employment at the Club, the food and beverage director was Kimberly Nevin ("Nevin"). (Augustin Tr. 61; Mazanec Aff. ¶ 8; Def.'s 56.1 Statement ¶ 14) Nevin had direct supervisory responsibility over the managers of the Club's restaurants.

(Mazanec Aff. ¶ 8; Def.'s 56.1 Statement ¶ 14) Plaintiff got along with Nevin and found her to be a decent supervisor. (Augustin Tr. 71; Def.'s 56.1 Statement ¶ 14) In late June 1997, Nevin left the Club and after a few months her position was filled by Dawn Flynn ("Flynn"). (Augustin Tr. 150-51; Mazanec Aff. ¶ 8; Def.'s 56.1 Statement ¶ 14) In the period before Flynn was hired, the Club created the new position of Director of Restaurants, which was assumed, in June 1997, by Michael O'Driscoll ("O'Driscoll"). (Mazanec Aff. ¶ 8; Def.'s 56.1 Statement ¶ 14) Plaintiff found O'Driscoll to be nice and responsive to her concerns. (Augustin Tr. 150; Def.'s 56.1 Statement ¶ 14) O'Driscoll only remained in the new position until the end of October 1997 when the position was discontinued. (Mazanec Aff. ¶ 8; Def.'s 56.1 Statement ¶ 14)

Plaintiff's direct supervisor in the Tap Room restaurant at all relevant times was Carlos Gonzales ("Gonzales"). (Augustin Tr. 157; Def.'s 56.1 Statement ¶ 15) Her supervisor in the banquet department at all relevant times was Kevin O'Brien ("O'Brien"), the Club's Catering Director. (Mazanec Aff. ¶ 11; Def.'s 56.1 Statement ¶ 15) This position entailed, among other things, directly supervising banquet wait-staff, including conducting performance evaluations and engaging in disciplinary actions. (Mazanec Aff. ¶ 11; Def.'s 56.1 Statement ¶ 15) At all relevant times, Alan Dutton ("Dutton") was the general manager of the Yale Club. (Mazanec Aff. ¶ 1; Def.'s 56.1 Statement ¶ 15) When working as a banquet waiter, Plaintiff's captain varied with each banquet. Generally, there were four captains with whom Plaintiff worked: Carlos Cabrera ("Cabrera"), Charles Garcia ("Garcia"), Antonio Rojas ("Rojas"), and James Hannigan ("Hannigan"). (Augustin Tr. 114-15; Def.'s 56.1 Statement ¶ 15) Captains had no review or disciplinary power over banquet wait-staff, as their role was limited to ensuring that functions went smoothly and service was appropriately provided. (Mazanec Aff. ¶ 11; Def.'s 56.1 Statement ¶ 15)

3. June 1997 Daskalakis Incident

Shortly after Plaintiff's employment began, she started to have difficulties interacting with co-workers, which were documented in her personnel records. (Mazanec Aff. ¶ 9; Def.'s 56.1 Statement ¶ 15) A summary contained in Plaintiff's file documents that in 1997-98 alone, she participated in over a dozen separate disputes with over a dozen different co-workers. (Mazanec Aff. ¶ 9; Mazanec Aff. Ex. 30; Def.'s 56.1 Statement ¶ 15). The first such incident occurred in June 1997 between Plaintiff and her banquet captain Antonio Daskalakis ("Daskalakis"). (Mazanec Aff. Exs. 6, 30; Def.'s 56.1 Statement ¶ 17) According to Plaintiff, Daskalakis complained to Club management that Plaintiff failed to follow an instruction he gave her to clear glasses from the bar area.*fn3 (Augustin Tr. 241-43; Def.'s 56.1 Statement ¶ 17) At a June 3, 1997 meeting, Ormston met with Augustin and Daskalakis to address the complaint where she told both employees that the Yale Club "would not tolerate this unbecoming behavior and they should stop calling each other names." (Mazanec Aff. Ex. 6; Def.'s 56.1 Statement ¶ 17) Both employees agreed that they would try to work out their problems and that should there be a problem in the future, they should quickly bring it to Management's attention so that it could be addressed. (Mazanec Aff. Ex. 6; Def.'s 56.1 Statement ¶ 17)

