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Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`---------------------------------------------------------------X
`TINA MICHELLE BRAUNSTEIN,
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`Plaintiff,
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`-against-
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`DAVID BARBER and BLUE HILL AT STONE
`BARNS, LLC,
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`Defendants.
`---------------------------------------------------------------X
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` REPORT AND
` RECOMMENDATION
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` 06 Civ. 5978 (CS) (GAY)
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`TO THE HONORABLE CATHY SEIBEL, United States District Judge:
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`Tina Michelle Braunstein brings this action under Title VII of the Civil Rights Act
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`of 1964 (42 U.S.C. §§ 2000e to 2000e-17) and the New York Human Rights Law (N.Y.
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`Exec. Law §§ 290-300). Plaintiff Braunstein asserts these claims against defendants
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`David Barber and Blue Hill at Stone Barns, LLC for allegedly harassing and
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`discriminating against her because she is a woman, and retaliating against her when
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`she complained internally of said acts.1 Presently before this Court are defendants’
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`motion to dismiss plaintiff’s claims pursuant to Rule 56 of the Federal Rules of Civil
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`Procedure (“FRCP”), on the grounds that plaintiff failed to state claims for which relief
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`can be granted. For the reasons that follow, I respectfully recommend that defendants’
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`motions be DENIED.
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`1 To the extent plaintiff alleges that defendants retaliated against her in
`subsequent employment after she filed a complaint with the Equal Employment
`Opportunity Commission (“EEOC”), plaintiff filed a separate lawsuit to address this claim
`on March 22, 2007. Braunstein v. Barber, No. 07 Civ. 3391 (S.D.N.Y.). On November
`7, 2007, District Judge Charles L. Brieant ordered said case dismissed with prejudice by
`stipulation and agreement of the parties. Id., Docket No. 15.
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 2 of 22
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`I. BACKGROUND
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`The following facts are gathered from the parties’ statements pursuant to Local
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`Civil Rule 56.1 of the United States District Courts for the Southern and Eastern
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`Districts of New York, from the pleadings and from affidavits, affirmations and exhibits
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`submitted by the parties in support of their contentions. Any disputes of material fact
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`are noted.
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`Plaintiff is female bartender who, at the time she commenced the instant action,
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`resided in the Bronx, New York. Blue Hill at Stone Barns, LLC (“Blue Hill”) is a “three-
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`star” restaurant located in Pocantico Hills, Westchester County, New York. David
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`Barber is an owner of Blue Hill. On January 24, 2004, plaintiff interviewed for a
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`bartending position to work at the “front of the house” bar at Blue Hill. Philippe Gouze,
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`Blue Hill’s general manager, conducted plaintiff’s interview. Gouze hired plaintiff and
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`she began training on March 29, 2004. On this day, plaintiff received Blue Hill’s
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`employee handbook and server’s manual. The employee handbook included
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`information regarding Blue Hill’s discrimination policies and procedures. The server’s
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`manual, among other things, required that servers convey a hospitable attitude towards
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`customers.
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`Plaintiff’s duties included requiring her to be knowledgeable about the wines Blue
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`Hill served. As part of this duty, plaintiff took wine quizzes administered by Blue Hill’s
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`sommelier, Derrick Todd (“Todd”). Additionally, plaintiff served drinks and food to
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`customers at the bar and lounge in the front of the restaurant. Defendants contend that
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`plaintiff was also required to maintain and clean these areas, re-stock alcohol, and
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`handle all cash transactions. Plaintiff asserts that when she was hired, Gouze
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 3 of 22
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`represented that she would have assistance from a barback who would assist her in
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`stocking alcohol, glassware, and ice; and clear away dirty dishes. Plaintiff also asserts
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`that the restaurant barista was to provide assistance at both the front and service bars.
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`Contrary to plaintiff’s understanding, she contends that did not receive help from
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`either a barback or the restaurant barista. Defendants assert that plaintiff did seek and
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`sometimes received help from other managers and co-workers. Nonetheless, plaintiff
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`alleges that she suggested to Gouze that service could be improved in her work area if
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`she had assistance clearing dishes and Blue Hill hired a cocktail waitress for the lounge.
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`Plaintiff alleges that Gouze reacted hostilely to her suggestions and said to her, “You
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`are a terrible bartender. I can put one man up here who could bartend for the full
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`establishment.” Defendants’ Ex. B, Braunstein Tr. 237:18-21.
