Braunstein v. Sahara Plaza LLC

TINA MICHELLE BRAUNSTEIN, Plaintiff, v. SAHARA PLAZA, LLC, et al., Defendants.

No. 16-CV-8879 (VSB)

United States District Court, S.D. New York

June 28, 2021

Tina Michelle Braunstein

Bronx New York

Pro se Plaintiff.

David I. Rosen

Sills Cummis & Gross, P.C.

New York, New York

Counsel for Defendants.

OPINION & ORDER

Vernon S. Broderick, United States District Judge.

Plaintiff Tina Braunstein (“Plaintiff” or “Braunstein”) brings this employment discrimination action against Defendants Sahara Plaza, LLC and The Plaza Hotel, a Fairmont Managed Hotel (collectively “Defendants”), asserting claims of unlawful discrimination, retaliation, and hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290e et seq., the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. § 8-107, and the Age Discrimination and Education Act (“ADEA”), 29 U.S.C. § 621 et seq. She also asserts a common law claim of “negligent supervision.”

Before me are (1) Defendants' motion for summary judgment on all of Plaintiff's claims and (2) Plaintiff's motion to reopen discovery. For the reasons set forth below, Defendants' motion for summary judgment directed at Plaintiff's federal and state discrimination, retaliation, and hostile work environment claims, and Plaintiff's negligent supervision claim, is GRANTED. Defendants' motion for summary judgment as to Plaintiff's remaining state law claims is GRANTED without prejudice to refiling in state court. Plaintiff's motion to reopen discovery is DENIED.

1. Factual Background^[1]

Plaintiff alleges that she is a Jewish woman who was forty-eight years old at the time she filed the complaint in 2017. (Compl. ¶ 6.)^[2] Plaintiff was employed by Defendants at the Palm Court, a restaurant located in The Plaza Hotel in New York City, beginning October 27, 2014. (Defs.' 56.1 ¶ 1; Pl.'s 56.1 ¶ 1.)^[3] Plaintiff was hired as an evening bartender for a probationary period of one hundred fifty (150) days, (Defs.' 56.1 ¶ 5), along with three other evening bartenders: James Menite (“Menite”), Edwin Marini (“Marini”), and Roberto Rosa (“Rosa”), (id. ¶ 10). The job requirements for the bartender position included “[e]xcellent communication . . . skills, ” “[s]trong interpersonal . . . abilities, ” and the “[a]bility to work cohesively with fellow colleagues as part of a team.” (Id. ¶ 2; Pl.'s 56.1 ¶ 2.)

Plaintiff was supervised or managed by several different individuals-namely, Johann Widnersson (“Widnersson”), Amin Deroui (“Deroui”), and Martin Mariano (“Mariano”). (Defs.' 56.1 ¶¶ 8-9.) The parties disagree about the extent to which certain of these individuals actually supervised Plaintiff. (Pl.'s 56.1 ¶ 8.) Defendant contends that Plaintiff's direct supervisor was Widnersson, the Beverage Manager, while Deroui, the Food and Beverage Manager, also supervised her from time to time. (Defs.' 56.1 ¶ 8.) According to Plaintiff and the testimony of Mariano, Deroui was the most senior manager on the floor at the time Plaintiff was employed. (Pl.'s 56.1 ¶ 8; Mariano Dep. Tr. 122:5-123:8).^[4]

Plaintiff alleges that on November 28, 2014, a rotating schedule was created to establish assignments for each of the four bartenders. (Compl. ¶ 24.) Plaintiff alleges that she was assigned to be lead bartender on Tuesday and Saturday evenings. (Id.) Otherwise, she alleges, she, Rosa, and Marini rotated as “second bartender, service bartender or bar back.” (Id.) The bar back position, she alleges, involved “cleaning glasses, food containers[, ] and stocking supplies and other menial duties.” (Id.) Soon after the schedule was created, Plaintiff alleges, Menite “refused any rotations” and eventually informed Plaintiff he was taking over the Saturday night lead bartender shift. (Id. ¶¶ 25, 28.)

On December 2, 2014, Plaintiff alleges, a meeting on internal tipping policies was held. (Id. ¶ 26.) Although other bartenders and managers attended, she alleges, she was not notified of the meeting or invited to it. (Id.) On December 8, 2014, Plaintiff alleges, the day bartender, Edmund McSloy, ^[5] prevented her from setting up for her shift, including by physically blocking her way and yelling at her. (Id. ¶ 27; Defs.' 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.) It is undisputed that Plaintiff reported the alleged incident to Mariano, the Hotel's Director of Food and Beverage, who responded with an apology. (Compl. ¶ 27; Defs.' 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.) Defendants contend they conducted an investigation into this incident and that Marini reported witnessing Plaintiff “bullying” McSloy beforehand. (Defs.' 56.1 ¶ 14.) Plaintiff disagrees with this account of events and contends that Defendants did not conduct an investigation. (Pl.'s 56.1 ¶ 14.)

