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Freddrick Macmillan v. Millennium Broadway Hotel

September 16, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Freddrick MacMillan alleges that Defendant Millennium Broadway Hotel discriminated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq., 42 U.S.C. § 1981, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 etseq. Before the Court is Defendant's motion for summary judgment. For the reasons stated below, Defendant's motion will be denied.


Plaintiff, an African-American male, has been a Hotel employee for approximately 21 years.*fn1 (Def. R. 56.1 Stat. ¶¶ 3, 5-7) Between 1990 and 2004, Plaintiff worked as a Housekeeping Attendant. In 2004, he became an Engineer in the Hotel's Engineering Department, a position he holds today. (Id.¶¶ 5-7) Beginning in April 2007, Plaintiff claims that he began to experience acts of racial harassment that ultimately created a hostile work environment.

On or about April 18, 2007, Cromwell Bodden, another engineer working in the Hotel's Engineering Department, used the word "nigger" in Plaintiff's presence.*fn2 (Id. ¶ 13) Joseph Fariello, the Engineering Supervisor and a Caucasian, issued a verbal warning to Bodden for using that word in the workplace. (Id. ¶ 14)

In May 2007, Plaintiff became involved in a verbal altercation with Jaroslaw Zgoda, a Caucasian Hotel laundry attendant. (Id. ¶ 19) Plaintiff called Zgoda "son" and Zgoda referred to Plaintiff as "boy." (Id. ¶ 20) Zgoda was laid off shortly after this incident, because the Hotel's Laundry Department was shut down. (Id. ¶ 21) The Hotel initially threatened to terminate Plaintiff's employment, but later agreed to discipline Plaintiff by written warning. (Id. ¶¶ 22-23) The parties entered into a settlement agreement, in which Plaintiff released the Hotel of liability for any claims relating to the Zgoda incident. (Id. ¶ 24)

On May 30, 2007, Plaintiff filed a charge with the New York State Division of Human Rights ("DHR") alleging race discrimination relating to the incidents involving Bodden and Zgoda. (Id. ¶ 25) On March 27, 2008, the DHR issued a finding that there was no probable cause to believe that the Hotel had discriminated against Plaintiff. (Id. ¶ 26) The Equal Employment Opportunity Commission ("EEOC") issued Plaintiff a right to sue letter on May 13, 2008. (Id. ¶ 27)

On January 23, 2009, Thomas Scudero, the Hotel's Regional Director of Property Operations and a Caucasian, brought a number of voodoo dolls to the Hotel. (Id. ¶¶ 44-45; Pltf. R. 56.1 Counter-Stat. ¶ 4) Scudero's duties include supervising the Engineering Department. (Pltf. R. 56.1 Counter-Stat. ¶ 2) The voodoo dolls had black faces and pink lips. (Id. ¶ 14)

Scudero hung one of the dolls on Engineering Supervisor Fariello's bulletin board by pinning a two inch-long string attached to the doll's neck to the bulletin board.*fn3 (Def. R. 56.1 Stat. ¶¶ 46-47) Fariello reports directly to Scudero. (Pltf. R. 56.1 Counter-Stat. ¶ 3)

When Plaintiff first saw the voodoo dolls on Scudero's desk, he thought the dolls "were about [him]." (McMillan Dep. 134) He said to Scudero, "I hope those dolls ain't about me." He also asked Scudero, "should I be offended by these dolls?" (Id. at 134; Def. R. 56.1 Stat. ¶ 54) Scudero responded that the dolls weren't about Plaintiff and that he shouldn't be offended, explaining that he bought the dolls as souvenirs for his staff. (McMillan Dep. 134; Def. R. 56.1 Stat. ¶ 55) Plaintiff responded that so long as the dolls were not about him, "it's okay." (Id. ¶ 56; McMillan Dep. 184) Plaintiff told other Hotel employees, however, that he was very disturbed by the dolls. (Pltf. R. 56.1 Resp. ¶ 61; Pyne Aff., Ex. A, D204-05, D208, D214, D215) A number of other Hotel employees were likewise disturbed by the doll display, which appeared to them to evoke the lynching of black males. (Pyne Aff., Ex. A, at D171, D174, D197, D200, D219)

Nowrotam Paray, a "Watch Engineer"*fn4 assigned to the Hotel's Engineering Department, told Plaintiff that the doll hanging on Fariello's bulletin board "was meant to be Plaintiff." Plaintiff became very upset after Paray told him that the doll was intended to represent Plaintiff. (Def. R. 56.1 Stat. ¶ 60; Pyne Aff., Ex. A, D193-94) Paray then told Fariello that Hotel employees were offended by the voodoo doll and that he should remove it from his bulletin board, but Fariello refused to remove the doll. (Pltf. R. 56.1 Counter-Stat. ¶¶ 16-17)

On January 30, 2009 -- after the doll had been on display for approximately a week -- a union representative brought Kathleen Pyne, the Hotel's Director of Human Resources, to the Engineering Department and showed her the doll hanging on Fariello's bulletin board. (Def. R. 56.1 Stat. ¶ 48) Andrew Dorough, the Hotel's Front Office manager, announced to Hotel employees that the Hotel would conduct an investigation into the matter. (Id. ¶¶ 49-50) Pyne interviewed twenty-nine employees regarding the incident. (Id. ¶ 51) Mark Sanders, the Hotel's General Manager, later sent a letter to all Hotel staff stating that the Hotel does not tolerate discriminatory harassment of any kind. (Id. ¶ 52)

The Hotel did not discipline Fariello as a result of this incident. (Pltf. R. 56.1 Counter-Stat. ¶ 20) Scudero was placed on paid leave for approximately a month while Pyne conducted her investigation, but likewise suffered no discipline. (Id. at ¶ 19; Stewart Decl., Ex. 3 at 55) Scudero returned to his position after Pyne's investigation was completed. At that time, and at the request of the Hotel's general manager, he publicly apologized to the staff, explaining that if he had offended anyone, he did not do so intentionally. (Scudero Aff., ¶ 25)

Plaintiff apparently filed a complaint with the EEOC, and on April 8, 2009, the EEOC issued Plaintiff a right to sue ...

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