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`The relationship between Gouze and plaintiff deteriorated. Defendants contend
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`that plaintiff was unwilling or unable to discharge her job duties. Defendants allege that
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`plaintiff often disappeared from the bar. Defendants also allege that Blue Hill received
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`complaints from customers regarding plaintiff’s rudeness. On the contrary, plaintiff
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`contends that customers often praised her service and she was only aware of a single
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`negative comment from a customer prior to her termination. Furthermore, plaintiff
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`alleges that Gouze’s poor treatment of her began because she received public attention
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`for her service. Specifically, notable New York Times critic Frank Bruni mentioned
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`plaintiff’s name three times in his July 28, 2004 review of Blue Hill, Elizabeth Johnson
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`commented on plaintiff’s rhubarb cosmopolitan in a May 4, 2004 Journal News article of
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`Blue Hill, and Martha Stewart called on plaintiff in late August/early September to
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`provide a mojito recipe and then personally thanked her for said recipe. Plaintiff alleges
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 4 of 22
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`that Gouze regularly called her a “diva” and “bitch” as early as April or May of 2004, but
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`said that such occurrences became more frequent after the Bruni review.
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`Plaintiff alleges that in early October, she spoke with David Barber about how
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`Gouze treated her. She alleges that she told Barber that Gouze harassed her. Plaintiff
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`asserts that she also said that Gouze called her a “bitch” and “diva.” She contends
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`further that she told Barber that Gouze said to her that he could put a man at the front
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`bar and lounge to do a better job. Plaintiff alleges that she explained to Barber that the
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`situation made her “really uncomfortable.” Plaintiff alleges that Barber promised to take
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`care of the situation. Plaintiff also alleges that Gouze saw her speaking with Barber.
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`Plaintiff further alleges that, around the same time, she spoke with Irene Hamburger,
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`Vice President of Operations at Blue Hill, about the alleged harassment.
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`On October 13, 2004, Gouze and plaintiff had an altercation surrounding
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`plaintiff’s refusal to take a wine quiz from Todd. Plaintiff alleges that she requested that
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`she take the quiz at another time in order to allow her time to prepare the bar and
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`lounge prior to the restaurant opening for the evening. Allegedly, Todd denied plaintiff’s
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`request and reported to Gouze. Plaintiff alleges that Gouze asked her to join him in the
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`restaurant’s private dining room whereupon he told her that she had no choice about
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`when to take the wine quiz. Gouze subsequently sent plaintiff home, allegedly telling
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`her to “get the fuck out” of the restaurant and calling her a “real bitch.” Plaintiff contends
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`that Gouze did not give her an opportunity to explain her position and denied her pay for
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`the time she had already worked.
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`The next day, October 14, 2004, plaintiff arrived early for her shift to attend a
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`wine tasting. Plaintiff asserts that she spoke with Barber about being sent home the
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 5 of 22
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`night before. She alleges that she told Barber that Gouze called her a “bitch” and
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`“diva.” She also alleges that Barber instructed her to “work it out” with Gouze. Plaintiff
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`contends that she did speak to Gouze later that day. She alleges that Gouze said,
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`“Tina, I don’t like you. You are a real diva. You are a real egoist.” Subsequently, on
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`October 15, 2004, plaintiff called Barber. She contends that she reaffirmed to him that
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`she was concerned Gouze’s harassment would continue. Plaintiff asserts that Barber
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`again reassured her that he would take care of the situation.
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`On November 14, 2004, Gouze terminated plaintiff. That evening plaintiff
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`covered the service and front bar because Chris, the service bartender, did not show up
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`to work. Allegedly, a couple in the front lounge became irate because of slow service.
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`Plaintiff alleges that she sought Gouze’s assistance, but he ignored her. Plaintiff
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`contends that she tried to take the couple’s order, but they instead chose to leave Blue
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`Hill. Plaintiff alleges that another customer complimented plaintiff’s handling of the
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`situation to another Blue Hill employee, Claire. Plaintiff also alleges that she advised
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`Gouze’s assistant, John List, of the situation and he told her not to worry about it.
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`Nonetheless, Gouze approached plaintiff at around 9:00 p.m. and brought her to the
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`coat check room. Plaintiff alleges that Gouze said, “That’s it. I’m letting you go.”
