Habe v. 333 Bayville Avenue Restaurant Corp. et al, No. 2:2009cv01071 - Document 52 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER denying 39 Motion for Summary Judgment. For the foregoing reasons, Defendant's motion (Docket Entry 39) is DENIED in its entirety. So Ordered by Judge Joanna Seybert on 1/12/12. C/ECF (Valle, Christine)
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Habe v. 333 Bayville Avenue Restaurant Corp. et al Doc. 52 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------X BRIDGET HABE, Plaintiff, -against- MEMORANDUM & ORDER 09-CV-1071(JS)(ETB) 333 BAYVILLE AVENUE RESTAURANT CORP., Defendant. --------------------------------------X APPEARANCES: For Plaintiff: Arthur H. Forman, Esq. 98-20 Metropolitan Ave. Forest Hills, NY 11375 For Defendant: Russell G. Tisman, Esq. Christopher G. Gegwich, Esq. Forchelli Curto Deegan Schwartz Mineo Cohn & Terrana, LLP 330 Earle Ovington Blvd., Suite 1010 Uniondale, NY 11553 SEYBERT, District Judge: Plaintiff Bridget Habe sued Defendants 333 Bayville Avenue Restaurant Corporation (the “Corporation”) and its sole shareholder, Plaintiff has James since Scoroposki, for discontinued employment her case discrimination. against Scoroposki (Docket Entry 14), and the Corporation now moves for summary judgment. For the following reasons, this motion is DENIED. Dockets.Justia.com BACKGROUND1 The Corporation owns and operates an upscale restaurant and catering facility at the Crescent Beach Club (the “Restaurant”) overlooking the Long Island Sound in Bayville, New York. (Def. 56.1 Stmt. ¶ 1.) Plaintiff Assistant Restaurant Manager in April 2001. Stmt. ¶ 3.) was hired as an (Pl. 56.1 Cntr- She was promoted to Restaurant Manager in 2002 and served in that position until she was fired. As the Restaurant Manager, Plaintiff was responsible for the day-to-day operations of the Restaurant’s “front of the house,” meaning generally the operations of the Restaurant that occurred in the public eye. (See Def. 56.1 Stmt. ¶¶ 5-6.) Plaintiff reported to William Meis, the Restaurant’s General Manager, and she was ultimately responsible to Scoroposki. (Id. ¶ 8.) Although he had no day- to-day responsibilities for the Restaurant, Scoroposki set the objectives and direction of the business and had the authority to fire Restaurant employees at will. (Id. ¶¶ 8-9.) Scoroposki and Meis viewed Plaintiff’s initial performance as Restaurant Manager as satisfactory, and Plaintiff received annual raises and bonuses. (Id. ¶¶ 13-14.) As late as February 28, 2006, Meis told Plaintiff that her performance had been excellent and that she was approved for 1 To the extent that the parties dispute the facts underlying the following discussion, the Court accepts Plaintiff’s version as true for the purposes of this motion. 2 another annual raise. 84.) (Pl. 56.1 Cntr-Stmt. ¶ 16; Habe Dep. 83- During that same conversation, Plaintiff told Meis that she was pregnant. immediately (Habe Dep. at 131; see Meis Dep. 83.) informed Scoroposki (Scoroposki Dep. 33), Meis and Plaintiff told Scoroposki directly about her pregnancy on March 1, 2006 (Def. 56.1 Stmt. ¶ 82). 11, 2006, ten days later. Plaintiff was fired on March (Id. ¶ 89.) Plaintiff had never received any written warnings about her performance (Pl. 56.1 Cntr-Stmt. ¶ 27), unlike other Restaurant employees who had been fired. Peter Bruce, Plaintiff’s predecessor as Restaurant Manager, received at least two written warnings before being fired for misconduct (Meis Dep. 35-36), and one of her successors received one or two written warnings before being fired for sexual harassment (id. at 118-19). Meis testified that it was his policy to give employees one or two written warnings before terminating them. (Id.) In defense, the Corporation maintains that, beginning in 2005, Scoroposki became dissatisfied with Plaintiff’s performance for reasons that included her arriving to meetings late and unprepared and her falling short of the Restaurant’s sales goals. (See, e.g., Def. 56.1 Stmt. ¶¶ 16, 21). According to the Corporation, Scoroposki’s frustration with Plaintiff hit its boiling point on Valentine’s Day 2006, the Restaurant’s most important day of the off-season. 3 According to Scoroposki, Plaintiff arrived late and did not prepare the facility for a smoothly-functioning evening. 40-58.) Although (See, e.g., Def. 56.1 Stmt. ¶¶ Scoroposki had considered firing Plaintiff throughout the fall of 2005, the Valentine’s Day incident was what finally Manager. convinced him that (Scoroposki Dep. 33.) he needed a new Restaurant He had several conversations with Meis between February 21 (the day Meis returned from a vacation) and February 23. (Def. 56.1 Stmt. ¶ 72.) He claims that he told Meis to fire Plaintiff during a call on February 23, before he learned that Plaintiff was pregnant. 