4. June 1997 Regalado Incident

In response to a complaint made by Plaintiff, Ormston held another meeting on June 5, 1997 with Plaintiff and line cook Gennaro Regalado ("Regalado"). (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) The complaint stemmed from a remark Regalado made to Plaintiff. Regalado told Plaintiff that "Tony is looking for you," and in response to Plaintiff's inquiry, identified him as "Tony the Greek." (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) Plaintiff then asked, "When was Tony looking for me this morning, [or] last night?" Regalado responded, "I do not remember, you will go on vacation with him to Greece." (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) Plaintiff, in turn said, "I have been to Greece." (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) Regalado also mentioned that he knew Plaintiff "was in hot water." (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18)

At the meeting with Ormston, held the afternoon of the incident, Regalado said that he meant his statements as a joke. He apologized to Plaintiff, and recognized that it was bad judgment on his part. (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) Ormston then cautioned Regalado that such joking was unacceptable and he should be careful about joking around with other employees. (Mazanec Aff. Ex. 7; Def.'s 56.1 Statement ¶ 18) After the meeting with Ormston, and Regalado's apology, relations between Plaintiff and Regalado resumed as normal , Plaintiff had no further problems with Regalado, and Plaintiff considered the matter resolved. (Augustin Tr. 237-40; Def.'s 56.1 Statement ¶ 18)

5. June 18, 1997 Ormston Meeting

On June 18, 1997, Ormston held another meeting with Plaintiff. (Mazanec Aff. Ex. 8) The meeting was in response to a complaint from Carlos Gonzalez, a Headwaiter, that Plaintiff's co-workers complained to him that they did not want to work with Plaintiff because of the difficulty in getting along with her. (Mazanec Aff. Ex. 8; Def.'s 56.1 Statement ¶ 19) Ormston told Plaintiff of the complaints and that her attitude upset employees who worked with her. (Mazanec Aff. Ex. 8; Def.'s 56.1 Statement ¶ 19) Ormston also advised Plaintiff that the situation was serious and that if the Club continues to receive such complaints it would be necessary to revisit the issue, which could result in disciplinary action. (Mazanec Aff. Ex. 8) Plaintiff was also advised that, in the future, if she had any problems with her partner she should bring it to the attention of the Headwaiter. (Mazanec Aff. Ex. 8; Def.'s 56.1 Statement ¶ 19)

6. July 8, 1997 O'Driscoll Meeting

On July 8, 1997, Plaintiff approached O'Driscoll concerning her request to change her vacation dates. (Mazanec Aff. Ex. 9) At this meeting, O'Driscoll asked Plaintiff how she was doing at her job. (Mazanec Aff. Ex. 9) Plaintiff said she "was being discriminated against and harassed by the management and fellow workers." (Mazanec Aff. Ex. 9) When asked to explain, Plaintiff said Gonzales harassed her by questioning her lateness a week earlier, even though he didn't question the lateness of another co-worker. (Mazanec Aff. Ex. 9) Plaintiff admitted that she was late on at least a couple of occasions, (Augustin Tr. 206-07) but acknowledged that she was not docked pay as a consequence of coming late, nor did she claim other adverse consequences as a result of coming in late. (Augustin Tr. 638-39)

Plaintiff also complained to O'Driscoll that Gonzales gave her extra guests at her station and required her to train new hires. (Mazanec Aff. Ex. 9; Augustin Tr. 139-147; Def.'s 56.1 Statement ¶ 21) Plaintiff told O'Driscoll that Gonzales assigned her these additional duties because she had declined to work breakfast and lunch shifts at his request. (Mazanec Aff. Ex. 9; Def.'s 56.1 Statement ¶ 21) Plaintiff also testified that Gonzales distributed guests to all of the waiters' tables in a disorganized manner, and that this was a common complaint among all of the waiters. (Augustin Tr. 147-49; Def.'s 56.1 Statement ¶ 21)