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`Plaintiff contends that although she tried to speak with Gouze, he was non-responsive.
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`She asserts that Gouze again called her a “bitch” and said she was “bitchy to
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`customers.”
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`Following plaintiff’s termination, Blue Hill hired a man to bartend at the front bar
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`and lounge. Blue Hill also hired a cocktail waitress to serve customers in the lounge.
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 6 of 22
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`Plaintiff first filed a complaint with the EEOC on September 8, 2005. The EEOC
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`dismissed plaintiff’s complaint and provided her with her “Right to Sue” letter, which
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`plaintiff received on April 8, 2006. Plaintiff commenced this action on July 5, 2006 when
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`she filed a complaint with the pro se office of the clerk of the court.
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`II. SUMMARY JUDGMENT STANDARD
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`Summary judgment is appropriate “if the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, show that
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`there is no genuine issue as to any material fact and that the moving party is entitled to
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`a judgment as a matter of law.” FRCP 56(c). When deciding a summary judgment
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`motion, the Court must resolve all ambiguities and draw all factual inferences in favor of
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`the nonmoving party. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
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`The question is whether, in light of the evidence, a rational jury could find in favor of the
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`nonmoving party. See Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
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`1224 (2d Cir. 1994). Where a plaintiff fails to establish an essential element of her
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`claim, “there can be no genuine issue as to any material fact, since a complete failure of
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`proof concerning an essential element of the nonmoving party’s case necessarily
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`renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
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`(1986) (internal quotations and citations omitted).
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`When deciding a summary judgment motion, the court must resolve all
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`ambiguities and draw all factual inferences in favor of the party opposing the motion.
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`See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). The question is
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`whether, in light of the evidence, a rational jury could find in favor of the nonmoving
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`party. See Gallo, 22 F.3d at 1224. Summary judgment must be denied, therefore, if the
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 7 of 22
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`court finds “there are any genuine factual issues that properly can be resolved only by a
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`finder of fact because they may reasonably be resolved in favor of either party.”
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`Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
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`Caution should be exercised in addressing summary judgment motions in
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`discrimination cases where intent and state of mind are at issue because “careful
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`scrutiny of the factual allegations may reveal circumstantial evidence to support the
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`required inference of discrimination.” See Graham v. Long Island R.R., 230 F.3d 34, 38
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`(2d Cir. 2000) (citations omitted). Nonetheless, the Second Circuit has expressly
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`“remind[ed the] district courts that the impression that summary judgment is unavailable
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`to defendants in discrimination cases is unsupportable.” See Weinstock v. Columbia
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`Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quotation and citation omitted). On the one hand,
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`mere conclusory allegations of discrimination will not defeat a summary judgment
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`motion; a plaintiff in a discrimination case must proffer “concrete particulars” to
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`substantiate his claim. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). On the
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`other hand, courts must be aware of the fact that “discrimination will seldom manifest
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`itself overtly.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999). Courts
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`must therefore “carefully distinguish between evidence that allows for a reasonable
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`inference of discrimination and evidence that gives rise to mere speculation and
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`conjecture.” Id. Thus, the ultimate question in deciding a summary judgment motion in
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`a discrimination case “is whether the evidence can reasonably and logically give rise to
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`an inference of discrimination under all of the circumstances.” Id.
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`III. STATUTE OF LIMITATIONS FOR TITLE VII CLAIMS
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`In order to pursue a timely claim pursuant to Title VII, a plaintiff must file her
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 8 of 22
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`complaint within ninety (90) days of receiving a “Right to Sue” letter from the EEOC. 42
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`U.S.C. § 2000e-5(f)(1). However, “where in forma pauperis relief is granted, the action
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`should be treated as timely, provided the complaint was received by the clerk’s office
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`prior to the expiration of the limitations period.” Toliver v. Sullivan County, 841 F.2d 41,
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`42 (2d Cir. 1988). In the instant matter, plaintiff received from the EEOC her “Right to
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`Sue” letter on April 8, 2006. Plaintiff filed her complaint and application to proceed in
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`forma pauperis with the pro se office of the clerk of the court on July 5, 2006, at the
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`latest, when said office stamped her papers as “received.” Defendants admit that this
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`date falls within plaintiff’s ninety-day limitations period. The undersigned granted
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`plaintiff’s application for the appointment of counsel on November 9, 2006.