On December 10, 2014, Plaintiff alleges that the morning bar team broke the key to the cash box, and Deroui told her to leave it open as she was “only a glorified ‘bar back-woman's work.'” (Compl. ¶ 28.) On December 22, 2014, Plaintiff requested a meeting about the rotating schedule, at which she alleges Menite “refused to work any position other than Senior/Lead bartender.” (Id. ¶ 29.) Plaintiff alleges that Deroui subsequently told her to “stop being a baby and running to management, not ladylike.” (Id. ¶ 30.) Plaintiff reported to Widnersson and a Human Resources staff person that Deroui had “made a couple of unprofessional and in appropriate [sic] comments to [her], ” including telling her to “grow up and stop being such a baby.” (Defs.' 56.1 ¶ 19; Wenger Aff. Ex. K;^[6] Pl.'s 56.1 ¶ 19.)

On January 9, 2015, Plaintiff received her 60-day performance evaluation, which was poor. (Compl. ¶ 32; Pl.'s Decl. Ex. 14.). She e-mailed Mariano, Widnesseron, and a Human Resources staff member, stating her disagreement with the evaluation. (Defs.' 56.1 ¶ 22; Pl.'s 56.1 ¶ 22.) She subsequently met with Mariano on January 15, 2015, at his suggestion, to discuss her review. (Defs.' 56.1 ¶¶ 29, 30, 32; Pl.'s 56.1 ¶¶ 29, 30, 32.) At that meeting, which

Plaintiff recorded, the parties agree that Mariano made the following statement:

We're a team, we need to work together....Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

(Recording 3-4.)^[7] Plaintiff replied, “Yeah and my only thing is, and this may sound a little obnoxious, but I'm just going to own it, this image has worked my whole career for 20 years.” (Id.) Plaintiff also admitted during her deposition that she told Mariano during one of their conversations that she was “someone with an edge, ” and that she was referring to her “personality.” (Defs.' 56.1 ¶ 34; Pl.'s 56.1 ¶ 34.)

On January 29, 2015, Plaintiff alleges, she overheard Deroui say, “what do you expect, Jews own all the media and the banks.” (Compl. ¶ 33.) She also alleges that on February 20, 2015, Mariano and Rosa spoke in Spanish about her “in derogatory terms.”^[8] (Id. ¶ 35.) She also states that throughout February and March, Rosa and Marini were persistently late or no-shows but were not reprimanded, and that Menite was chronically late and drank alcohol to excess while at work. None were reprimanded for this behavior, she alleges. (Id. ¶ 36; Pl.'s 56.1 ¶ 19.)

It is undisputed that, prior to the end of her probationary period, on March 13, 2015, Plaintiff's employment was terminated, while Menite, Marini, and Rosa were retained. (Defs.' 56.1 ¶ 38; Pl.'s 56.1 ¶ 38.)

II. Procedural History

Plaintiff commenced this action on November 15, 2016 by filing a complaint. (Doc. 1.) At the time, she was represented by counsel, E. Gordon Haesloop (“Haesloop”). Defendants filed an answer on February 8, 2017. (Doc. 8.) On March 10, 2017, I entered a case management plan and scheduling order, whose deadlines were then extended on several occasions. (See Docs. 12-19.) On October 2, 2017, Defendants filed a letter motion for leave to file a motion for summary judgment, (Doc. 21), and Plaintiff filed a letter in opposition on October 4, 2017, (Doc. 22). I held a post-discovery conference on October 6, 2017, at which I heard counsel's preliminary arguments on the proposed motion.

On November 20, 2017, Plaintiff's counsel sought leave to withdraw as counsel. (Doc. 23.) I granted this request on November 21, 2017, and stayed the action for thirty days to allow Plaintiff to retain new counsel. (Docs. 25.) I extended this deadline several times because Plaintiff informed me that she was unable to retain new counsel. (See Docs. 29-32.) Ultimately, Plaintiff appeared pro se and remains unrepresented. (Doc. 33.)

On March 14, 2018, Defendants filed a motion for summary judgment, along with a memorandum of law, Local Civil Rule 56.1 statement, the Affidavit of Karen Wenger, with exhibits the Declaration of David Rosen, with exhibits, and a Local Rule 56.2 notice to pro se litigant who opposes a motion for summary judgment. (Docs. 34-39.) Plaintiff then requested and received an extension of time to respond. (Docs. 41-42.) On May 24, 2018, Plaintiff filed a notice of motion to reopen discovery pursuant to Fed.R.Civ.P. 56(d)(2), (Doc. 43), which Defendants opposed by letter on May 25, 2018, (Doc. 44). On June 4, 2018, Plaintiff filed a declaration in opposition to Defendants' motion, with exhibits, and a response to Defendants' 56.1 statement. (Docs. 45-46.) Defendants filed their reply...