At the July 8, 1997 meeting, Plaintiff also told O'Driscoll that Gonzales's jokes were offensive and upsetting and that, in her presence, he intentionally referred to prosciutto ham as "prostitute ham." (Mazanec Aff. Ex. 9; Augustin Tr. 191, 231-33; Def.'s 56.1 Statement ¶ 22) At this meeting, Plaintiff also claimed that she found herself in an altercation with another waiter, Aftab Ali ("Ali"), who grabbed menus out of her hand and told her "you are a stupid waitress." (Mazanec Aff. Ex. 9; Def.'s 56.1 Statement ¶ 22)

O'Driscoll told Plaintiff he would investigate her claims and he embarked upon an investigation. (Mazanec Aff. Ex. 9; Def.'s 56.1 Statement ¶¶ 23-24) Regarding the incident with Ali, the Club took a statement from Ali where he disputed Plaintiff's depiction of the menu incident and described another incident where Plaintiff was rude to him. (Mazanec Aff. Ex. 10; Def.'s 56.1 Statement ¶ 24) Ali also stated that on both occasions Plaintiff falsely complained to Gonzales about him. (Mazanec Aff. Ex. 10; Def.'s 56.1 Statement ¶ 24) O'Driscoll also interviewed two of Plaintiff's partners, Russell Pinn ("Pinn") and Jose Nieto ("Nieto"). Pinn stated he was partnered with Plaintiff because other waiters did not get along with Plaintiff. (Mazanec Aff. Ex. 11; Def.'s 56.1 Statement ¶ 25) Nieto was initially trained by and partnered with Plaintiff. (Mazanec Aff. Ex. 12; Def.'s 56.1 Statement ¶ 25) He also found it difficult to work with Plaintiff and requested to work with a different partner. (Mazanec Aff. Ex. 12; Def.'s 56.1 Statement ¶ 25) Subsequently, Nieto did not have problems with Plaintiff because he essentially did not speak to her. (Mazanec Aff. Ex. 12; Def.'s 56.1 Statement ¶ 25)

7. July 10, 1997 Ormston Meeting

On July 10, 1997, Ormston held a meeting with Plaintiff, Gonzales, Dutton, and Joe Luby ("Luby"), a Union business agent, to address Plaintiff's July 8 complaints. (Mazanec Aff. Ex. 13; Def.'s 56.1 Statement ¶ 26) At the meeting, the participants reviewed Ali's version of the incident, to which neither Plaintiff nor her Union representative objected. (Mazanec Aff. Ex. 13; Def.'s 56.1 Statement ¶ 27) Plaintiff again raised her objection to Gonzales's "proscuitto/prostitute ham" remark and Dutton said he would speak to Gonzales about it. (Mazanec Aff. Ex. 13; Def.'s 56.1 Statement ¶ 27) In a later meeting, Dutton followed up with Plaintiff and told her he had spoken to Gonzales about the remark. (Mazanec Aff. Ex. 20; Def.'s 56.1 Statement ¶ 27) Plaintiff admitted that after she complained about Gonzales's remark it never happened again. (Augustin Tr. 233; Def.'s 56.1 Statement ¶ 27)

8. July 11, 1997 Sharp Incident

The next documented incident between Plaintiff and a co-worker occurred with a bartender named John (a/k/a Jack) Sharp ("Sharp"). Plaintiff claimed that on July 11, 1997, she went to the bar to fill a drink order, and "out of nowhere" Sharp "got upset" and said, "You not a waitress. Your kind do not belong here. Your kind belong in the street. You give us a ticket. Are you a meter maid? What do you think you are doing here? Your kind do not belong here. You belong on the street. That's where you are supposed to be. How did you get this job here?" (Augustin Tr. 560-61; Def.'s 56.1 Statement ¶ 28) When Plaintiff initially recounted the incident she claimed Sharp said, "you are not good at being a waitress and you belong in the street," and told her to "fuck off," to which she responded, "fuck you." (Mazanec Aff. Ex. 14) Plaintiff concluded this statement was gender-motivated, because she was the only woman working on that floor. (Augustin Tr. 561-62; Def.'s 56.1 Statement ¶ 28) Plaintiff also concluded this statement was racially motivated, because a meter maid is a civil servant position mostly filled by "minority black" people. (Augustin Tr. 707-08; Def.'s 56.1 Statement ¶ 28)