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`Thus, the fact that plaintiff’s complaint was filed with the Court on August 31,
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`2006, about one month beyond the ninety-day period, is not controlling. She timely filed
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`the complaint with the pro se office along with her application to proceed in forma
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`pauperis. As such, it is respectfully recommended that defendants’ motion for summary
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`judgment with respect to plaintiff being procedurally time-barred should be DENIED.
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`IV. SEXUAL HARASSMENT CLAIM
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`Plaintiff claims that she was subjected to hostile environment sexual harassment
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`on the basis of Gouze’s actions and defendants’ failure to correct the situation.
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`Specifically, plaintiff alleges that Gouze called her a “bitch” and “diva,” and although
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`she allegedly complained to defendant Barber, he failed to correct the situation. Plaintiff
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`also alleges that Gouze called her other names, such as “egoist,” which on their face
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`appear gender neutral, but under the totality of the circumstances, evidence the hostile
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`work environment. Plaintiff alleges that Gouze called her these derogatory terms until
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 9 of 22
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`he terminated her on November 14, 2004. Defendants contend that Gouze’s name-
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`calling occurred in isolated incidents which would not give rise to a hostile environment
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`sexual harassment claim. Defendants further contend that Gouze’s use of said words
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`described her attitude and was gender-neutral. Defendants also assert that plaintiff
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`failed to submit evidence establishing that the workplace was objectively hostile. Finally
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`defendants assert that plaintiff’s claim is barred because she failed to utilize the
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`complaint procedure detailed in Blue Hill’s anti-harassment policy.
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`Individuals may not be held liable for violations of Title VII. Tomka v. Seiler
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`Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Accordingly, here, plaintiff may only bring a
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`sexual harassment claim against defendant Blue Hill. In order to succeed on her claim,
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`plaintiff must demonstrate “(1) that the workplace was permeated with discriminatory
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`intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her
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`work environment, and (2) that a specific basis exists for imputing the conduct that
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`created the hostile environment to the employer.” Petrosino v. Bell Atlantic, 385 F.3d
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`210, 221 (2d Cir. 2004) (internal quotation omitted) (alteration in original). As to the first
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`element, plaintiff must show that the workplace was both objectively and subjectively
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`hostile. See id. Further, “[s]ingle or isolated instances of misconduct do not rise to the
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`level of pervasiveness unless, taken separately or together, they are so extraordinarily
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`severe or sufficiently continuous and concerted as to have altered the working
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`environment.” Durant v. A.C.S. State and Local Solutions, Inc., 460 F. Supp. 2d 492,
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`497 (S.D.N.Y. 2006).
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`In determining whether a plaintiff has established a hostile work environment
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`claim, courts will weigh the totality of the circumstances and consider various factors
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 10 of 22
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`“including the frequency of the discriminatory conduct; its severity; whether it is
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`physically threatening or humiliating, or a mere offensive utterance; and whether it
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`unreasonably interferes with an employee’s work performance.” See Dawson v. County
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`of Westchester, 373 F.3d 265, 272-73 (2d Cir. 2004) (internal quotation and citation
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`omitted). In sum, “[t[he question of whether a work environment is sufficiently hostile to
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`violate Title VII is one of fact . . . [and] [s]ummary judgment is appropriate only if it can
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`be concluded as a matter of law that no rational juror could view [the defendant’s
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`conduct] as . . . an intolerable alteration of [the plaintiff’s] working conditions.” Holtz v.
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`Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) (internal quotation and citations
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`omitted).
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`In the present case, plaintiff alleges that Gouze created a hostile work
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`environment in violation of Title VII’s sexual harassment prohibition when he repeatedly
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`called her a “bitch” and “diva,” and said that one man could do her job better. Plaintiff
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`alleges that Gouze began saying that one man could do her job in May of 2004.
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`Plaintiff articulates two specific occasions when Gouze called her said names, when he:
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`(1) sent her home for allegedly refusing to take a wine quiz on October 13, 2004, and
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`(2) terminated her on November 14, 2004. Moreover, plaintiff contends that Gouze
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`called her a “bitch” consistently since the Bruni review of July 28, 2004, and “dozens” of
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`times in September and through October 13, 2004. Plaintiff’s Ex. 1, Braunstein Tr.
