Alfano v Starbucks Corp.
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Alfano v Starbucks Corp. 2012 NY Slip Op 31548(U) May 30, 2012 Sup Ct, Nassau County Docket Number: 8215/10 Judge: Thomas Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ........... [* 1] SHORT FORM ORDER SUPREME COURT - ST ATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice TRIALIIAS P ART 9 NASSAU COUNTY SHERRY ALFANO, INDEX NO. 8215/10 Plaintiff MOTION SUBMISSION DATE: 4/6/12 - against - CORP. , and ARISTOMENIS MENDRIOS individual , and IVY CUESTA , individual , and JENNA SIMONETTI , individual , and SASKIA TATTEGRAIN individual , and MARISA TORRS , individual , and KEVIN BREAKS TONE , individual ST ARBUCKS MOTION SEQUENCE NO. Defendants. The following papers read on this motion: Notice of Motion and Affidavits................................. Memorandum of Law in Support of Motion.............. Affirmation in Opposition...... .................................... Reply Affirmation....................................................... Memorandum of Law in Support of Reply...... RELIEF REOUESTED The defendants , Starbucks Corp. , (hereinafter referred to as " Starbucks ), Aristomenis Mendrinos , (hereinafter referred to as " Mendrinos " and " District Manager ), Ivy Cuesta , (hereinafter . referred to as " Vasquez , (her maried name was Cuesta), and " Store Manager ), Jenna Simonetti (hereinafter referred to as " Simonetti" and " Supervisor ), Saskia Tattegrain , (hereinafter referred to " and as " Tattegrain" and " Supervisor ), and Marisa Torres, (hereinafter referred to as " Torres Supervisor ), move , for an order pursuant to CPLR 93212 granting sumary judgment to the aforementioned defendants , (also referred to collectively as the " Starbucks defendants ), on plaintiffs claims for retaliatory discharge and refusal to promote under New York State Human Rights Law , and common law intentional infliction of emotional distress. The defendants submit a Memorandum of Law in support of the motion. The plaintiff, Sherr Alfano , (hereinafter referred to as " Alfano ), submits opposition. The defendants submit a reply affrmation and a Memorandum of Law in support of the reply. [* 2] The plaintiff initiated this action seeking monetar damages based upon the defendants alleged repeated and severe violations of the New York State Human Rights Law, Executive Law Section 290 et seq. NYSHRL" ), as well as common law torts of assault , battery and intention inflction of emotional distress. The plaintiff alleges five causes of action: (1) sexual harassment under NYSHRL against the Starbucks defendants , (2) retaliation against the Starbucks defendants under NYSHRL for failure to promote and wrongful termination , (3) intentional infliction of emotional distress against all defendants , (4) battery against defendant , Kevin Breakstone (hereinafter referred to as " Breakstone ), and (5) assault against Breakstone. The defendants , by way of the instant motion , seek summary judgment dismissing only plaintiff s second cause of action for retaliation , and third cause of action for intentional inflction of emotional distress. BACKGROUND Plaintiff commenced employment with Starbucks as a barista in Merrick , New York , in April 2008. As a barista , plaintiff made drinks for customers , worked on the register , and stocked and cleaned various areas of the store. Plaintiff remained a barista throughout her employment with Starbucks which ended with her termination on December 11 , 2009. Plaintiff worked at various locations for Starbucks from April 2008 to March 2009 , including Merrick , Uniondale , Levittown Roslyn , Massapequa , and Westbur. Plaintiff was transferred to the Starbucks store located at 55 Northern Boulevard , Great Neck , New York , (hereinafter referred to as the " Great Neck store ), in March , 2009 , where she remained until her termination in December , 2009. The defendants submit that on October 18 , 2008 , the plaintiff was issued her first written notice concerning her attendance issues on a Performance Review. Thereafter , plaintiff was issued a verbal warning concerning her attendance because plaintiff called in to advise that she would be late for her shift. A corrective action form followed providing that plaintiff s attendance violation was an ongoing problem. Defendants provide that on November 24 2008 , Alfano received a second written corrective action form for being late for two shifts , on December 1 2008 , and Januar 17 2009 , with warnings that future violations may result in future corrective action , including termination. Thereafter , in March , 2009 , plaintiff was transferred to the Great Neck store. Defendants submit that corrective action forms dated September 