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Lambert v. Trump International Hotel and Tower

United States District Court, S.D. New York

March 31, 2018


          Marshall B. Bellovin Vincent J. Roldan Lily Anne Ockert Ballon Stoll Bader & Nadler, P.C. New York, New York Counsel for Plaintiff

          Diane Windholz Orla J. McCabe Jackson Lewis, P.C. New York, New York Counsel for Defendants

          OPINION & ORDER


         Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (“Title VII”), the Americans with Disabilities Act (“ADA”), the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (“NYSHRL”) and the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 et seq. (“NYCHRL”) against Trump International Hotel and Tower (“Trump”), Francis Calderon, and Thomas Ahearn (the “Individual Defendants” and collectively with Trump, “Defendants”). Before me is Defendants' motion for summary judgment. For the reasons stated below, Defendants' motion for summary judgment is GRANTED as to all of Plaintiff s federal claims and NYSHRL claims, and those claims are dismissed with prejudice. Because I dismiss the federal claims before me, and because Plaintiff's NYCHRL claims are governed under a lower threshold of proof than their federal counterparts, I decline to exercise supplemental jurisdiction over Plaintiff's claims under the NYCHRL. Therefore, Plaintiff's NYCHRL claims are dismissed without prejudice to Plaintiff filing those claims in state court.

         I. Background[1]

         Lambert is a 29-year-old African-American male of Jamaican national origin. (Pl. 's 56.1 ¶ 6; Lambert Aff. ¶ 2.)[2] Lambert suffers from a skin condition known as “barber's itch” or “Folliculitis Barbae Traumatica.” (Pl.'s 56.1 ¶ 7.) Lambert was hired in December 2011 as a House Officer[3] at Trump. (Id. ¶ 8.)

         Trump is a high-rise building located at 1 Central Park West. The building contains both hotel rooms and residential condominiums. (Id. ¶ 1.) Trump maintains an Equal Employment Opportunity (“EEO”) Policy, (McCabe Aff. Ex. D.), [4] and Lambert received a copy of the EEO Policy, which he signed prior to commencing his employment at Trump, (Pl.'s 56.1 ¶ 9; McCabe Aff. Ex. F).

         The Individual Defendants were also employed at Trump while Lambert was a House Officer. Ahearn is employed as a House Officer, (Pl.'s 56.1 ¶ 3); Calderon is employed as an Assistant Front Office Manager, (id. ¶ 4). Ahearn and Plaintiff are co-workers. (Id. ¶ 3.) Ahearn and Calderon also received and signed copies of the EEO Policy. (Id. ¶ 5; McCabe Aff. Ex. E.)

         A. Ahearn's Termination and Reinstatement

         On April 23, 2013, Lambert met with Keisha Purcell Midouin, the Assistant Director of Human Resources at the time, to discuss comments that Ahearn made from January 2013 to April 2013. (Pl.'s 56.1 ¶ 11). At this meeting, Lambert told Midouin that “(1) in January 2013, when speaking with another House Officer about the recent termination of an Engineering Apprentice, Mr. Ahearn commented that the Apprentice would not have been terminated if he was black; (2) in mid-April 2013, while discussing the Boston marathon bombing, Mr. Ahearn purportedly made a derogatory reference about black people shooting one another; (3) on April 20, 2013, Mr. Ahearn allegedly described House Officer Michael Wiafe, as quiet unless ‘you are African;' and (4) that same evening, Mr. Ahearn told Plaintiff and another House Officer ‘see you later my dark skinned friends.'” (Id. ¶ 12 (quoting McCabe Aff. Ex. G).)