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`299:18-300:21. Gouze admits to calling Braunstein a “bitch” and “diva” on October 13,
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`2004 and November 14, 2004. Plaintiff’s Ex. 2, Gouze Tr. 159:8-160:25. Gouze also
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`admits that using the term “bitch” was inappropriate. Id. at 160:9-15. He further
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`testified that it was not a word he used against a man. Id. 160:19-21. Plaintiff allegedly
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 11 of 22
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`complained to Barber about Gouze’s treatment of her at least three times. See infra §
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`VI.
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`Using the term “bitch” can be construed as sex-based harassment. Macri v.
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`Newburgh Enlarged City Sch. Dist., No. 01 Civ. 1670, 2004 WL 1277990, at *9
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`(S.D.N.Y. June 8, 2004). Furthermore, “[w]hen a female plaintiff has been the target of
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`sex-based insults and, unlike her male coworkers, is later subjected to additional”
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`gender-neutral abuse, “it may be reasonable to infer that any further mistreatment is
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`also sex-based.” Id. at *10. However, in light of plaintiff’s and Gouze’s testimony, a
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`question of fact remains regarding whether Gouze’s conduct was so frequent, severe,
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`or pervasive to establish that plaintiff suffered an “‘an objectively hostile or abusive work
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`environment.’” Payami v. City of New York, No. 03 Civ. 2785, 2007 WL 945529, at *5
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`(S.D.N.Y. March 28, 2007) (quoting Patterson v. County of Oneida, 375 F.3d 206, 227
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`(2d Cir. 2004). Furthermore, “reasonable jurors could disagree as to whether alleged
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`incidents of . . . harassment would have adversely altered [plaintiff’s] working
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`conditions.” Id. at *6. As such, a question of fact exists as to whether Gouze’s acts
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`amounted to discriminatory intimidation. Thererfore, the Court cannot conclude as a
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`matter of law that Gouze’s name-calling was nothing more than offensive utterances.
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`See Holtz, 258 F.3d at 75.
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`Finally, Gouze’s conduct can be imputed to Blue Hill. See Faragher v. City of
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`Boca Raton, 524 U.S. 775, 807 (1998) (where a supervisor with immediate authority
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`over plaintiff created the actionable hostile environment, the employer is subject to
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`vicarious liability). Nonetheless, defendants appear to assert a Faragher affirmative
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`defense, alleging that plaintiff did not follow Blue Hill’s harassment policy. However,
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 12 of 22
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`said defense is not available. See id. at 807-08. Defendants may not assert the
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`affirmative defense “when the supervisor’s harassment culminates in a tangible
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`employment action, such as discharge . . . .” Id. at 808. Here, no one disputes that
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`Gouze terminated plaintiff. Furthermore, Gouze admits that he called plaintiff a “bitch”
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`and “diva” when he fired her. Plaintiff’s Ex. 2, Gouze Tr. 160:22-25. Therefore the
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`Faragher affirmative defense is not available.
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`For the above reasons, it is respectfully recommended that with respect to this
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`claim, defendants’ motion should be DENIED.
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`V. GENDER DISCRIMINATION CLAIM
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`Plaintiff claims that Gouze’s “discriminatory animosity” towards her as a woman
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`was the cause for her termination at Blue Hill, in violation of Title VII. Complaint at 9.
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`She claims that defendants’ claim of her poor work performance is simply a pretext for
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`their discrimination. Defendants contend that they terminated plaintiff because she did
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`not perform her work duties satisfactorily and the circumstances surrounding her
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`termination do not give rise to an inference of discrimination. Defendants also argue
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`that because Gouze both hired and fired plaintiff, plaintiff cannot establish any
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`discriminatory animus.
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`Title VII forbids an employer from discriminating against an employee or
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`applicant for employment “with respect to his compensation, terms, conditions, or
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`privileges of employment, because of such individual’s race, color, religion, sex, or
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`national origin.” 42 U.S.C. § 2000e-2(a). Individuals “with supervisory control over a
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`plaintiff may not be held personally liable.” Tomka, 66 F.3d at 1313. “Title VII
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`‘proscribes not only overt discrimination but also practices that are fair in form, but
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`discriminatory in operation.’” Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 382 (2d
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`Cir. 2006) (citing Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)).