75.) Plaintiff disputes Defendant’s account (Id. ¶¶ 73, because, among other things, she was told that her work was excellent as late as February 2006 and Meis spoke with Defendant’s controller to arrange Plaintiff’s raise after Meis returned from vacation. (Pl. 56.1 Cntr-Stmt. ¶ 29.) DISCUSSION Plaintiff asserts claims for unlawful termination under Title VII and the New York State Human Rights Law, N.Y. EXEC. LAW § 290 et seq. (the “NYSHRL”). Defendant argues that Plaintiff cannot show that she was wrongfully terminated and that, even if she could, she is not entitled to front or back pay because she did not conduct a reasonable search for new employment. (Def. Br. 13, 17.) 4 The Court will discuss the standard governing summary judgment motions and then turn to the parties’ arguments. I. Summary Judgment Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must “come forward with 5 specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S. Ct. 2505, 2514-15, 91 L. Ed. 2d 202, 218 (1986). allegations or denials will not suffice.” 781 F.2d 319, 323 (2d Cir. 1986). “Mere conclusory Williams v. Smith, And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). II. Defendant is not Entitled to Summary Judgment Questions of material fact preclude summary judgment in this case. A. Plaintiff may have been Wrongfully Terminated Because there is no direct evidence of discrimination, Plaintiff’s claims that she was wrongfully fired because of her pregnancy are governed by the familiar McDonnell Douglas burdenshifting framework. E.g., DeMarco v. CooperVision, Inc., 369 F. App’x 254, 255 (2d Cir. 2010) (noting that McDonnell Douglas governs pregnancy discrimination claims under both Title VII and the NYSHRL) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In this analysis, Plaintiff bears the initial burden of establishing a prima facie case of discrimination. F.3d 396, 401 (2d Cir. 1998). 6 Kerzer v. Kingly Mfg., 156 If she satisfies this requirement, the burden shifts to Defendant to articulate legitimate, nondiscriminatory reason for its action. the burden shifts back Defendant’s stated reason discrimination. to Plaintiff was to a merely offer pretext Id. Then, evidence for a that unlawful Id. Plaintiff has established a prima facie case of pregnancy discrimination. “A plaintiff can establish a prima facie discrimination case of pregnancy under Title VII by showing that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position remained open and was ultimately filled by a non-pregnant employee.” Id. (quoting Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)). “Alternatively, a plaintiff may establish the fourth element of a prima facie case by demonstrating that the discharge occurred in circumstances discrimination.” giving Id. rise to an inference of unlawful With respect to the second element, the question is whether Plaintiff was qualified for her job in that she had “the basic skills necessary.” DeMarco v. Stony Brook Clinical Practice Mgmt. Plan, 348 F. App’x 651, 653 (2d Cir. 2009). Here, there is no serious question that Plaintiff (i) was a member of a protected class; (ii) had the basic skills required to be the Restaurant Manager, a position that she filled for four years; (iii) was fired; and (iv) was replaced by 7 Steven Kelban, a non-pregnant employee. See Spadaro v. McKeon, 693 2010) F. Supp. plaintiff was sufficient 2d 183, replaced to discrimination). 190 with establish (N.D.N.Y. non-pregnant, prima facie (evidence male that employee case of was pregnancy Thus, Plaintiff has established a prima facie case of discrimination. “[O]nce a plaintiff establishes a prima facie case of pregnancy produce discrimination, evidence ‘which, the burden taken is as on true, the defendant to would permit the conclusion that there was a nondiscriminatory reason for the adverse action.’” Kerzer, 156 F.3d at 402 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)). Defendant has done so here; an employee’s poor performance is a legitimate, nondiscriminatory reason to discharge that employee. Lambert v. McCann Erickson, 543 F. Supp. 2d 265, 279 (S.D.N.Y. 2008). At this point, the burden shifts back to Plaintiff, who must offer evidence sufficient to convince a reasonable jury that Defendant’s stated reason was merely a pretext for unlawful discrimination. Kerzer, 156 F.3d at 401. “An employer's reason for termination cannot be proved to be a pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was (quoting Hicks, 509 U.S. at 515). 