         Midouin immediately commenced an investigation into each of these allegations, interviewing the witnesses identified by Lambert. (Id. ¶ 13.) Based on this investigation, Trump terminated Ahearn's employment on May 8, 2013. (Id. ¶ 19.) Thereafter, the New York Hotel & Motel Trades Council, AFL-CIO (the “Union”) grieved Ahearn's termination. (Id. ¶ 20; McCabe Aff. Ex. N.) On May 10, 2013, Ahearn's discharge was converted to a time-served suspension without pay, and he returned to work as a House Officer at Trump. (Pl.'s 56.1 ¶¶ 20-21.) Following Ahearn's reinstatement, Lambert asked Deirdre Rosen, the Vice President of Human Resources, if Ahearn's shift could be changed because Lambert was uncomfortable working with him. (Id. ¶ 21.) In response, Rosen explained that she could not change Ahearn's shift because she did not have the power to do so, (id. ¶ 22; Lambert Dep. Tr. 107:10-15), [5] but advised Plaintiff that there were two open shifts that he could transfer into if he did not want to work on the same shift as Ahearn, (Pl.'s 56.1 ¶ 23). Lambert did not request or apply for a shift change. (Lambert Dep. Tr. 114:20-116:14.)

         B. Lambert's Notice of Discrimination

         On or about August 26, 2013, Lambert filed a charge of discrimination with the EEOC (the “EEOC Charge”), and notice of the EEOC charge was served on Trump on September 5, 2013. (Pl.'s 56.1 ¶ 42; McCabe Aff. Ex. X.) In the EEOC Charge, Lambert alleged that Ahearn made racial comments toward him starting in April 2013, and that Lambert was being retaliated against for complaining about Ahearn and the remarks. (McCabe Aff. Ex. X.)

         C. Lambert's Write-Up for Excessive Absences

         On October 14, 2013, Sal Blando, the Director of Security at Trump, issued Lambert a warning for continued excessive absences. (Pl.'s 56.1 ¶ 47; McCabe Aff. Ex. AA.) Lambert does not dispute that he was absent for the days listed in the warning. (Pl.'s 56.1 ¶ 49.) Blando had previously advised Lambert in April 2013 that he had “exhausted all of [his] paid sick days, ” and that “[a]ny employee who abuses sick leave benefits shall be subject to disciplinary action up to and including termination.”[6] (McCabe Aff. Ex. Z.) After receiving this warning, Lambert called out sick on July 13, 2013, August 8, 2013, and August 26, 2013; Lambert claims he had a doctor's note for each of these days. (Pl.'s 56.1 ¶ 46.)

         D. Lambert's Requests for Vacation, Overtime, and Use of a Hotel Room

         Vacation scheduling at Trump is governed by a Collective Bargaining Agreement, which instructs that “vacation must be made before January 15th or by May 1st for any remaining weeks available.” (Id. ¶ 51.) Vacation days are granted in accordance with seniority and the date the request was made. (Id.) Lambert acknowledges that he took vacation on December 16 and December 18, 2013. (Id. ¶ 53.) According to Trump's records, Ahearn took two vacation days in December 2013: December 8 and December 29. (Id. ¶ 56.)

         Trump employees are also offered the opportunity to work overtime based on seniority. (Getman Decl. ¶ 14.)[7] The employee who accepts the offer of overtime first is given the opportunity to work the overtime. (Id.) Lambert alleges that he made six requests to work overtime shifts from December 2013 to March 2014, all of which were denied. (Lambert Aff. ¶ 30.) From September 2013 to March 2014, Trump's records indicate that Lambert worked 107.75 hours of overtime; Ahearn worked 98 hours of overtime; and Benabou worked 122.25 hours of overtime. (Supp. Getman Decl. ¶ 4-6.)[8] Lambert maintains that Trump's figures are not an accurate reflection of his actual overtime because many of Lambert's tasks during his regular shift are factored into this figure. (Lambert Aff. ¶ 9.)