30 , 2009 , October 2 2009 , and December 7 2009 , reflect plaintiff s attendance issues , and the forms provided that further violations may result in further corrective action including separation. The defendant's Supervisor , Vasquez , decided to terminate plaintiffs employment on December 11 , 2009 when " Alfano again arrived late to work" On December 14 2009 , Starbucks responded to plaintiffs call to Parner Resources contesting her separation and Starbucks advised plaintiff it would review the circumstances of plaintiff s situation. Carie Glenn , Starbucks ' Parner Resource Manager asked Mendrinos , its District Manager , to gather information that led to plaintiff s separation, whereby Mendrinos provided Carie Glenn with summar of the corrective actions , citing six occasions of tardiness at the Great Neck store. The defendants set forth that Vasquez s discharge decision was upheld by Starbucks ' Regional Director within the New York Metro , Sean Zuckman , Mendrinos ' direct supervisor. [* 3] The plaintiff began working at the Great Neck store in March , 2009 , until her termination of December 22 2009. Plaintiff provides that from March 2009 until September 2009 , she had no written disciplinar write-ups from her supervisors , or any documented time and attendance issues in reporting to work , as confirmed by defendants in their moving papers. Plaintiff provides that prior to September , 2009 , she received a customer service award. Mendrinos testified that he had told plaintiff that " her customer service skills were phenomenal and that she s in the top of customer service skils , absolutely . Mendrinos didn t remember ifhe told plaintiff this prior to November 2009. The plaintiff provides that a customer , defendant , Breakstone , and Torres , Supervisor at the Great Neck store , met each other through the Great Neck store while Breakstone was a customer there. Plaintiff refers to Breakstone ' s testimony which provides that Breakstone frequented the Great Neck store , on average , five-to-six hours over the course of two- to-three days the Great Neck store including the time period from July, 2009 through December 11 2009. Torres testified that at some point , Torres and Breakstone became involved sexually, hugged at the Great Neck store , and provided Breakstone access to the employee s back offce , in violation of Starbucks ' policy. Tattegrain , Supervisor , testified that she was friends with Breakstone , a " regular customer " who she ate out in town with , allowed him , on at least one occasion that she recalled , access to the back office while plaintiff was also present in the back office. Breakstone testified that he remembers being permitted access to the back office of the Great Neck store on two or three occasions , but could not remember which Starbucks ' supervisor was on duty when he was permitted such access. Plaintiff testified that in September , 2009 , while plaintiffwas sitting at a desk , on a break in the back office ofthe Great Neck store , Tattegrain , Supervisor , and Breakstone , hugged each other and began a sexual encounter , whereby Breakstone unlawflly grabbed plaintiffs breast. Plaintiff testified she shouted Tattegrain s name , and Tattegrain responded " Sherr shut up " and continued the sexual encounter. Plaintiff provides that Tattegrain told her "that's just how Kevin is , and at a later time told plaintiff to " let (Breakstone) touch (her J" and give her a neck rub , and informed her that Breakstone wanted to take a picture of her. Plaintiff testified that on a separate occasion in September , 2009 she was cleaning the condiment stand when Breakstone unlawflly came up behind her , pressing himselfup against her groped her breast with one hand , and attempted to reach her private area with his other hand. Plaintiff pushed Breakstone away, at which point Simonetti , Supervisor , said " hey, what are you doing over there with my husband. Husband , come over and talk to wifey . Plaintiff notified Mendrinos about this incident inOctober, 2009 , who responded that plaintiff should tell Vasquez Store Manager. Plaintiff testified that in early October 2009 , she was inside the ladies room at the Great Neck store , cleaning, when Breakstone began to repeatedly knock at the door. Plaintiff testified that she cracked the door open , whereby Breakstone pushed himself in , pinned her against the wall , and sexually assaulted her and told her that if she told anyone, he would find out where she lived , kil her and hur her daughter. Breakstone left the restroom and plaintiff remained inside with the door locked. Torres , Supervisor , yelled out why it was taking plaintiff so long to clean the bathroom , and plaintiff, who came out of the