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Adam v. Mangia 57

June 18, 2012

ADAM WIERCINSKI,
PLAINTIFF,
v.
MANGIA 57, INC., DEFENDANT.



The opinion of the court was delivered by: Glasser, Senior United States District Judge:

MEMORANDUM AND ORDER

On October 14, 2009, plaintiff Adam Wiercinsiki ("plaintiff") filed a complaint against his former employer, Mangia 57, Inc. ("Mangia"), a cafe and catering company, and several Mangia employees, alleging, among other things, claims for discrimination and hostile work environment based on religion pursuant to Title VII of the Civil Rights Act of 1964, hostile work environment based on race pursuant to 42 U.S.C. § 1981, and violations of various state and municipal laws. The Court on July 2, 2010 dismissed plaintiff's state and municipal claims, and on November 29, 2011, so ordered the parties' stipulation dismissing with prejudice all of the remaining claims except plaintiff's Title VII and Section 1981 hostile work environment claims against Mangia. Mangia now moves for summary judgment pursuant to Fed. R. Civ. P. 56(a) on the remaining claims. For the foregoing reasons, Mangia's motion for summary judgment is hereby GRANTED as to plaintiff's Title VII claim and DENIED as to plaintiff's Section 1981 claim.

I.BACKGROUND

The background to this action is also set out in the Court's previous decision, familiarity with which is assumed. See Wiercinski v. Mangia 57, Inc., No. 09 Civ. 4413 (ILG), 2010 WL 2681168, at *1 (E.D.N.Y. July 2, 2010). The pertinent facts, either undisputed or, where disputed, taken most favorably to plaintiff are as follows. Mangia employed plaintiff as a caterer from 1999 to 2007. Defendant's Rule 56.1 Statement of Undisputed Material Facts dated Jan. 20, 2012 ¶¶ 8, 12 ("Def.'s 56.1") (Dkt. No. 83-6). Plaintiff is Jewish. Complaint dated Oct. 14, 2009 ¶ 27 ("Compl.") (Dkt. No. 1). Artur Zbozien ("Zbozien"), a dispatcher at Mangia, was plaintiff's supervisor. Def.'s 56.1 ¶ 25. So too was Margaret Cymanow ("Cymanow"), Mangia's general manager. Def.'s 56.1 ¶ 27. Robert Bazgier ("Bazgier") and Gregorz Sarosiek ("Sarosiek"), dispatching assistants at Mangia, were two of plaintiff's co-workers. Plaintiff's Rule 56.1 Counter-Statement of Undisputed Material Facts dated Mar. 2, 2012 ¶ 31 ("Pl.'s 56.1") (Dkt. No. 85).

In deposition testimony, plaintiff described repeated harassment he received at the hands of Zbozien, incidents involving Bazgier and Sarosiek, and derogatory comments made by Cymanow. Some of this testimony was corroborated by other employees at Mangia. On his first day of work, plaintiff testified that after accidentally bumping into Zbozien while the two were moving boxes, Zbozien said to him "Did anybody ever fuck you, mother-fucking Jew." Declaration of Steven Warshawsky dated Mar. 2, 2012 ("Warshawsky Decl.") Ex. 2 (Wiercinski Dep.), at 268 (Dkt. No. 86). Zbozien frequently referred to plaintiff, among other things, as "stupid Jew," "dirty Jew," "fucking Jew," told him to go away because it "smells of Jew," and at least a few times would say, "Fuck off, you stupid Jew." Warshawsky Decl. Ex. 3 (Krajewski Dep.), at 37-39; id. Ex. 5 (Ubowski Dep.), at 48, 67; Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 271.

Zbozien also "practically on a weekly basis" refused to distribute to plaintiff his share of the tips at the end of each shift, forcing one of his colleagues to give plaintiff his share and then taking over once again after plaintiff left. Id. Ex. 2 (Wiercinski Dep.), at 272 ("[W]hen I came to the register when it was my turn he . . . stood up and he said, I'm not going to be dealing with this stupid Jew or other dumb Jew, and he asked his assistant Bazgier to deal with me instead."); id. Ex. 3 (Krajewski Dep.), at 31 ("When Artur saw [plaintiff] waiting, he was saying that he wouldn't be giving any money to the dirty Jew. And usually when he was getting up, Robert was taking his place. When [plaintiff] was done, Artur returned."). On approximately 10 of the occasions in which he did interact with plaintiff, Zbozien paid plaintiff part of his tip in pennies by tossing the pennies at plaintiff, the surrounding tables, and the floor. Id. Ex. 3 (Krajewski Dep.), at 36 ("[S]o [Zbozien] on purpose was picking up, you know, the pennies only and grabbing the handful of pennies. He was tossing them in front of [plaintiff]. Obviously those pennies were flying everywhere-on the tables, on the floor, sometimes into his body."); id. Ex. 2 (Wiercinski Dep.), at 275 ("[H]e just threw it all over the room at me.").

