United States District Court, D. Columbia.
For JAMES WARE, Plaintiff: Donald M. Temple, LEAD ATTORNEY, DONALD M. TEMPLE, P.C., Washington, DC.
For HYATT CORPORATION, Defendant: Kelly M. Scindian, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD LLC, Washington, DC; Nathan Joshua Oleson, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD LLP, San Antonio, TX.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff James Ware brings this action against the Hyatt Corporation, alleging that the defendant subjected him to a hostile work environment on the basis of both his age and his race, in violation of the Age Discrimination in Employment Act of 1967, as amended (" ADEA" ), 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964, as amended (" Title VII" ), 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment on both claims. Def.'s Mot. for Summ. J. [Dkt. # 35] (" Def.'s Mot." ). Because the Court finds that there is no genuine dispute of material fact regarding the severity and pervasiveness of the age-related conduct at issue, and because plaintiff's Title VII hostile work environment claim is time-barred, defendant is entitled to judgment as a matter of law on both claims. Therefore, the Court will grant defendant's motion for summary judgment and dismiss the case.
I. Factual Background
Plaintiff James Ware is a 66-year old African-American male. 3d. Am. Compl. [Dkt. # 17] (" 3d Am. Compl." ) ¶ 3. From 1976 until 2009, he worked full-time in the culinary department at the Hyatt Regency hotel on Capitol Hill (" the Hyatt" or " the hotel" ). Def.'s Statement of Undisputed Material Facts in Supp. of Def.'s Mot. [Dkt. # 35-2] (" Def.'s SOF" ) ¶ ¶ 9, 11. Over the years, plaintiff received several promotions, eventually holding the position of sous chef in the hotel's Park Promenade restaurant. Id. ¶ 10. As a sous chef, plaintiff's responsibilities included preparing and producing food, menu planning, assisting with scheduling, handing out
work assignments to the Park Promenade staff, and ensuring staff compliance with defendant's policies. Id. ¶ 14. Plaintiff received an hourly wage plus approximately ten hours of overtime per week, and he typically worked Tuesday through Saturday. Id. ¶ ¶ 11, 13.
During the relevant period of his employment, plaintiff first reported to executive chef Greg Bauer, from November 1996 to May 2006, and then to executive chef Michael Barber, from May 2006 through plaintiff's departure. Id. ¶ ¶ 15, 20. Plaintiff also reported to executive sous chefs Kevin Villalovos, from August 2006 to March 2008; Trevor Burt, from February 2007 to March 2009; Tom Olson, from April 2007 through plaintiff's departure; and Nicolas Flores, from August 2008 through plaintiff's departure. Id. ¶ ¶ 16, 20.
Plaintiff alleges that beginning in approximately 2002, when he was diagnosed with diabetes and arthritis, his managers at the hotel began to treat him differently. 3d Am. Compl. ¶ 6. Specifically, plaintiff claims that he was singled out on the basis of his age and race, and that he was subjected to a hostile work environment in violation of the ADEA and Title VII. Id. ¶ ¶ 8, 20-31; see generally Pl.'s Corrected Opp. to Def.'s Mot. for Summ. J. [Dkt. # 38-1] (" Pl.'s Opp." ).
In support of his ADEA hostile work environment claim, plaintiff alleges that he was subjected to numerous instances of discriminatory conduct, including certain statements made by the executive chef:
o Executive chef Barber made " maybe more than ten," but " perhaps" less than twenty, comments about plaintiff's age. Dep. of James Ware, Dec. 5, 2013, Corrected Ex. 1 to Pl.'s Opp. [Dkt. # 40-1] (" Ware Dep. in Supp. of Pl.'s Opp." ) 159:4-18.
o Of those, plaintiff recalls only four or five specific comments, including one incident, in or around 2007, when Barber told plaintiff, " you are too old to have this job." Pl.'s Opp. at 5, 11; Ware Dep. in Supp. of Pl.'s Opp. 157:2-24.
o On one or two occasions at an unknown point in time, Barber commented about Ware's arthritic walk, stating, " here come the old man, wobbling down the hall." Pl.'s Opp.
at 5, 11; Ware Dep. in Supp. of Pl.'s Opp. 90:3-91:6.
