O'Diah v. Oasis

• Decision Date: 22 July 2013
• Docket Number: No. 11 Civ. 309(FM).,11 Civ. 309(FM).
• Citation: 954 F.Supp.2d 261
• Parties: Ese A. O'DIAH, Plaintiff, v. YOGO OASIS, Roast Bean Coffee, Roast Town Coffee, and Dong G. Shin, Defendants.
• Court: U.S. District Court — Southern District of New York

954 F.Supp.2d 261

Ese A. O'DIAH, Plaintiff,

v.YOGO OASIS, Roast Bean Coffee, Roast Town Coffee, and Dong G. Shin, Defendants.

No. 11 Civ. 309(FM).

United States District Court,

S.D. New York.

July 22, 2013.

Ese A. O'Diah, Kew Gardens, NY, pro se.

Laura Melim Midwood, RHA & Kim LLP, Bayside, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

FRANK MAAS, United States Magistrate Judge.

Pro se plaintiff Ese O'Diah (“O'Diah”) brings this employment discrimination suit against his former employer, Yogo Oasis, which operates a café under the name Roastown Coffee (“Roastown”), and Roastown's owner, Doug G. Shin (“Shin”). In his complaint, O'Diah alleges that he was wrongfully terminated on the basis of his race, color, and national origin. He seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. (“NYSHRL”).¹ O'Diah also seeks damages for defamation of character.

Roastown has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 81). For the reasons explained below, the motion is denied.

I. BackgroundA. Local Rule 56.1

Local Civil Rule 56.1(a) requires a party seeking summary judgment to submit “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” The nonmoving party then is required to provide a counterstatement with “correspondingly numbered paragraph[s]” setting forth a response to each of the paragraphs in the moving party's statement. SeeLocal Civil Rule 56.1(b).

Although Roastown served O'Diah with the required notice of the Local Civil Rule 56.1 procedures, (ECF No. 84), O'Diah did not submit any counterstatement. Ordinarily, a failure to respond to facts set forth in the movant's Rule 56.1 statement results in those facts being deemed admitted. Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). As the Second Circuit has emphasized, however, pro se litigants are entitled to “special solicitude ... when confronted with motions for summary judgment.” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988) (citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988)). Thus, notwithstanding a pro se plaintiff's failure to comply strictly with the Local Rules, the Court “retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.” Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y.2009); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (court has “broad discretion to determine whether to overlook a party's failure to comply with the local rules”). Considering O'Diah's pro se status, I therefore will consider his evidence to the extent that it is supported by the record.

B. Relevant Facts²

Shin, a first-generation immigrant from Korea, opened Roastown in June 2009. (Midwood Decl., Ex. A ¶¶ 4, 7). The café staff consisted of approximately ten to twelve employees who apparently hailed from various foreign countries, including Nigeria, Columbia, Guatemala, South Korea, Morocco, the Dominican Republic, Indonesia, Egypt, the United States, and Puerto Rico. (Defs.' Stmt. ¶ ¶ 4–5).

O'Diah is a black male from Nigeria. (ECF No. 2 (“Complaint” or “Compl.”), Ex. A at 1).³ In June or July of 2009, Shin hired O'Diah to work as a barista at Roastown. ( Id.; Defs.' Stmt. ¶ 6). Shin initially was pleased with O'Diah's work and promoted him to manager. ( Id.¶ 7).

According to John Stauble (“Stauble”), one of O'Diah's coworkers, Shin was “rude and cruel” to Roastown employees and made a number of discriminatory remarks about O'Diah's race throughout his employment. (O'Diah Decl., Ex. 9 (Aff. of John Stauble, sworn to on May 19, 2011 (“Stauble Aff.”)), at 1). On one occasion, Shin instructed O'Diah to tell a group of black men to leave the vicinity of the Roastown storefront, stating “you black guy, tell those black guys [to] go away.” ( Id.). Although O'Diah refused to do so, Shin insisted, stating “black guys [are] bad for business, you black guy, make them leave.” ( Id.). After O'Diah again refused, Shin became angry and poked O'Diah in the chest, stating “damn black guys no good.” ( Id.).

During the latter half of his employment at Roastown, O'Diah increasingly found himself in the middle of arguments between Shin and his wife (“Mrs. Shin”). (Compl., Ex. A at 1). At times, Mrs. Shin would ask O'Diah to perform tasks that conflicted with Shin's orders. ( Id.). She became “very upset” with O'Diah when he informed her that he had been hired by Shin and would follow Shin's instructions over hers. ( Id.). According to Juan Lugo (“Lugo”), another one of O'Diah's coworkers, O'Diah would get upset when Mrs. Shin was at the store because “she was his new boss ... and [Lugo] could tell that O'Diah didn't like taking orders from women” (Defs.' Stmt. ¶ 28). One day, O'Diah allegedly told Lugo that he was “sassing” Mrs. Shin “so that he would get fired.” ( Id.¶ 29).