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`In the absence of direct evidence of discrimination, courts analyze claims brought
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`under Title VII pursuant to the three-step burden shifting analysis set forth in McDonnell
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`Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Schnabel v. Abramson, 232
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`F.3d 83, 87 (2d Cir. 2000). Under the McDonnell-Douglas framework, plaintiff must first
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`establish a prima facie case of discrimination by demonstrating that: (1) he belongs to a
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`protected class; (2) he suffered an adverse employment action; (3) he was performing
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`his duties satisfactorily; and (4) the circumstances surrounding the employment action
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`give rise to an inference of discrimination. See Dawson v. Bumble & Bumble, 398 F.3d
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`211, 216 (2d Cir. 2005).
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`If the plaintiff establishes her prima facie case, a presumption that the employer
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`unlawfully discriminated against the employee is raised and the burden of production
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`then shifts to the employer “to articulate some legitimate nondiscriminatory reason” for
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`its actions. See Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en
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`banc). “Should the defendant carry this burden, the plaintiff must then demonstrate that
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`the legitimate reasons offered by the defendant were not its true reasons, but were a
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`pretext for discrimination.” Id. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08
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`(1993). In determining whether the plaintiff has met this burden, the court must take a
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`“case-by-case” approach that weighs “‘the strength of the plaintiff’s prima facie case, the
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`probative value of the proof that the employer’s explanation is false, and any other
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`evidence that supports [or undermines] the employer’s case.’” James v. New York
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`Racing Ass’n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves v. Sanderson
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`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 14 of 22
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`Plumbing Prods., 530 U.S. 133, 148-49 (2000)). In other words, although the burden of
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`production shifts, “the ultimate burden rests with the plaintiff to offer evidence sufficient
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`to support a reasonable inference that prohibited [age, gender, race or national origin]
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`discrimination occurred.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)
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`(quotation and citation omitted).
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`In the present case, no party disputes that plaintiff is in a protected class or that
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`she suffered an adverse employment action. Rather, defendants claim that plaintiff did
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`not perform her job duties at a level befitting a three-star restaurant. Specifically,
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`defendants contend that plaintiff was rude to customers. In support of said contention,
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`defendants submit two hand-written comments from customers. Defendants’ Ex. G.
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`Dona Bianco allegedly submitted a comment card on June 5, 2004, stating,
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`“bartender—rude.” Id. Another customer, Robert, allegedly sent a letter dated
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`September 9, 2004, stating, “Tina as a bartender-server was not hospitable, she was
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`rude and forgot some requests.” Id. Defendants assert that they terminated plaintiff
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`following a dispute with customers, “for unprofessional and inappropriate behavior
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`towards customers.” Memo. of Law in Support of Defs. Mot. for Sum. Judgment §
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`Contentions (B) [hereinafter “Defendants’ Memo”]. Thus, defendants contend that
`
`plaintiff’s termination cannot give rise to an inference of discrimination.
`
`Plaintiff, however, asserts that defendants’ claim of her unsatisfactory work is
`
`pretextual because it is untrue. She contends that she received numerous accolades
`
`for her service. See, e.g., Plaintiff’s Ex. 5 (Frank Bruni’s New York Times review calls
`
`plaintiff “one of many extremely affable servers” at Blue Hill.); Plaintiff’s Ex. 6 (Elizabeth
`
`Johnson states, “Tina Braunstein shakes a fine rhubarb cosmopolitan” in a Journal
`
`14
`
`

`
`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 15 of 22
`
`News review of Blue Hill.). Defendants admit that plaintiff received praise for her
`
`bartending and service. See Defendants’ Ex. C, Barber Tr. 53:3-10 (Blue Hill received
`
`more positive written comments for Tina’s service than negative ones); id. Barber Tr.
`
`57:11-58:19 (Customers complimented plaintiff directly to Barber, but he did not receive
`
`any direct negative comments about her.). Plaintiff further contends that the only time
`
`she knew a customer complained negatively about her was when Gouze showed her a
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`customer’s letter which was written on blue stationary. Defendants’ Ex. B, Braunstein
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`Tr. 258:17-260:18. Lastly, plaintiff states that when Gouze terminated her, allegedly
`
`because of how she dealt with an irate couple, he would not even discuss the situation
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`with her. Defendants’ Ex. B, Braunstein Tr. 363:11-368:10.