Plaintiff brought the alleged Sharp comment to The Yale Club's attention on July 14, 1997, three days after the alleged incident occurred. (Mazanec Aff. Ex. 14; Def.'s 56.1 Statement ¶ 28) The Club promptly investigated the incident by taking Plaintiff's complaint, and interviewing Sharp and four other witnesses. (Mazanec Aff. Exs. 14-19; Def.'s 56.1 Statement ¶ 28) Sharp admitted telling Plaintiff she was not a waitress, had no manners, and would make a good meter maid, because Plaintiff was very rude when placing her drink order, which he described as her typical demeanor. (Mazanec Aff. Ex. 15; Def.'s 56.1 Statement ¶ 29) The witnesses all supported Sharp's version of the incident and confirmed that Sharp's comments were precipitated by Plaintiff's rude disposition when ordering her drinks. (Mazanec Aff. Exs. 16-19; Def.'s 56.1 Statement ¶ 29) The witnesses all denied hearing Sharp curse at Plaintiff, and in fact only heard Plaintiff repeatedly cursing. (Mazanec Aff. Exs. 16-19)

Ormston and Dutton held a meeting on September 4, 1997 with Sharp, Plaintiff, Luby, a Union representative, and Ramiro Vidal ("Vidal") to summarize the results of the Club's investigation into the incident. (Mazanec Aff. Ex. 20; Def.'s 56.1 Statement ¶ 30) The Club concluded that both parties were at fault because while Plaintiff started the incident by discourteously pacing her drink orders, Sharp's remarks were still inappropriate. (Mazanec Aff. Ex. 20; Def.'s 56.1 Statement ¶ 30) Ormston told Sharp to apologize, which he did. (Augustin Tr. 571-72; Def.'s 56.1 Statement ¶ 30) Plaintiff acknowledged that Sharp never again made a similar remark to her, and said that she was satisfied with this resolution. (Augustin Tr. 561, 571-72; Def.'s 56.1 Statement ¶¶ 28, 30)

During the September 4 meeting, Plaintiff, for the first time, raised additional complaints regarding co-workers. (Mazanec Aff. Ex. 20; Def.'s 56.1 Statement ¶ 31) The most serious claim was that Regaldo previously called her a "black bitch." (Mazanec Aff. Ex. 20; Def.'s 56.1 Statement ¶ 31) Both Dutton and Ormston told Plaintiff that in numerous meetings they had with her regarding other complaints, she had never mentioned Regaldo's statement. (Mazanec Aff. Ex. 20) They also asked her why she had not informed the Union about the comment. (Mazanec Aff. Ex. 20) Plaintiff responded that she was told by her Union not to bring it up. (Mazanec Aff. Ex. 20) Luby, a Union representative, denied that the Union made any such statement. (Mazanec Aff. Ex. 20) Dutton, as General Manager, concluded by saying that he would not stand for employees being harassed and the Yale Club immediately commenced an investigation into the new allegation by interviewing and obtaining statements from the relevant parties. (Mazanec Aff. Exs. 20-23; Def.'s 56.1 Statement ¶¶ 31-32) The statements of the relevant parties collected during the investigation did not support any of Plaintiff's claims. (Mazanec Aff. Exs. 21-23; Def.'s 56.1 Statement ¶ 32)

9. May-June 1998 Incidents

In May 1998, Plaintiff brought another complaint to her Union's attention regarding her co-worker Luovino Collado ("Collado"). After investigating the complaint, the Union representative concluded that both employees called each other names and both Plaintiff and Collado agreed to put their grievances behind them ...


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