ANOTHER EMPLOYMENT DISCRIMINATION RULING FROM EDNY

Jackson v. SHERATON NEW YORK TIMES SQUARE HOTEL, No. 19-CV-4099 (AMD) (RML), Dist. Court, EDNY June 3, 2021:

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Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment" on the basis of the individual's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Disparate treatment claims under Title VII are analyzed using the McDonnell Douglas burden-shifting framework. Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 209-10 (E.D.N.Y. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). Under the framework, the plaintiff must first establish a prima facie case of discrimination. See id. Once the plaintiff makes that showing, "the burden of production [shifts] to the employer and require[es] the employer to come forward with its justification for the adverse employment action against the plaintiff." Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). If the employer meets this burden, "the presumption `drops out of the picture'" and the plaintiff must demonstrate that the employer's explanation is pretextual. Id. (citing St. Mary's Honor Cir. v. Hicks, 509 U.S. 502, 511 (1993)).

To establish a prima facie case of discrimination, the plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she has suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802-04 (1973); Littlejohn, 795 F.3d at 307. The defendant does not dispute that the plaintiff, an African-American woman, is a member of a protected class. Nor does the defendant deny that the plaintiff was qualified for her position, or that she suffered an adverse employment action when she was terminated. The only disputed issue is whether the defendant fired the plaintiff under circumstances giving rise to an inference of discrimination.

The plaintiff has not established an inference of discrimination. She cites no evidence, and indeed does not claim, that anyone in a supervisory position disparaged her because of her race or made any racially charged statements about her or in her presence. In fact, the plaintiff cites only one incident: that in 2016, two years before the altercation that led to the plaintiff's termination, Ms. Acevedo called her a "fat black bitch." (ECF No. 6 at 7.) That statement, while certainly inappropriate and upsetting, does not raise a plausible inference that the defendant fired the plaintiff because of her membership in a protected class. Rather, that comment, far removed in time and made by a coworker with no authority over the plaintiff, is the kind of "stray remark" that courts have found insufficient to constitute employment discrimination. Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998). See also Jowers v. Family Dollar Stores, Inc., No. 09-CV-2620, 2010 WL 3528978, at *1 (S.D.N.Y. Aug. 16, 2010), aff'd., 455 F. App'x 100 (2d Cir. 2012) (noting that the single statement that "black people are lazy and incompetent" one month before the plaintiffs termination was a stray remark insufficient to establish an inference of discrimination on its own); Maqsood v. Bell Sec., Inc., 249 F. App'x 229, 230 (2d Cir. 2007) (summary order) (holding that sporadic comments made two years before the plaintiffs termination did not support a claim under Title VII for discrimination); Rosenfeld v. Hostos Cmty. Coll., No. 10-CV-3081, 2013 WL 1285154, at *5 (S.D.N.Y. Mar. 29, 2013) ("[S] tray remarks, without more, and with no nexus to the adverse employment action in this case, [do] not support ... an inference" of discrimination).^[8]

Because the plaintiff has not established a prima facie case, it is unnecessary to undertake the burden shifting analysis. Nevertheless, even if the plaintiff had made out a prima facie case, the defendant provides legitimate reasons for its decision to terminate her. As the recording makes clear, the plaintiff cursed at and threatened Ms. Acevedo for almost a half hour. She called her, among other things, an "idiot," a "stupid bitch," and a "dumb ass." The plaintiff also threatened that if Ms. Acevedo said "something else ... it's going to get real fucking ugly in here. Real fucking ugly ... fucking asshole. Say something else to me." The plaintiff carried on this way in front of other employees and guests. This behavior was legitimate grounds for termination; it violated the hotel's standards of conduct policies on workplace violence, anti-discrimination, unwelcome harassment and retaliation. Howell v. Montefiore Med. Ctr., 2016 WL 880373, at *6 (S.D.N.Y. Feb. 16, 2016), aff'd, 675 F. App'x 74 (2d Cir. 2017) (holding that the employer's determination that the plaintiff had violated the employer's policies constituted a legitimate reason to fire the plaintiff). Significantly, too, the defendant did not fire the plaintiff on the spot, despite the recorded evidence. It was only after a review by the hotel and then a determination by an impartial arbitrator that the plaintiff violated the hotel's policies that the defendant terminated the plaintiff's employment. Under these circumstances, a reasonable juror could conclude that the defendant fired the plaintiff because she violated the defendant's workplace policies. Thus, the defendant has met its burden to articulate a legitimate reason for termination.^[9]

Accordingly, the plaintiff's discrimination claim under Title VII is dismissed.

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