o With regard to plaintiff's use of BenGay for his arthritic joints, Barber once commented, " [s]omething in here smells. . . . Oh, that's just James Ware." Pl.'s Opp. at 5, 11; Ware Dep. in Supp. of Pl.'s Opp. 92:2-10, 93:2-5.
o In March 2009, the floor mats plaintiff used to relieve arthritis pain caused by long periods of standing were removed from plaintiff's work station. Pl.'s Opp. at 5, 11; Ware Dep. in Supp. of Pl.'s Opp. 93:23-94:8. Plaintiff does not know who moved the floor mats or why they were taken. Ware Dep. in Supp. of Pl.'s Opp. 94:9-11. Plaintiff discussed the missing mats with Barber, who told him " if [he] was a younger man, [he] wouldn't need the mats," and that " the hotel can't afford them, so [he]'d just have to buy more BenGay." Pl.'s Opp. at 5, 11-12; Ware Dep. in Supp. of Pl.'s Opp. 93:23-94:8.
According to plaintiff, executive sous chef Tom Olson also made comments about plaintiff's age:
o " [A] lot of times," instead of calling plaintiff by his first name, " he'd say, 'Hey, old man,'" even after plaintiff told Olson, " I'm not your old man." Pl.'s Opp. at 6, 12; Ware Dep. in Supp. of Pl.'s Opp. 164:16-21, 165:6-25. Plaintiff recalls that this occurred shortly before he decided to leave the hotel. Pl.'s Opp. at 6, 12; Ware Dep. in Supp. of Pl.'s Opp. 166:2-21.
o Olson also once said to plaintiff, " '[c]ome on, old man, you need to move faster,' or something to that effect." Pl.'s Opp. at 6, 12; Ware Dep. in Supp. of Pl.'s Opp. 164:16-165:2.
Plaintiff recounts comments about his age made by other staff, as well:
o The hotel's General Manager (" GM" ) Michael Smith once commented to plaintiff that plaintiff " wasn't moving as fast as [he] used to move," but plaintiff could not recall when this occurred. Def.'s SOF ¶ ¶ 20, 45; Ware Dep. in Supp. of Def.'s Mot. 145:7-17.
o Executive sous chef Trevor Burt testified that Barber and John Davenhall, the hotel's Food and Beverage Director, " called [plaintiff] old man all the while." Pl.'s Opp. at 6; Dep. of Trevor Burt, Mar. 31, 2014, Ex. 3 to Pl.'s Opp. [Dkt. # 38-2] (" Burt Dep." ) 85:1-20.
In addition, plaintiff offered evidence of comments made to or overheard by other employees when plaintiff was not present:
o When Burt was hired in February 2007, Barber made a comment to him to the effect of " James [Ware] is horrible . . . James is an old man, you know, we've got to get James
out of here." Pl.'s Opp. at 5; Burt Dep. 95:1-8. Barber also told Burt that plaintiff " was an old guy . . . he needs to go, he's slow. . . . He walks with a limp." Pl.'s Opp. at 6; Burt Dep. 39:9-25, 40:21-23, 41:1-10.
o At some point in 2009, Barber said to Aminata Mansaray, a banquet sous chef, and other kitchen personnel, " [y]ou people are too old anyway" to be in the kitchen. Pl.'s Opp. at 5-6, 12; Dep. of Aminata Mansaray, Mar. 31, 2014, Corrected Ex. 4 to Pl.'s Opp. [Dkt. # 40-1] (" Mansaray Dep." ) 23:10-21.
o Davenhall once told Mansaray, " you old people need to leave so young blood can come in." Pl.'s Opp. at 6; Mansaray Dep. 75:2-8.
In support of his Title VII hostile work environment claim based on racial discrimination, plaintiff asserts that Restaurant Manager Matt Zylstra called plaintiff " black boy" " more than one time," although this did not occur " frequently." Pl.'s Opp. at 2; Ware Dep. in Supp. of Pl.'s Opp. 163:3-20. Plaintiff also states, in connection with the Title VII count, that Zylstra addressed him by saying, " hey, dummy" " on more than one occasion," and called him " fat" more than ten, but less than twenty, times. ...