8 the real reason.’” Id. “In the summary judgment context, this means ‘that the plaintiff must establish a genuine issue of material fact either through direct, statistical or circumstantial evidence as to whether the employer’s reason for discharging her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision.’” Id. (quoting Gallo v. Prudential Residential Svcs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994)). Plaintiff has proffered enough circumstantial evidence of discrimination to survive summary judgment. Read in Plaintiff’s favor, the record shows that Plaintiff was fired shortly after she told Meis and Scoroposki that she was pregnant despite a recent favorable performance review and in contravention of a policy whereby underperforming employees were given at least one written warning before they were terminated. Defendant maintains that Scoroposki had already decided to fire Plaintiff by the time he learned that she was pregnant and that this precludes any finding that he discriminated against her. (Def. Br. 13-14). Defendant concedes, however, that Scoroposki learned of Plaintiff’s pregnancy before Plaintiff was actually fired (Def. Plaintiff 56.1 has Stmt. offered ¶ 78), enough and, evidence in to the Court’s raise a view, genuine question whether Scoroposki decided to fire Plaintiff before or after he learned that she was 9 pregnant. Accordingly, Defendant’s motion for summary judgment on Plaintiff’s wrongful discharge claims is denied. B. Plaintiff’s Damages Defendant also moves for a summary determination that Plaintiff failed reasonable to search alternative, mitigate for that any her damages substitute award of showing can “(1) reduce that Plaintiff’s suitable work conducting employment back pay eventual elimination of Plaintiff’s position. Defendant by in the reflect must the (Def. Br. 17-24.) entitlement existed, and, and to backpay (2) that employee did not make reasonable efforts to obtain it.” made no reasonable efforts to pursue by the Hawkins v. 1115 Legal Svc. Care, 163 F.3d 684, 695 (2d Cir. 1998). Plaintiff a If employment, Defendant would be relieved of its burden to show that suitable replacement work was available. Greenway Hotel, 143 F.3d 47, 54 (2d Cir. 1998). mitigate is not an onerous burden. It is context-specific and “entails v. Buffalo Hilton An employee’s duty to Hawkins, 163 F.3d at 695. a consideration of such factors as the individual characteristics of the claimant and the job market.” Dailey v. Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997) (internal quotation marks omitted). Whether she has made reasonably diligent efforts to secure another job is usually a question for the jury. 10 Hawkins, 163 F.3d at 696. Having reviewed the relevant portions of the record, the Court concludes that Defendant has not satisfied its burden of establishing as a matter of law that Plaintiff failed to conduct a reasonably diligent individual characteristics. Plaintiff essentially job search in light of her For example, Defendant argues that removed herself from the job market between June and September 2007 because the documentation of her job search includes during that period. only classified (Def. Br. 18.) ads that were published Defendant cites Booker v. Taylor Milk Co., Inc., 64 F.3d 860, 865 (3d Cir. 1995), for the proposition that “constant and continuing review of want ads insufficient to constitute mitigation.” (Def. Br. 18.) That case, however, is distinguishable because, as Defendant concedes (Def. 56.1 Stmt. ¶ 115.), Plaintiff testified at her deposition that she actually applied for some of these positions, even if her record-keeping Accordingly, was Defendant not is perfect not (Pl. entitled Dep. to 229-30). a summary determination that Plaintiff did not mitigate her damages. Defendant also asks that, to the extent that Plaintiff prevails at trial, any backpay award reflect that Defendant eventually eliminated the full-time restaurant manager position in favor of an arrangement whereby it employs someone who works as a restaurant manager during the busy season and as a parttime server during the off-season. 11 Defendant is correct that backpay awards should generally take into account an employer’s legitimate, nondiscriminatory decision to eliminate a position or, as in this case, reduce the number of hours it employs someone in a particular DISCRIMINATION § 92.06 (2011). position. See LARSON ON EMPLOYMENT The Court declines to make a formal ruling on this issue at this time, however, because the record is not clear when Defendant made this change. (See Def. 56.1 Stmt. ¶ 105 (not specifying a date at which Defendant switched to a part-time restaurant manager).) CONCLUSION For the foregoing reasons, Defendant’s motion (Docket Entry 39) is DENIED in its entirety. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: January 12 , 2012 Central Islip, New York 12
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