         Trump also maintains a policy of providing employees with use of a hotel room to sleep if an employee works two consecutive shifts separated by only a few hours, provided that the hotel is not fully occupied. (Pl.'s 56.1 ¶ 59.) According to Lambert, Benabou told Lambert during this time that “he was going upstairs to sleep because he got a hotel room, ” (Lambert Dep. Tr. 155:16-22), which indicated to Lambert that Benabou's request was approved. However, Trump's records do not reflect that Benabou was given a hotel room in December 2013. (Getman Decl. ¶ 17.)

         E. Lambert's Locker Is Vandalized

         On or about March 6, 2014, Lambert forwarded a letter to Rosen complaining that on February 23, 2014, “he found his locker open and a sticker of a face in black and white color was taped to [it].” (Pl.'s 56.1 ¶ 62.) In the letter, Lambert advised Rosen that he had complained about the situation to Midouin and asked for a different locker. (Id.) In response to his request, Midouin had stated that there were no lockers available, but that she could provide him with a new lock. (Id. ¶¶ 62-63.) Lambert rejected this offer, nor did he change the lock himself. (Id. ¶ 64.) Lambert never found his locker opened again. (Id.) Plaintiff “did not ask for the alleged sticker on his locker to be removed, nor did he try to remove it himself.” (Id. ¶ 65.)

         F. Lambert Is Asked to Shave

         Trump's associate handbook provides that “[m]ustaches and [b]eards are acceptable if trimmed and neat and do not extend below the upper lip.” (Id. ¶ 24; McCabe Aff. Ex. O.) On or about June 11, 2014, Lambert mailed a letter to Prince Sanders, the Hotel Manager of Trump, providing a doctor's note that stated that Lambert had a skin condition (the “June Doctor's Note”). (Pl.'s 56.1 ¶ 25; McCabe Aff. Ex. P.) The June Doctor's Note stated that Lambert had been advised by his doctor to not shave his beard until his skin condition resolved. (Pl.'s 56.1 ¶ 25; McCabe Aff. Ex. P.)

         In the letter to Sanders, Lambert alleged that (1) on May 4, 2014, Calderon asked him to shave and threatened to write him up; (2) on May 11, 2014, Calderon again asked him why his hair was not trimmed, and said “this is the last time I am telling you to trim your hair off;” (3) on May 17, 2014, Calderon again asked why he was not shaved, told Lambert that he was going to bring it up in a meeting with Sanders, and suggested that Lambert get a doctor's note; (4) on May 24, 2014, Samuel Adote, a bellman, asked Lambert why he was not shaved; (5) on that same day, Sanders asked Lambert why he was not shaved and suggested that Lambert buy ointment for his skin; and (6) on May 18, 2014, a manager named Hector told Lambert that he “must shave now.” (Pl.'s 56.1 ¶ 28 (quoting McCabe Aff. Ex. Q).) Sanders forwarded the letter and the June Doctor's Note to Helen Getman, the Area Director of Human Resources, who promptly contacted Lambert to set up a meeting. (Id. ¶ 26.)

         One week later, on June 18, 2014, Lambert met with Getman and advised her that Calderon and other Trump employees had requested that Lambert shave, despite his skin condition. (Id. ¶ 27.) Getman began an investigation into Lambert's allegations, interviewing Calderon, Sanders, and the other individuals identified by Lambert. (Id. ¶ 29.) Getman directed each individual who she interviewed to refrain from asking Lambert to shave and from engaging in discussion with Lambert on the topic of shaving. (Id. ¶ 30; Getman Decl. ¶ 21; Calderon Dep Tr. 26:23-27:6.)[9] Lambert does not recall being asked to shave after the meeting with Getman. (Lambert Dep. Tr. 288:14-22.) At his deposition, Lambert testified that, despite recording all incidents of alleged discrimination in a journal that he kept, he did not record being asked to shave by anyone at Trump after meeting with Getman on June 18, 2014. (Id. at 288:23-289:12.)

