Dickens v. Hudson Sheraton Corp.

167 F.Supp.3d 499

Ernest Dickens, Plaintiff,

v.Hudson Sheraton Corporation, LLC ; Tom Mituzas; Orlando Trinidad; Geoffrey Horner; and Jordain Francois, Defendants.

15 Civ. 2105 (AJP)

United States District Court, S.D. New York.

Signed March 1, 2016

Ambrose Wotor Wotorson, Jr., Law Offices of Ambrose Wotorson, P.C., New York, NY, for Plaintiff.

Alfred N. Metz, Keya Chaim Denner, Norris, McLaughlin & Marcus, P.A., Deutsch, Metz & Deutsch, LLP, New York, NY, David E. Cassidy, Norris, McLaughlin & Marcus, Bridgewater, NJ, for Defendants.

OPINION & ORDER

Andrew J. Peck, United States Magistrate Judge

Plaintiff Ernest Dickens brings this action against Hudson Sheraton Corporation, Tom Mituzas, Orlando Trinidad, Geoffrey Horner and Jordain Francois for their alleged violation of various anti-discrimination laws. (See generally Dkt. No. 22: 2d Am. Compl.) Dickens previously dismissed his second, third, sixth and seventh causes of action. (Dkt. No. 44: 9/21/15 Order.) Presently before the Court is defendants' January 8, 2016 summary judgment motion on Dickens' remaining claims, under the Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. § 1981, and Title VII. (Dkt. No. 58.) For the reasons set forth below, the motion is GRANTED.

BACKGROUND

Dickens has been employed by defendant Hudson Sheraton Corporation (“the Hotel”) since 1983 as a “ 'houseman.' ” (Dkt. No. 62: Def. Rule 56.1 Stmt. ¶ 1; Dkt. No. 67: Pl. Rule 56.1 Counter Stmt. ¶ 1.) Dickens is a union member with the New York Hotel and Motel Trades Council, Local 6. (Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 5.) Dickens claims that in 1996, he was put in charge of the Hotel's supply room as a “ 'team leader.' ” (Dkt. No. 66: Dickens Aff. ¶ 2.) During his employment with the Hotel, Dickens has received “all salary raises and other benefits due to him under the terms of the” collective bargaining agreement between the Hotel and the Union. (Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 42.)

Defendant Tom Mituzas joined the Hotel's Human Resources Department in 1994 as a manager and became Area Director in 2007. (Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 2.) Mituzas' positions entail familiarity with complaints made to the Hotel's Human Resources Department by employees or the Union on their behalf. (Id. )

Dickens alleges that defendants, primarily through Mituzas, have discriminated and retaliated against him since 2001. (See Dkt. No. 22: 2d Am. Compl. (“SAC”) ¶ 1; Dickens Aff. ¶ 4.)

Dickens asserts that his conflict with Mituzas arose in 2001 when Dickens filed an age discrimination complaint with the New York State Division of Human Rights (“NYSDHR”) against housekeeping manager Igor Buercher. (Dickens Aff. ¶ 4.) Mituzas asked Dickens to voluntarily dismiss the complaint against Buercher, with whom Mituzas had a “professional and non-professional relationship”; Dickens refused and Mituzas “became enraged.” (Id. ) According to Dickens, Mituzas has “been engaged in various forms of intimidation and retaliation since that time, and has not behaved as a neutral Human Resources professional towards” Dickens. (Id. )

In July 2004, Dickens alleges that he made a sexual harassment complaint to the Hotel against coworker Ramon Santiago. (Dickens Aff. ¶ 5; Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 6.) Dickens was in his early sixties at the time. (See Dkt. No. 68: Dickens Br. at 7.) Mituzas, who “was in his 30s at the time” (Dickens Aff. ¶ 5), allegedly ignored Dickens' complaint and ordered him to attend anger management (Dickens Aff. ¶ 6; Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶¶ 6–8). Mituzas denies ordering Dickens to attend anger management in retaliation, and has no recollection of his complaint. (Dkt. No. 59: Mituzas Aff. ¶ 7; Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶¶ 6–8.)

In April 2005, Mituzas accused Dickens of threatening defendants Orlando Trinidad and Jordain Francois (Hotel employees in their forties at the time) at knife point. (Dickens Aff. ¶ 10.) Trinidad and Francois corroborated the threat. (Id. ) Dickens argues that these allegedly false allegations were “a continuation of the harassing and ridiculing behavior that had been occurring due to age and race, by Mituzas and by non-black and considerably younger 'housemen.' ” (Id. )

The Hotel's human resources department investigated the matter, leading to a labor mediation on October 7, 2005 at which Dickens was represented by his union. (Mituzas Aff. ¶ 8.) Dickens, the union, the labor mediator and the Hotel signed an agreement whereby Dickens released the Hotel from all liability and agreed to be evaluated by the union Health Assistance Program. (Id. & Ex. A: Voluntary Settlement Agmt.) In return, Dickens' potential termination was converted to a one-day suspension. (Id. ) Although Dickens maintains that the settlement was a “forced agreement” and that Mituzas ordered him to attend counseling without cause (Dickens Aff. ¶ 11), defendants claim that the Health Assistance Program, not Mituzas, enrolled Dickens in the outpatient counseling program (Def. Rule 56.1 Stmt. ¶¶ 10–11; Mituzas Aff. ¶ 8).