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`In contrast to plaintiff’s allegations, Gouze stated that whenever a server
`
`received a negative comment, he would address the situation with the server.
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`Defendants’ Ex. D, Gouze Tr. 105:25-106:9. He said that he would “always try to listen
`
`to both sides of the story and try to understand the situation.” Id., Gouze Tr. 106:13-15.
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`Gouze further stated that if a server received two negative comments, he would put her
`
`on notice that she was in danger of being terminated. Id., Gouze Tr. 109:11-22.
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`However, Gouze does not remember if he gave plaintiff such notice. Id., Gouze Tr.
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`109:23-110:5.
`
`Given the above, plaintiff has established enough evidence to allow a reasonable
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`juror to find that she performed her job duties satisfactorily. Defendants’ contention that
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`she was consistently rude to customers is weak; they admit they only had two written
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`negative comments, but had several more positive comments in connection with
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`plaintiff’s service. Additionally, plaintiff raises a question of fact regarding these
`
`15
`
`

`
`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 16 of 22
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`negative comments as she contends she was only made aware of a single one;
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`contrary to Gouze’s admitted practice of discussing every negative comment with the
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`alleged offending server. Also, that Gouze called plaintiff a “bitch” and “diva” when he
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`terminated her, Defendants’ Ex. D, Gouze Tr. 160:22-161:16, as well as would say to
`
`her that one man could do her job better2, Defendants’ Ex. B, Braunstein Ex. 237:18-21,
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`gives rise to the inference that Gouze terminated her for discriminatory reasons.
`
`Furthermore, because plaintiff’s evidence supporting her satisfactory job performance
`
`undermines defendants’ alleged legitimate reason for terminating her, plaintiff has
`
`submitted enough evidence to establish that said legitimate reason was pretextual.
`
`Lastly, defendants incorrectly contend that because Gouze both hired and fired
`
`plaintiff, plaintiff cannot prove discriminatory animus. Defendants here invoke the
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`“‘same actor’ inference, the main thrust of which is that it is difficult to infer that the
`
`person who hires an employee in a protected class would ‘suddenly develop an
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`aversion to members of that class.’” Copeland v. Rosen, 38 F.Supp.2d 298, 305
`
`(S.D.N.Y. 1999) (citing Ruane v. Continental Cas. Co., No. 96 Civ. 7153, 1998 WL
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`292103, at *8 (S.D.N.Y. June 3, 1998)). However, “[t]he ‘same actor’ inference is not a
`
`necessary inference, it is only a plausible one.” Id. (citations omitted). Rather, courts
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`must still engage in “a fact-intensive inquiry into the particular circumstances of the case
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`at hand.” Id. (citations omitted). As such, considering the facts as discussed above, the
`
`plaintiff has submitted sufficient evidence to support her gender discrimination claim.
`
`See id. at 306.
`
`2 The Court notes that Gouze contends he said one “person” could do the job.
`Defendants’ Ex. D, Gouze Tr. 162:4-9. At this stage, his assertion merely raises a
`question of fact for the jury to determine.
`
`16
`
`

`
`Case 7:06-cv-05978-CS Document 33 Filed 03/30/09 Page 17 of 22
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`Thus, for the above reasons, it is respectfully recommended that with respect to
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`plaintiff’s gender discrimination claim, defendants’ motions should be DENIED.
`
`VI. RETALIATION CLAIM
`
`Plaintiff alleges that defendants retaliated against her in violation of Title VII when
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`she complained to Barber that Gouze was harassing her by calling her names and
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`saying that one man could do her job better. Defendants argue that plaintiff simply told
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`Barber she was unhappy with how Gouze ran the restaurant, which does not rise to
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`protected activity under Title VII. Defendants also contend that Gouze fired plaintiff
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`because of her poor job performance and disrespect to customers, not because of any
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`retaliatory intent.
`
`Title VII provides that “[i]t shall be an unlawful employment practice for an
`
`employer to discriminate against any of his employees . . . because he has opposed
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`any practice made an unlawful employment practice by this subchapter, or because he
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`has made a charge, testified, assisted, or participated in any manner in an investigation,
`
`proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
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`In order to establish a prima facie case of retaliation, plaintiff must show that (1) she
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`was engaged in a protected activity, (2) her employer was aware of that activity, (3) she
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`suffered an adv

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