On two other occasions, Zbozien made reference to Zyklon B, the poison gas used in Nazi death camps, during interactions with plaintiff-passing gas in plaintiff's direction and saying, "[Y]ou see Jew, this is your Zyclon [sic] B" and sprinkling salt on plaintiff's food and, while laughing, stating "This is your Zyclon [sic] B." Id. Ex. 2 (Wiercinski Dep.), at 278-79.

With respect to the treatment he received from Bazgier and Sarosiek, plaintiff testified that after he complained to Cymanow about Bazgier calling him names such as "piece of shit Jew," Bazgier kicked plaintiff in the groin and called him a "fucking pederast Jewish faggot." Id. Ex. 2 (Wiercinski Dep.), at 288-90. On another occasion, after plaintiff discovered Sarosiek drinking in Mangia's supply room, Sarosiek pushed plaintiff, causing him to hit his head on a wall and said "get the fuck out of here you fucking Jew." Id. Ex. 2 (Wiercinski Dep.) at 285. As for harassing comments made by Cymanow, plaintiff testified that, "many times," Cymanow called him "jopek" or "jopki"-apparently a derogatory term for Jews-and that "many times over" she mentioned to plaintiff that she blamed the Jews for killing Christ. Id. Ex. 2 (Wiercinski Dep.), at 252-54.

Plaintiff did not report every instance of harassment he experienced at Mangia but on several occasions complained to Cymanow about the treatment he received. Sometimes she took action in response to the complaints; sometimes she did not. Plaintiff testified that he complained about Zbozien's refusal to interact with him during the tip distribution process "[o]n numerous occasions" only to be met with the response that she was too busy to deal with the complaints. Warshawsky Decl. Ex. 2 (Wiercinski Dep.), at 273. He also testified that Cymanow took no action when he complained to her after Zbozien sprinkled salt on his food and made the Zyklon B comment and after Bazgier kicked plaintiff in the groin and called him "a fucking pederast Jewish faggot." Id. Ex. 2 (Wiercinski Dep.), at 279, 289-90. Cymanow did take remedial action after one of the occasions plaintiff complained to her about Zbozien's treatment of him- temporarily transferring Zbozien for several weeks to a different Mangia location. Id.

Ex. 2 (Wiercinski Dep.), at 281-82. After Zbozien returned, however, plaintiff testified that "it was hell all over again." Id. Ex. 2 (Wiercinski Dep.), at 282.

In December 2007, plaintiff requested a leave of absence from Mangia in order to travel to Poland and, prior to leaving, was informed that he would not be rehired upon his return because he was leaving during the busiest time of the year. Def.'s 56.1 ¶¶ 36-37. After returning from his trip, plaintiff was not rehired by Mangia. Def.'s 56.1 ¶ 38.

On or about July 27, 2007, plaintiff filed a verified complaint against Mangia LLC with the New York State Division of Human Rights ("NYSDHR"), alleging, among other things, employment discrimination on the basis of his religion. Declaration of Andrew Prior dated Jan. 20, 2012 ("Prior Decl."), Ex. H. (Dkt. No. 83-1). As part of the dual-filing system, this complaint was also filed with the Equal Employment Opportunity Commission ("EEOC"). Id. On or about April 21, 2008, plaintiff filed a second complaint against Mangia 57, Inc., alleging that Mangia retaliated against him for filing his first complaint. Affidavit of Roger Maldonado dated Feb. 22, 2010, Ex. 5 (Dkt. No. 13). This complaint was also filed with the EEOC. Id. On May 13, 2009, the NYSDHR held a hearing on plaintiff's two complaints, and during the course of this hearing, Wiercinski agreed to withdraw them. Wiercinski, 2010 WL 2681168, at *1. At the hearing, the following exchanged occurred:

The Court:

[I]t is my understanding that at this time after consulting with Counsel, Mr. Wiercinski wishes to request permission from the Commissioner to withdraw his cases and will know that they will be dismissed with prejudice without any further proceedings. It is my understanding that the parties have had discussion and that they wish to inform me that the matter has been settled between them and they understand that this is a request to dismiss with prejudice without any further proceedings. Is that accurate, Gentleman?

Mr. Maldonado: This is accurate, Your Honor.

Mr. Colleluori [Plaintiff's counsel]: That's accurate.

The Court: Mr. Wiercinski, that's ...


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