Mendez v. Starwood Hotels & Resorts Worldwide Inc.

• Decision Date: 30 September 2010
• Docket Number: No. 08 Civ. 4967(CM).,08 Civ. 4967(CM).
• Court: U.S. District Court — Southern District of New York
• Parties: Moises MENDEZ, Plaintiff,v.STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Defendant.

746 F.Supp.2d 575

Moises MENDEZ, Plaintiff,

v.STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Defendant.

No. 08 Civ. 4967(CM).

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

Sept. 30, 2010.

Ariel Yigal Graff, Kenneth P. Thompson, Andrew Scott Goodstadt, Scott Browning Gilly, Thompson Wigdor and Gilly, New York, NY, for Plaintiff.Michael Starr, Hogan & Hartson L.L.P., Loren Lee Forrest, Jr., Holland & Knight LLP, New York, NY, for Defendant.

DECISION AND ORDER DENYING NEW TRIAL ON RACE AND NATIONAL ORIGIN DISCRIMINATION CLAIMS; DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW ON RETALIATION CLAIM; GRANTING DEFENDANT'S MOTION FOR REMITTITUR; AND DENYING MOTION FOR ATTORNEY'S FEES WITHOUT PREJUDICE TO RENEW

McMAHON, District Judge.

INTRODUCTION

On March 10, 2010, following a multi-week trial, a jury found Starwood Hotels & Resorts Worldwide, Inc. (“Starwood” or “Defendant”) liable to Moises Mendez (“Plaintiff”), who was employed at the Westin Times Square branch of the hotel management chain, on a single claim. Mr. Mendez's complaint raised a variety of claims, including discrimination based on national origin (Ecuadorian) and race (Latino) and disability (diverticulitis and diabetes). The jury found for defendant on all of those claims. They found for Mendez on just one claim: that the hotel had impermissibly retaliated against Mendez for engaging in a protected activity (complaining about the harassment that underlay his other claims). The purported retaliation consisted of installing a hidden camera above his work station, where it remained for eight days before co-workers found and disabled it. Defendant claimed that the camera was installed to help management investigate Mendez's claims about vandalism at his work station and locker, but the jury obviously rejected that defense. For this single transgression, the jury awarded Mendez $1 million in compensatory damages and $2 million in punitive damages.

On April 7, 2010, Starwood moved, pursuant to Federal Rule of Civil Procedure 50(b), for entry of judgment as a matter of law in its favor, arguing principally that (1) the jury's verdict was based upon “surmise and conjecture,” and (2) that installation of the hidden camera in and of itself was legally insufficient to constitute actionable retaliation. ( See Docket No. 117.) In the alternative, Starwood asked this Court to remit the jury's award of damages or order a new trial on the issue of retaliation, pursuant to Federal Rule of Civil Procedure 59. ( Id.)

Two weeks later, on April 21, 2010, Plaintiff, who had opposed both of Starwood's post-trial motions, moved for an award of attorneys' fees. ( See Docket No. 121.)

Shortly thereafter, on April 26, 2010, the Court notified the parties, pursuant to Federal Rule of Civil Procedure 59(d), that it was sua sponte considering directing a new trial on the issue of racial/national origin discrimination—as to which the jury had found in favor of defendant—on the ground that the jury's verdict in favor of Defendant on that claim was against the weight of the evidence. ( See Docket No. 128.) The parties were ordered to address this issue in supplemental briefs.

After an exhaustive review of the trial record and consideration of the parties' presentations, the court (1) declines to order a new trial on the issue of racial/national origin discrimination; (2) dismisses the motion for judgment as a matter of law on the retaliation claim; (3) grants the motion to remit the damage award on the retaliation claim; and (4) denies the motion for an award of attorneys' fees without prejudice.

FACTS

The following statement of facts is drawn from the trial record.

Moises Mendez began working at the Westin as a “food runner” beginning in June 2003. (Tr. 394:21; 408:12–14.) A “food runner” is what it sounds like—an individual who carts food to different areas or banquet halls of the hotel. (Tr. 399:7–11 (Mendez).)

For two weeks after he finished the hotel's orientation program for food runners, Mendez worked a morning shift, from 5:30 a.m. to 1:30 p.m. (Tr. 409:9–14.) By the end of the second week, Mr. Mendez explained that his “body was not taking that schedule” (Tr. 409:16). Intending to quit, he gave notice to the then-executive chef, David Ribbens (Tr. 408:15–17 (identifying Ribbens as the executive chef); 410:4–5 (providing notice to Ribbens)). Five days after he gave notice, Chef Ribbens asked Mendez why he was leaving; when Mendez identified his schedule as the precipitating cause, Chef Ribbens gave plaintiff a different work slot. (Tr. 410:9–20.)

Mendez continued to work as a food runner at the Westin for approximately eight months, until he accepted a position as a baker at the hotel in early 2004. (Tr. 408:12–14.) Mr. Mendez continued to work as a baker at the hotel through the date of the trial. (Pl.'s Br. at 1.) As far as the court is aware, he remains employed at the Westin to this day.