In May 2010, O'Diah informed Shin that he planned to take a three-week vacation in Europe commencing on July 15. ( Id.).⁴ When Shin responded by asking O'Diah where he was from, O'Diah stated that he was from Nigeria. ( Id.). Shin laughed, but gave O'Diah permission to take the vacation. ( Id.). Although Shin was under the impression that O'Diah understood that his vacation would be unpaid, O'Diah left a note on Shin's desk the day before he departed, stating that he wished to receive vacation pay. ( Id.; Midwood Decl., Ex. A ¶¶ 13–14).

O'Diah returned from vacation on August 8, 2010. (O'Diah Decl., Ex. 6). Around that time, Roastown alleges that Shin and his assistant, Richard Kim (“Kim”), began to notice that the cash registers were “coming up short.” (Defs.' Stmt. ¶¶ 12–13). After reviewing video recordings from Roastown's surveillance cameras, Shin and Kim discovered footage that they believed showed O'Diah stealing money from the cash registers and the employee tip jar. ( Id. ¶ ¶ 14–16).

A few days later, O'Diah was called into Shin's office and told that “employee tips were low” while he was on vacation, but “high” ever since he returned. (Compl., Ex. A at 1). Shin then showed O'Diah the surveillance tape footage. ( Id.). After being confronted with the footage, O'Diah admitted taking cash from the registers, but explained that the registers had insufficient change for customers, which required him to exchange money from the register for the smaller bills and coins in the tip jar. ( Id.; Defs.' Stmt. ¶ 17). Ensuring that the store had adequate change was apparently Mrs. Shin's responsibility, but O'Diah explained to Shin that, because she had not been present, he was forced to “improvise.” (Compl., Ex. A at 1). O'Diah also stated that he sometimes took money to the bank in order to get change. (Defs.' Stmt. ¶ 19). According to O'Diah, Shin accepted his explanation and apologized, stating that he would make sure that Mrs. Shin was available more often so that the store had sufficient change. (Compl., Ex. A at 1).

Some time later, Shin and his wife again confronted O'Diah about amounts allegedly missing from the cash register. (Stauble Aff. at 1). Stauble, who observed the scene, heard them asking O'Diah in “raised angry voices” where the missing money had gone. ( Id.). After O'Diah insisted that he had not taken any money, Shin shook his head and said, “fucking Nigerian no good need new manager.” ( Id.). According to Stauble, the cash discrepancy likely had been caused by an accidental “over ring.” ( Id.).

On August 23, 2010, Shin once again called O'Diah into his office to confront him with surveillance tape footage that showed O'Diah taking cash from the register and placing it in his pocket. (Compl., Ex. A at 2; Defs.' Stmt. ¶ 29). O'Diah explained that the register again had run out of change and, because Mrs. Shin was not present at the store, he needed to run across the street to get more change. (Compl., Ex. A at 2). In response to Shin's inquiry as to why he was reaching under the counter, O'Diah said that he “had to get the key to [the] safe” to determine whether he needed to get more change. ( Id.). Evidently unconvinced by that explanation, Shin directed his assistant to call the police. ( Id.). When O'Diah protested that he had no motivation to steal from Roastown since he had “helped ... build th[e] store to the way it is now,” Shin responded by pointing his finger and stating: “You Nigerians can't be trusted.” ( Id.).

While they were waiting for the police to arrive, Shin asked several “Korean friends” to join them in his office. ( Id. at 3). O'Diah asked why Shin was inviting these individuals into the room, but Shin did not respond. ( Id.). O'Diah also has a website design business and, at some point during his employment at Roastown, Shin had hired him to create a website for the café. (Midwood Decl., Ex. A ¶¶ 25–26). O'Diah also wished to gain further website business from local Korean customers and business owners. He believes that Shin's reason for inviting his Korean friends into the office therefore was to “humiliat[e]” him “in front of ... potential clients.” (Pl.'s Mem. of Law in Support of Pl.'s Opp. to Defs.' Mot. for Summ. J. (“Pl.'s Opp. Mem.”) (ECF No. 87) at 18).

After the police officers arrived and viewed the surveillance tape, they asked Shin whether there was any additional evidence of theft. (Compl., Ex. A at 3). Although Shin claimed that O'Diah had stolen at least $60, he conceded to the officers that the “total sale receipt” did not reflect any missing amounts. ( Id.). Accordingly, the police concluded that no theft had occurred. ( Id.). They further suggested that O'Diah leave the premises and “take [Shin] to court” for having falsely accused him of stealing. ( Id.).

According to Lugo, O'Diah stopped on his way out of the café and...