         G. Lambert Is Called “Gay”

         On July 3, 2014, Lambert alleged in a letter to Suzie Mills, Lambert's Hiring Manager, that a bellman at Trump called him gay. (Pl.'s 56.1 ¶ 33; McCabe Aff. Ex. W.) According to Lambert, the bellman called him gay in retaliation for Lambert's charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Pl.'s 56.1 ¶ 35.) Lambert acknowledges that he never told the bellman that he filed the EEOC Charge, and he does not know whether the bellman was aware of the EEOC Charge. (Id.)

         H. Lambert Is Physically Threatened

         On July 14, 2014, Lambert was working with Tom Rich, a Security Supervisor at Trump. (Id. ¶ 36.) Rich asked Lambert to perform a “security-related function, ” and it was within Rich's job duties to assign such a function to Lambert. (Id. ¶¶ 36-38.) According to Lambert, Lambert asked Rich why he was being asked to perform this security-related function, and Rich stated, “you think you are tough, you aren't untouchable, they don't have to shoot you, you can be paralyzed.” (Id. ¶ 37.) Lambert did not report Rich's comments to the police or to Human Resources. (Id. ¶¶ 39-41.) Two days after Rich's threat, Plaintiff met with Getman, but made no mention of Rich's alleged threat. (Id. ¶ 40.) Plaintiff did not advise Trump of Rich's alleged threat until he filed his complaint in this action. (See Id. ¶ 41.)

         I. Lambert Resigns

         On July 29, 2014, Lambert was injured lifting a laundry bag and took workers' compensation leave beginning on July 29, 2014. (Id. ¶ 68.) From that date until March 2015, Lambert was on workers' compensation leave. (Id. ¶ 72.) Between July 29, 2014 and March 12, 2015, no one at Trump made any comments to Plaintiff about his race, national original, or disability. (Id. ¶ 74.) Lambert planned on returning to work up to and including February 2015, and he felt safe returning at that time. (Lambert Dep. Tr. 302:13-304:21.) However, in March 2015, Lambert believed he could no longer return to work because he did not feel safe. (Id. at 303:23-304:21.) On March 13, 2015, Lambert resigned from his employment at Trump, alleging that he was constructively discharged. (McCabe Aff. Ex. EE.)

         II. Procedural History

         Plaintiff commenced this action on January 26, 2015. (Doc. 1.) After the parties agreed to two stipulations granting Defendants additional time to answer, move, or otherwise respond to the complaint, (Docs. 6-7), Defendants filed their answers on April 17, 2015, (Docs. 9-11).

         An initial pre-trial conference was held on July 15, 2015. (Dkt. Entry July 15, 2015.) A case management plan and scheduling order was entered into shortly thereafter, and the parties proceeded with discovery. (Doc. 17.)

         On July 13, 2016, Defendants submitted a pre-motion letter regarding their anticipated motion for summary judgment, (Doc. 32), and Plaintiff filed his response letter on July 20, 2016, (Doc. 33). On July 27, 2016, I held a post-discovery conference, which also served as a pre-motion conference, and granted Defendants leave to file their motion for summary judgment. (See Dkt. Entry July 27, 2016.)

         On August 18, 2016, Plaintiff sought leave to amend his complaint on consent from Defendants to add a claim of constructive discharge. (Doc. 35.) I granted Plaintiff leave to amend, (Doc. 36), and Plaintiff filed his Amended Complaint on August 25, 2016, (Doc. 39).

         On September 12, 2016, Defendants filed the instant motion for summary judgment, accompanying memorandum of law, and supporting materials. (Docs. 40-46.) On October 14, 2016, Lambert filed his opposition and supporting materials. (Docs. 47-51.) After I granted an extension of time for Defendants to submit their reply, (Doc. 53), Defendants filed their reply and supporting materials on November 7, 2016, (Docs. 54-58).

         III. Legal Standard

         Summary judgment is appropriate when “the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed. R. Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id.

         On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial, ” id. at 256, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1). In the event that “a party fails . . . to properly address another party's assertion of fact as required ...

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