Employee Fails to Show He Suffered Discrimination, Retaliation

Hospitality Law May 2018

Carly Baratt, Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Hospitality Law, titled “Employee Fails to Show He Suffered Discrimination, Retaliation.”

Following is an excerpt:

A well-established record of policy infractions helped a restaurant owner/operator to obtain summary judgment in its favor against a pro se plaintiff who claimed discrimination based on race and national origin, sexual harassment, and retaliation. Montanez v McDean LLC, Case No. 1:16-CV-447 (N.D.N.Y. March 6, 2018).

In this case, Montanez, a Hispanic male of Puerto Rican descent, was responsible for food preparation and cleaning at the restaurant. He claimed he was made to perform menial tasks and subjected to offensive comments about his and his girlfriend’s race, was a target of sexually suggestive remarks by an individual at the restaurant with supervisory responsibility, and was put on probation after he filed a complaint with the Division of Human Rights.

In response, the employer submitted evidence demonstrating that Montanez’s brief two-month tenure at the restaurant was replete with disciplinary issues. Specifically, Montanez received numerous written warnings for violating restaurant policies, including eating and smoking during shifts, taking out the trash without permission, taking overlong lunch breaks, making inappropriate comments to a pregnant employee, and failing to show up to work (including during his probationary period). Therefore, according to McDean, Montanez was properly dismissed for his repeated violations of workplace policies.

The court agreed. At the outset, the court acknowledged that Montanez did not heed its warning about the consequences of failing to properly contest the employer’s statement of material facts. Nevertheless, due to Montanez’s “pro se status and of the potentially case-ending nature of defendant’s motion,” the court did not deem the employer’s statement of material facts admitted; rather, it independently reviewed Montanez’s various submissions “to identify any genuine disputes over the facts.” In so doing, the court did identify discrepancies in the parties’ accounts. Yet, even resolving such disputes in Montanez’s favor, the court still found that Montanez could not make out his Title VII discrimination, sexual harassment, or retaliation claims.