bathroom , described to Torres the sexual assault that had taken place. Plaintiff avers that Torres then responded " that's how Kevin is. He s harless " and advised plaintiff that she " can t complain about everyhing because they re going to think something is wrong with (plaintiff) because (plaintiff had) come from so many stores " ... and advised her "to let it roll off (her) back" . Plaintiff described the incident to Vasquez , Supervisor , the next day, who responded by laughing and told the plaintiff "these people are crazy " and advised the plaintiff " to stay away from these people [* 4] Thereafter , in early November , 2009 , while plaintiff was behind the counter cleaning, plaintiff was being cursed at by Breakstone in the presence ofTattegrain , Supervisor , who , plaintiff provides , laughed and allowed the verbal barage to continue. On a separate occasion , on November 12 2009 , while plaintiff was working the drive- thr Breakstone approached her with another verbal barrage , cursing her and threatened that he wil kil her and hurt her daughter , and stating that he wants her to give him " good customer service Simonetti , Supervisor , did not take any action to stop the barrage , but rather , supplied Breakstone with Mendrinos ' number so that Breakstone could lodge a complaint against the plaintiff. Thereafter , plaintiff submits that she felt unsafe , retreated to the back office where she was unsure that Breakstone would come back there , called Vasquez and was unable to reach her. Plaintiffthen called Mendrinos who told plaintiff to call Vasquez. As plaintiff couldn t reach Vasquez , she called 911. Plaintiff spoke to the police and asked them to remove Breakstone from the store , however Simonetti , Supervisor , told the police that Breakstone did nothing wrong and that he was permitted to stay the store. The plaintiff testified that on November 17 2009, Mendrinos visited the Great Neck store and plaintiff informed Mendrinos that she felt unsafe because Breakstone was permitted to frequent the store , whereby, Mendrinos responded that she " can t blame the customer for what he did" because plaintiff was " too sexy . Breakstone testified that as a result of the November 12 , 2009 incident , Mendrinos gave Breakstone a $25. 00 gift card , because he was " sorr (Breakstone) had deal with this The plaintiff disputes the corrective action forms issued from September 30 , 2009 , and subsequent forms thereafter. Plaintiff submits she was marked late for days she was not scheduled to work , was not given an opportunity to review some ofthe forms and did not sign such forms , and notified her supervisor when she would be late and received approval. Plaintiff refers to various records demonstrating her punctuality. Plaintiff refers to records reflecting that Torres was late to work seven times from November 2009 through December 20 1 1 , and provides that Torres was not reprimanded for her lateness. APPLICABLE LAW In order to state a cause of action for retaliation under NYSHRL , the " plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she paricipated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there v. Jewish is a causal connection between the protected activity and the adverse action. (Forrest Guildfor the Blind 3 NY3d 295). Causal connection can be established by evidencing any ofthe following: (1) close temporal proximity between the protected activity and the adverse employment action; (2) evidence that other similarly-situated employees were treated differently than the plaintiff; or (3) with direct proof of retaliatory animus. (Nativity St. Louis v. New York City Health Hasp. Corp. 682 F. Supp.2d216). A time span of less than a month was " short enough to permit a jur to infer a causal v. Naco Motor Fuel, Inc. 263 F. 3d 208). But " (w)here a claim of (Lovejoy- Wilson connection retaliation is based solely on timing " and the plaintiff suffered adverse job actions "well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise. (Nativita , supra). Where timing is the only basis for a claim of retaliation , and gradual adverse job ," ," [* 5] actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise. (Slattery v. Swiss Reinsurance Am. Corp. 248 F. 3d 87). After making out a primafacie case , a plaintiff may proceed on a " pretext analysis , in which case the burden shifts to the defendant to proffer a legitimate , non-retaliatory reason for the adverse actions taken against plaintiff. (Ferrante v. American Lung Ass ' 90 NY2d 623). Once accomplished , a plaintiff then requires the burden of producing evidence creating a factual question that the defendant's proffered legitimate reasons for taking the applicable adverse employment (!d. A plaintiff meets