Court Dismisses LAG Bartender’s Discrimination Claim Following Alleged Customer Harassment

The fact pattern underlying the court’s decision in Maidana v. Boston Culinary Group, Inc., 16-cv-2342, 2018 WL 3614111 (E.D.N.Y. July 27, 2018), are (to say the least) disturbing:

Plaintiff worked as a bartender for Defendant’s Fig’s Café located in LaGuardia Airport, Terminal B (hereinafter “Fig’s Café” or “Defendant”). (See Compl. ¶ 8–10.) An incident occurred on January 2, 2015, when a customer that Plaintiff was serving made racially disparaging comments towards Plaintiff and his coworkers, including something to the effect that, “colored people from all of all [sic] over the world working at Fig’s Café and … none spoke English.” (Id. ¶ 17.) Plaintiff is a dark-skinned Argentinian man with a Spanish accent, and he was “humiliated and embarrassed” by the customer’s comments. (Id. ¶ 6, 19.) Nevertheless, he continued to serve the customer. (Id. ¶ 19.) The customer indicated that he would be leaving a tip in cash, at which point Plaintiff confronted him and asked outright for his tip. (See Compl. ¶ 22–23.) The customer “threw” $2 at Plaintiff and left. (Id. ¶ 23; see also Cusack’s Decl. Ex, C (same). But see Cusack’s Decl. Ex. B, at 1 (customer’s complaint says simply that he “left” the $2).) As Plaintiff conceded at oral argument on June 14, 2018, Plaintiff exited the bar and gave the $2 tip back to the customer. (See Tr. of Status Conference at 2, Maidana v. Boston Culinary Grp., No. 16-CV-2342 (E.D.N.Y. June 14, 2018) ). On January 3, 2015, the customer sent a letter of complaint to Defendant regarding the slow service and the “embarrassing moment” when Plaintiff returned his tip at his departure gate and allegedly berated him. (See Compl. ¶ 26; see also Dkt. No. 15, Cusack’s Decl. Ex. B., at 1.)1

Defendant suspended Plaintiff pending investigation, and invited him to submit a written statement explaining what had occurred from his perspective. (See Compl. ¶ 27–28.) Plaintiff told his supervisor, Daniel Mora, about the customer’s derogatory comments. (See id. ¶ 28–29.) On January 9, 2015, Plaintiff submitted a written statement to his General Manager. (See id. ¶ 30.) On January 30, 2015, Defendant sent Plaintiff a letter informing him that they had concluded their investigation and had decided to terminate Plaintiff’s employment. (See id. ¶ 31.) Defendant cited abandonment of post as the reason for the decision.

Plaintiff thereafter sued, alleging that defendant discriminated against him on the basis of his race, color, and national origin, in violation of, inter alia, Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.

Plaintiff, however, loses, and his case is dismissed. Why? The court explains:

Plaintiff fails to meet the standard of demonstrating “minimal support for the proposition that the employer was motivated by discriminatory intent.” Id. A court may infer discrimination “from circumstances, including, but not limited to, the employer’s invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.” Famighette v. Rose, 2018 WL 2048371, at *2 (E.D.N.Y. May 2, 2018) (quoting Littleiohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) ). As pled, none of Defendant’s actions directly indicate racial bias. It was a customer, not Defendant, who allegedly made invidious comments regarding Plaintiff’s race and national origin. The chronological order of the customer’s complaint and the termination is insufficient to establish a claim because, as Plaintiff concedes, Defendant did not know about the customer’s allegedly discriminatory remarks before it began the investigation. (See Compl. ¶ 27–28). Furthermore, Plaintiff fails to provide examples of other investigations by the Defendant into customer complaints. Famighette, 2018 WL 2048371 at *2 (finding “the more favorable treatment of employees not in the protected group” may allow a court to infer discrimination). Without more, the Court cannot conclude that Defendant’s termination of Plaintiff was directly motivated by discriminatory intent.

Under some circumstances a court may impute the actions and intent of an employee, or even a non-employee, to their superior, (See Pl.’s Mem. of Law in Opp. to Def.’s Mot. to Dismiss.) Defendant, once it became aware of the customer’s comments, was required to provide a reasonable avenue for complaint and to take appropriate remedial action. See Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013). In this case, it did so. Defendant provided Plaintiff with an avenue for complaint, in the form of an opportunity to speak with his supervisor regarding the incident and to submit a written statement.

The court rejected plaintiff’s argument that defendant “condoned and adopted the customer’s statements when it relied upon the customer’s letter of complaint to terminate Plaintiff” and distinguished case law (including those involving sexual harassment) in which defendants “were actively dismissive of—and to some degree even facilitated—the sexual harassment of the plaintiffs by their employees,” observing that those defendants’ “actions far exceed the alleged actions of Defendant [here].”

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