Lopes v. Caffe Centrale LLC

• Decision Date: 16 April 2008
• Docket Number: No. 06 Civ. 9927.,06 Civ. 9927.
• Citation: 548 F.Supp.2d 47
• Parties: Rogerio Henrique LOPES, Plaintiff, v. CAFFE CENTRALE LLC and Manager K.C. Lam as Aider and Abettor, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 47

548 F.Supp.2d 47

Rogerio Henrique LOPES, Plaintiff, v. CAFFE CENTRALE LLC and Manager K.C. Lam as Aider and Abettor, Defendants.

No. 06 Civ. 9927.

United States District Court, S.D. New York.

April 16, 2008.

Rogerio Henrique Lopes, Astoria, NY, pro se.

Epstein Becker & Green, P.C., by: Brian G. Cesaratto, Esq., New York, NY, for Defendants.

OPINION

SWEET, District Judge.

Defendants Caffe Centrale LLC ("Caffe Centrale") and K.C. Lam ("Lam") (collectively, the "Defendants") have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure to dismiss the pro se complaint of plaintiff Rogerio Henrique Lopes ("Lopes") alleging a hostile work environment and a constructive discharge. For the reasons set forth herein, the motion is granted as to the Title VII claims against Defendant Lam, as well as to Lopes' claims alleging discrimination based on race, color, and/or national origin. Defendants' motion for summary judgment is denied as to Lopes' sex discrimination claims.

The difficulties in resolving claims of a hostile work environment are well-recognized. See, e.g., Prince v. Madison Square Garden, 427 F.Supp.2d 372 (S.D.N.Y.2006); Zakre v. Norddeutsche Landesbank Girozentrale, 396 F.Supp.2d 483 (S.D.N.Y.2005). As explained below, Lopes, a pro se plaintiff, has, however inartfully, raised a factual issue sufficient to defeat the Defendants' motion for summary judgment as to his sex discrimination claims.

Prior Proceedings

On January 19, 2007, Lopes, formerly a bar-back at Bottega Del Vino (the "Restaurant"), an upscale restaurant operated by Caffe Centrale, filed his Amended Complaint, pro se, alleging that Defendants subjected him to a hostile work environment and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17 ("Title VII"). Although Lopes did not explicitly assert a claim for hostile work environment, the factual allegations set forth in the pro se Amended Complaint suggest assertion of such a claim, and in the instant motion, the Defendants have so construed it. Although the Defendants have not addressed Lopes' claims with regard to state and city law, Lopes' complaint can also be read to raise claims under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § .296, and New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-107 et seq. As "consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims," except as otherwise noted, the Court's conclusions with regard to Lopes' Title VII claims apply equally to his state and city claims. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir.2000) (citing Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir.1999)) (New York state law); Landiwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (App. Div. 1st Dep't 1995) (New York City law); see also Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir.2006).

Discovery proceeded and Lopes was deposed. The instant motion was marked fully submitted on September 12, 2007.

The Facts

The following facts are set forth in Defendants' Rule 56.1 Statement, which was not properly opposed by Lopes. However, his amended complaint and deposition raise issues of fact, which are noted below.¹

Lopes was born in Brazil in 1965 and came to the United States in 1990. He worked for over 10 years shining shoes at various establishments, including law firms, and took courses to learn English, enrolling in Manhattan Community College. Lopes was subsequently employed as a busboy at the Boathouse restaurant in Manhattan.

Lopes was then employed as a bar-back at the Restaurant from October 2004 until his termination on June 29, 2006. (Affidavit of K.C. Lam ("Lam Aff.") ¶ 3).

According to Lopes, in early 2005, a customer at the Restaurant, Vicenzo Sciacchitano ("Sciacchitano"), referred to Lopes as "she," "her," "jungle boy," and "third-world boy" to third persons within earshot of Lopes. Lopes alleges that Sciacchitano also blew kisses at him, blew on his neck, and touched him on his waistline and his genitals. According to Lopes, he advised Lam, the Restaurant's manager, of this conduct and requested that Lam ask Sciacchitano to desist. Lopes claims that Lam told him to go along with the Sciacchitano, that Sciacchitano was a homosexual, and that he had a lot of influence with other customers. Lam denies being so advised by Lopes, and also denies having made the statements Lopes attributes to him.

According to Lopes, in late April, 2005, Sciacchitano approached him on the street after the Restaurant's closing time and sought to embrace and kiss him. According to Lopes, he resisted and ended the encounter, but Sciacchitano continued his suggestive conduct when in the Restaurant.

On June 28, 2005, Lopes confronted Sciacchitano while he was dining with another customer at the Restaurant, addressed him as a "faggot," and demanded that he cease his harassment (the "Altercation").

The Restaurant has written rules of employee conduct: "No arguing with the customers for any reason-Call Manager with any issues" and "No arguing or discrepancies in the restaurant." (Def. 56.1 ¶ 5; Lam Aff. Ex. A).

The day after the Altercation, June 29, 2005, Lam and Lopes discussed the Altercation in Lam's office at the Restaurant (the "June 29 Meeting"), at which time Lopes admitted to, and sought to explain, the Altercation. According to Lam, this was the first time that he heard that Lopes had any problems with Sciacchitano. During the June 29 Meeting, Lam told Lopes that his behavior toward Sciacchitano on June 28, 2005, was inappropriate and that unless he apologized to Sciacchitano for the Altercation, his employment at the Restaurant would be terminated.

According to Lopes, when he inquired as to what would happen if his apology were not accepted, Lam stated that Lopes would be fired. Lopes alleges that when he asked Lam if he would have to accede to a request for sexual favors if such a request were made by Sciacchitano, Lam stated, "If that is what it takes him to accept your apology, do it. Do whatever it takes him to accept your apology." (Lopes Dep. at 185). Lam has denied Lopes' version of this conversation.

According to Lopes, faced with these alternatives, he resigned, an act which, had he been more schooled in employment discrimination law, he might have characterized as a constructive discharge.

On July 8, 2005, Lopes filed a complaint with the New York State Department of Human Rights, which issued a determination of "no probable cause" on April 6, 2006. (PL. Aff. in Opp. Ex. G). The Equal Employment Opportunity Commission issued Lopes a right to sue letter on July 26, 2006.

The Summary Judgment Standard

In deciding a motion for summary judgment, a court shall render judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 411 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weinstock v. Columbia Univ. 224 F.3d 33, 41 (2d Cir.2000). A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997).

The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York. 762 F.2d 243, 249 (2d Cir.1985). Moreover, because Lopes is proceeding pro se, the Court has an obligation to "read his supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. If there is not, summary judgment is proper. See id. at 249-50, 106 S.Ct. 2505.

A Factual Issue Has Been Presented With Respect to the Hostile Environment and Constructive Discharge Claims

Granting Lopes the inferences to which he is entitled as the party opposing a motion for summary judgment, the Court finds that his version of the facts, more specifically the requirement that he submit to a customer's sexual demands in order to keep his job, if true, appear to set forth a claim of sexual harassment such that a reasonable fact-finder could conclude that Lopes was subject to a hostile working environment and constructive discharge.

Although Lopes alleges in the Amended Complaint that he was discriminated against based on his religion, the Amended Complaint fails to set forth a basis for such claim. (Compl.¶ 7). At his deposition, he explained that his religion claim was premised on Sciacchitano's alleged sexual harassment and Lam's purported condonation of...