Dickens alleges that he additionally was banned from part-time work on the Hotel bartending staff because of his threats. (Dickens Aff. ¶ 10.) Dickens claims that his bartending duties have never been reinstated; bartender positions have instead been given to “non-black and considerably younger” employees with less seniority. (Id. ) Defendants claim that Dickens is not, and has never been, a member of the bartending staff. (Mituzas Aff. ¶¶ 22–24; Def. Rule 56.1 Stmt. ¶¶ 27–31.)

On October 17, 2005, Dickens filed a NYSDHR age (but not race) discrimination complaint with respect to the ‘knife‘ incident. (Dkt. No. 60-1: Metz Aff. Ex. B at 20-22; see Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 12.) The NYSDHR dismissed the complaint on May 14, 2007, determining that there was no probable cause that the Hotel had engaged in any discriminatory practices. (Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 12; Metz Aff. Ex. C at 24–25.) The NYSDHR “investigation revealed in 1983, 1992, 2004 and 2005, [Dickens] was admittedly cited for inappropriate and or threatening behavior towards co-workers.” (Metz Aff. Ex. C at 24.) The NYSDHR further determined that the Hotel employed 133 employees who were similarly situated to Dickens, thirteen of whom were older than Dickens and ten were of similar age, i.e., in their sixties. (Id. at 25.) Dickens, however, informed the NYSDHR that “no other employees [were] subjected to similar treatment as he.” (Id. ) On August 20, 2007, the Equal Employment Opportunity Commission (“EEOC”) adopted the NYSDHR's findings. (Metz Aff. Ex. D at 27.) Dickens did not bring a federal lawsuit against the Hotel (until filing the instant action). (Def. Rule 56.1 Stmt. & Pl. Counter Stmt. ¶ 12.)

In June 2006, Dickens complained that he was sexually harassed by Hotel employee Julio Aparicio. (Dickens Aff. ¶ 12.) Dickens alleges that Mituzas did not investigate this allegation but nevertheless concluded it was false (id. ¶ 13), which Mituzas disputes (Mituzas Aff. ¶ 10).

In October 2008, Trinidad (who is approximately 20 years younger than Dickens) allegedly was given Dickens' team leader position and placed “ 'in charge' ” of the supply room without justification. (Dickens Aff. ¶ 16.) Several other unidentified, younger housemen thereafter “began to pervasively tease and ridicule” Dickens over his “apparent demotion,” which teasing continues to occur. (Id. ¶ 17; accord Dkt. No. 68: Dickens Opp. Br. at 15 (“Since 2008, plaintiff has also been subjected to discriminatory ridicule and incessant teasing over his no longer being in charge of the supply room....”).) Mituzas counters that “[t]here is no job title, position or classification for being 'in charge of the supply room', and there is no salary differential associated with that alleged position. While it is possible that Plaintiff perceived that he was 'in charge of the supply room' ..., that was not as a result of any action or determination by the Hotel or” Mituzas. (Mituzas Aff. ¶ 12; see Dkt. No. 72: Mituzas Reply Aff. ¶ 9.) Mituzas denies that Dickens complained to the Hotel about the teasing and ridicule surrounding his perceived demotion. (Mituzas Aff. ¶ 13.)

In March 2010, Dickens was ordered to work on the same shift with Trinidad, allegedly in violation of Hotel policy that workers who had prior disputes with each other would not be staffed together. (Dickens Aff. ¶ 19.) Dickens admits that there is no written policy, but says he “observed a practice in which disputants are separated by shift.” (Id. ¶ 20.) Mituzas responds that there is no such company policy; disputes between workers are evaluated on a case-by-case basis. (Mituzas Aff. ¶ 15; Mituzas Reply Aff. ¶ 10.) Mituzas was unable to locate any record of Dickens complaining about his shift assignments with Trinidad. (Mituzas Aff. ¶ 15.) Dickens has worked on shifts with Trinidad “on and off for the last twenty years.” (Id. )

In May 2010, Dickens claims he filed an internal grievance “claiming a pervasively hostile work environment, including teasing, on account of age and prior protected activities,” which defendants failed to investigate. (Dickens Aff. ¶ 22.) Mituzas has no recollection of such a complaint, and was unable to locate any record thereof. (Mituzas Aff. ¶ 16.)

In April 2011, Dickens was struck by a bicycle while walking to work after a lunch break. (Dickens Aff. ¶ 23.) Defendants claimed that Dickens was not scheduled to work any further that day, which barred him from collecting any workers' compensation benefits for his injury. (Id. ) On January 11, 2012, a Workers' Compensation Law Judge determined that Dickens “was on an unpaid lunch break when he suffered” his injury which therefore was not compensable. (Mituzas Aff. ¶ 17 & Ex. B at 19.) The Workers' Compensation Board affirmed on March 4, 2013. (Id. at 18–21.)

In November 2013, Dickens alleges that Trinidad recanted his April 2005...