Between 2004 and 2008, Mendez claims to have been subjected to harassment and a hostile work environment on the grounds of his race and national origin. His retaliation claim at trial related solely to an incident that took place in the spring of 2008, after he filed several complaints with the New York State Division of Human Rights. Mendez also claimed to have been subjected to harassment and a hostile work environment on the ground of disability, and much of the most graphic and disturbing testimony at trial focused on the teasing plaintiff suffered about some sort of fistula or scar on his gut, which resulted from surgery for plaintiff's diverticulitis. This wound was referred to by one or more ribald and insensitive co-workers or supervisors as plaintiff's “mangina.” However, the jury rejected plaintiff's disability discrimination claim and the court did not sua sponte raise the issue of ordering a new trial on that issue. Therefore, this opinion will not catalogue the extensive testimony that relates to plaintiff's disability discrimination claims (including hostile work environment based on disability)—I simply note that this testimony was extensive and disturbing.

I. HOSTILE WORK ENVIRONMENT

The following timeline is helpful in assessing plaintiff's claim of hostile work environment on the ground of race (Latino) or national origin (Ecuadorian):

+--------------------------------------------+
                ¦Timeline of Hostile Work Environment Claim  ¦
                +--------------------------------------------+
                

                June 2003                 Mendez hired as a food runner at the Westin (Tr
                                          394:21; 408:12–14.)
                Dec. 2003                 Mendez told “No Spanish in the kitchen” (Tr. 413:2–3
                                          Tr. 414:14–17; 631:16–632:5.)
                Early 2004                Mendez is promoted to baker (Tr. 427:15.) Verbal
                                          harassment by Blanco (Tr. 436:8–437:24.)
                Late 2004 or mid–2005     Threat by Rodriguez (Tr. 531:2–5.)
                Jan. 2005                 Mendez finds three notes in his locker (PX10, PX 102
                                          & PX 103.)
                April 2006                Threat by Morales (Tr. 531:17–18.)
                2006–2007                 Other employees told not to speak Spanish in the
                                          Service Express Department (Tr. 423:25–424:5.)
                June 2007                 Mendez finds one note in his locker (PX 9.) Rotolo
                                          makes a threatening gesture (Tr. 525:16–17.)
                October 2007              Rotolo: “Ecuadorians are dumbs [sic]” (Tr. 513:8–11
                                          770:15–18.)
                December 2007             Writing on oven: “Sir Moises Miss Baker” (Tr. 651:14
                                          733:3–7.)
                June 2008                 Kleinman punches Mendez with salad bowl (Tr
                                          559:7–13; 56–17.)
                                          Pornography left at Mendez's work station and locker
                Between 2005 and 2007     on multiple occasions (Tr. 501:6–12; 573:3
                                          725:11–15.)
                                          Verbal harassment by Blanco, Craddock, Monetta
                Unidentified              Morales, Tello, and Seguro (Tr. 453:1–19; 454:11–13;
                                          455:7–456:14.)
                Unidentified              Tello pushes Mendez (Tr. 538–539.)
                

What follows is a summary of the testimony about the above-recited incidents. I have grouped them by the type of harassment or hostility that they purport to evidence.

A. Prohibitions on Speaking Spanish“No Spanish in the Kitchen” (2003)

While he was a food runner, Mendez said that he heard “different languages” being spoken “openly,” “every day” in the kitchen, including “Chinese, Filipino, [and] African.” (Tr. 411:1–16.) Mendez himself spoke Spanish in the kitchen with a number of people in the early days of his employment, when he was a food runner. (Tr. 411:14–412:3.) Mendez testified that Chef Ribbens and Executive Sous Chef Joanne (he did not recall her last name (Tr. 408:22–23)) were present when other languages were spoken in the kitchen.

Mendez testified that, in December 2003, Chef Ribbens ordered Mendez and another food runner, Melvin Morales, to stop speaking Spanish in the kitchen. (Tr. 413:2–3.) Specifically, Mendez stated that Chef Ribbens “yelled, No fucking Spanish in the kitchen, with fingers pointed at me.” (Tr. 414:14–17; 631:16–632:5.) Ribbens testified that the incident never occurred (Tr. 2135:16–20), and insisted that he had never instructed Mendez not to speak Spanish in the kitchen (Tr. 2135:21–23).

One week after the incident with Chef Ribbens, he was speaking Spanish in the kitchen again, although he was not sure with whom (it might have been Pastry Chef Carla Burrowes). (Tr. 418:15–17.) Mendez stated that when Chef Joanne overheard the exchange, she “reminded me [Mendez] that Mr. Ribbens, my boss, Executive Sous Chef Ribbens told me that I'm not supposed to speak Spanish in the kitchen. She reminded me that I was on the union work probation, that was six months because the hotel was new, and if I kept speaking Spanish in the kitchen, the union would do...