United States District Court, S.D. New York
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
Plaintiff Rafael Batista alleges employment discrimination and retaliation claims against his employer Defendant The Waldorf Astoria ("Defendant" or the "Hotel"). Defendant now moves for summary judgment. For the reasons stated below, Defendant's motion is granted in its entirety.
I. FACTUAL BACKGROUND
Unless otherwise noted, the following facts are taken from the parties' statements filed pursuant to Local Rule 56.1 and from Plaintiff's Declaration, dated October 24, 2014. The facts are undisputed or taken in the light most favorable to Plaintiff.
Plaintiff is a Hispanic man of Dominican descent who is employed as a steward at one of the Hotel's restaurants. His job responsibilities include dishwashing, keeping the kitchen clean and removing garbage. Plaintiff is a member of an industry-wide union.
Simi Sangari, a woman of South Asian descent, worked as Stewarding Supervisor from approximately August 2007 until (according to the Hotel) June 2011. Sangari was supervised by Robert Castillo, a Hispanic man of Dominican descent who worked as Director of Stewarding. Mark Pandaleon, a white man, worked as Stewarding Manager in 2010, was promoted to Director of Stewarding in approximately March 2013 and - according to the Hotel - worked at the Hotel until March 2014.
A. Incidents in August and September 2008
Plaintiff alleges that, on approximately August 20, 2008, Ryan Alday - a sous chef employed by the Hotel from October 2005 to August 2009 - threw a knife at Plaintiff's head. On approximately September 20, 2008, Alday allegedly refused to share with Plaintiff food prepared for Hotel employees and directed a racial slur at Plaintiff.
Plaintiff alleges that Alday "repeatedly and continuously subjected [him] to racial slurs" and "target[ed him] based on [his] race and national origin." Plaintiff alleges Alday did so "because, upon information and belief, he received orders" to target Plaintiff "from Ms. Sangari and Mr. Castillo."
Plaintiff reported these incidents to the Hotel's Human Resources Department but, "upon information and belief, no investigation took place and nothing was done to rectify the situation."
B. June 2010 Incident
On June 28, 2010, Plaintiff and Bright Brown, an African American who also worked as a steward at the Hotel, worked together in the restaurant's kitchen. On June 29, 2010, Castillo discovered considerable garbage that had been left in the kitchen and directed Sangari to give Verbal Warnings - defined by the Hotel as a type of "corrective communication" given to employees - to Plaintiff and Brown. Plaintiff contends that he was not tasked with garbage removal on June 28 and that the Hotel improperly wrote him up for failure to remove the garbage when it was not his responsibility to do so. Plaintiff states that he complained to the union and to the Hotel about this incident, but that the Hotel took no action.
Plaintiff and Brown protested the Verbal Warnings, and, as a result, the Hotel reduced the Warnings to Coach & Counselings - "a form of communication to the employee [that is] not considered a form of discipline by the Union." The parties agree that no discipline followed from the Coach & Counseling as there were no further related infractions. Plaintiff and Brown asked the Hotel to rescind the Coach & Counselings, but it refused to do so. Plaintiff states that he "find[s] these coach and counseling sessions to be forms of harassment against me and other employees."
C. July 2010 Incident
Plaintiff alleges that in July 2010, Sangari yelled at him, "Fucking Dominican... You're just a Black from Haiti!" Plaintiff asserts that the slurs were made after Plaintiff had failed to take dishes to the fourth floor as Sangari had requested. Plaintiff reported the incident, both orally and in writing, to the Hotel's Human Resources Department, including a signed statement by witnesses, but the Hotel "again refused to rectify or address the situation."
D. December 2010 Incident
Plaintiff alleges that, on approximately December 11, 2010, Pandaleon physically blocked him from using the restroom and insisted that he carry heavy food trays without help from any co-workers. Pandaleon allegedly pushed Plaintiff, caused him to fall and shouted, "Get to work!" When Plaintiff asked Pandaleon why he had pushed him, Pandaleon responded, "So you can work." Plaintiff then called the police and his union representative. Pandaleon was not arrested, and no criminal charges were filed against him. Plaintiff alleges that, "[u]pon information and belief, " Pandaleon pushed him "because of [his] race [and national origin] and because Mr. Pandaleon received orders and instructions from Ms. Sangari to harass and attack [him]."
E. Other Allegations
In addition to these specific incidents, Plaintiff also alleges that he was subjected to mistreatment by Sangari and other supervisors at the Hotel. First, he alleges that Sangari "repeatedly changed [his] schedule every time [his] schedule would be posted and she would reduce [his] hours as well." Second, Plaintiff also asserts that "Ms. Sangari continuously called [him] a [F]ucking Dominican' and [F]ucking Latino.'" Plaintiff alleges that he reported these comments to the Hotel, but the Hotel "never shared the results of the alleged investigation it conducted." Plaintiff states that, as a result, he "felt dissuaded from reporting any future discriminatory conduct" to the Hotel. Third, Plaintiff is "of the belief that a group of managers of the [Hotel] covered for one another and their discriminatory conduct against persons like [him]self." Fourth, Plaintiff alleges that the Hotel continues to discriminate against him, at least in part in retaliation for discrimination complaints he has filed. In particular, Plaintiff states that his "schedule constantly changed on or around July 2013" and that he "was the only employee who came into work at five different shift times during the week."
II. PROCEDURAL HISTORY
A. Administrative Proceedings
On July 23, 2010, Plaintiff filed discrimination charges with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"). In a section titled "Acts of Discrimination" on the NYSDHR form, Plaintiff indicated that he was harassed or intimidated, given responsibilities different or worse than employees with the same position and was given a disciplinary action or negative performance evaluation. Plaintiff's statement included the following:
On July 12, 2010, .... [a]round 9:00PM[, ] Mrs. Simi Sangari came down again and told me to take all the dirty stuff and go to wash them. I asked her if I should go to the 2nd floor and she said NO. Then I asked her if I should go to the 3rd floor, and against she said NO. Then she said to the 4th Floor, where there wasn't anybody. She began harassing me and making my work difficult. A few moments later, she told me "F.... Dominican, you are ...