this burden by showing both actions were merely a pretext for discrimination. that the defendant' s asserted legitimate reason was false and retaliation was the real reason for the complained about action. (Id.) To prevail on a summar judgment motion in a claim brought under the NYSHRL that proceeds under a pretext analysis , the " defendants must demonstrate either plaintiff s failure to establish every element of intentional discrimination , or , having offered legitimate nondiscriminatory reasons for their challenged actions , the absence of a material issue of fact as to whether their explanations were pretextual." (Forrest, supra). The Court of Appeals has cautioned trial cours that their role in directing a motion for summar judgment under the NYSHRL on a pretext analysis is " issue- finding, rather than issuedetermination , and the courts should not " confuse() plaintiffs ultimate burden with the showing needed to withstand a summar judgment motion (Ferrante , supra (internal citations and quotations omitted). " Generally, a plaintiff is not required to prove his claim to defeat summar judgment to assess credibility" (Id.) (emphasis added). Instead , if after having raised a material issue of fact on each required element of her claim , the defendant is able to ariculate a non- discriminatory reason for the complained of action , to defeat the defendant's summar judgment motion , the plaintiff" must show that there is a material issue of fact as to whether (1) the employer and asserted reason for (the challenged action) is false or unworthy of belief the employee s (protected activity) was the real reason (2) more likely than not (Id.) Alternatively, after making out a prima facie case of retaliation , rather than proceed under a pretext analysis , a plaintiff may proceed under a " mixed motive " theory. A mixed motive situation arises when an employer may have had both a " permissible and impermissible (or bad faith) discriminatory basis " for taking an adverse employment action - - such as termination - - against a v. plaintiff. (Card Sielaff 154 Misc2d 239). Under this sort of analysis the question becomes which was the ' real' reason and how to uncover it. This is precisely the dilemma which mixed motives analysis was designed to address (Id.) Under a mixed motive theory, once a plaintiff makes out a prima facie case the burden shifts to the employer to show that its employment decision would have been the same absent the unlawfl motive In order to prevail under this theory, a defendant " wil have to prove , by a (Id.) preponderance of the evidence , that it would have made the same (decision to terminate a plaintiff s employment) even if it had not taken (the plaintiff s protected activity) into account." (Id. To defeat a motion for summar judgment on such a theory, the cour must find that there are disputed issues of material fact as to whether retaliation was one of the motivating reasons for the defendant's conduct. Wiliams v. New York City Housing Authority, 61 AD3d62). (Id. see also [* 6] DISCUSSION The defendants argue , essentially, that the plaintiffs termination was due to plaintiffs lateness in violatIon of Starbucks ' policy. The defendants refer to Starbucks ' company Parner Guide , citing pertinent parts that refer to attendance and punctuality, which require the plaintiff to be reliable in reporting to work on time and to notify the store manager , or assist the store manager if she could not report to work , or would be late. The defendants refer to the corrective action forms which reflect that plaintiff was marked late and submit that plaintiffs discharge was based on her reported tardiness. The defendants set forth that plaintiff cannot establish a causal connection between her termination. and her alleged complaints to Starbucks ' Supervisors , Store Manager , and District Manager , that Breakstone allegedly harassed her. Likewise , the defendants set forth that plaintiff canot establish a causal connection between Starbucks ' failure to promote the plaintiff, and plaintiff s alleged complaints of sexual harassment. However , several issues of fact exist concerning the causal connection between plaintiffs Supervisors , Store Manager , and District Manager regarding Breakstone s alleged harassment. Such issues include , and are not limited to the defendants ' treatment of Torres , a similarly-situated employee held to identical. time and attendance standard , but who never engaged in protected activity, who was late on more occasions then the plaintiff in a very short time span , and was treated entirely differently than the plaintiff. Additionally, issues exist concerning the temporal proximity to plaintiffs call to 911 concerning her complaints about Breakstone s alleged harassment. Issues of fact exist concerning the causal connection between plaintiff s complaints and produced emails of Star bucks ' management indicating grounds that plaintiffs situation was " getting out of hand" and an inquiry was made if there were " to separate " immediately after plaintiff engaged in a protected activity, as well as the performance evaluation submitted by a Starbucks ' Supervisor , shortly prior to plaintiffs termination , reflecting showing of retaliation prima facie that plaintiff " meets expectations . Plaintiff was held to make a plaintiff s employment shortly after complaining by demonstrating that plaintiff was terminated from v. Sutton (McRedmond about an incident in which all the female employees were forcibly weighed. Place Restaurant and Bar - - - NYS2d - - - , 2012 WL 1836372). While defendants ariculated a nondiscriminar reason for termination , such as ariving late and being rude to customers , plaintiff raised issues of fact as to whether the articulated reasons were pretextual , and therefore plaintiff s retaliation claims proceeded. (Id.) termination and her alleged complaints to Starbucks ' Here , under a retaliatory discharge theory, as well as a mixed motive analysis and a pretext analysis , issues of fact exist concerning the causal connection between plaintiffs complaints and termination , the disparate treatment afforded by the defendants to Torres , and the temporal proximity ofthe termination. Causation " can be established by showing that a retaliatory action was close in time to the protected activity, that other similarly situated employees were treated differently, or with Hospital Corp. v. New York City Health direct proof of retaliatory animus (Nativita Sf. Louis has raised issues concerning whether the defendants ' proffered 682 F. Supp. 2d 216). Plaintiff legitimate reasons for taing the applicable adverse employment actions were merely a pretext for. 90 NY2d 623). As already provided (T)he v. American Lung Ass ' (Ferrante discrimination. question becomes which was the ' real' reason and how to uncover it. This is precisely the dilemma 154 Misc2d 239). which mixed motives analysis was designed to address. (Cardv. Sielaff [* 7] Additionally, plaintiff has raised an issue of fact concerning the causal connection between defendants ' failure to promote plaintiff and her alleged complaints of sexual harassment. Plaintiff claims that defendants ' could not consider the plaintiff for a promotion as a result of plaintiffs alleged visible agitation and composure , in-par parially related to plaintiff s complaints about Breakstone. The classification of an employee as " nonpromotable " can be considered an adverse (Sogg employment action to support a retaliatory failure to promote a claim under NYSHRL. American Airlines, Inc. 193 AD2d 153). As to plaintiff s claim for intentional infliction of emotional distress , an issue of fact exists as to whether the conduct of the defendants is suffcient to rise to the level of extreme conduct. 121 AD2d 772). Plaintiff claims that she was continuously v. Executive of Albany, Inc. (0 'Reily subjected to sexual attcks by Breakstone , a customer who allegedly was continuously permitted access to Starbucks ' back office , in the presence of Starbucks ' Supervisors , without corrective or remedial action. Plaintiff also claims that she suffered emotionally and mentally. The court' s function on this motion for summar judgment is issue finding rather than issue v. Twentieth Century Fox Film Corp. 165 NYS2d 498). Since sumar (Sullvan determination. judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence v. Ceppos 413 NYS2d 141). Thus , when the existence of an (Rotuba Extruders ofa triable issue. v. Goodson (Stone issue offact is even arguable or debatable , summar judgment should be denied. 200 NYS2d 627. The role of the court is to determine ifbonafide issues of fact exists , and not to v. Chittenden 69 NY2d Black Corp. , 203 AD2d 239; v. Saga (Gaither resolve issues of credibility. 665). In reviewing a motion for summary judgment , the cour evaluates the evidence in the most v. Twentieth Century Fox Film Corp. (Sullvan favorable light to the par opposing the motion. supra). Here , issues offact exist which are arguable or debatable , waranting denial ofthis summar judgment motion. CONCLUSION The defendants ' motion for an order , pursuant to CPLR 93212 , plaintiff s second and third cause of action is denied. seeking dismissal of Dated: May 30 2012 cc: Borrelli & Associates , P. L.L.C. Gropper Law Group, PLLC Epstein , Becker & Green , P. ENTERED JUN 04 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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