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Diaz v. Westin Hotel

March 9, 2007


The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court


This matter is before the Court on Defendants' motion for summary judgment. Doc. no. 18. For the reasons that follow, Defendants' motion for summary judgment is GRANTED.

I. Introduction

Plaintiff, a female citizen of the State of Ohio, brings this action against Defendant Westin Hotel, an Ohio corporation doing business in the State of Ohio.*fn1 Plaintiff brings claims for gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq., and Ohio Revised Code Ch. 4112 (Counts I and II); violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. (Count III); pregnancy discrimination in violation of the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (Count IV); and breach of Ohio public policy (Count V). Plaintiff claims that Defendant discriminated against her by treating her differently than male and non-pregnant employees and terminating her employment. Plaintiff also claims that Defendant terminated her in retaliation for exercising her rights under the FMLA. Plaintiff claims that Defendant's actions constitute a breach of public policy. The Court has subject matter jurisdiction over Plaintiff's claims brought under federal law pursuant to 28 U.S.C. § 1331. Plaintiff invokes the Court's supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367.

II. Background

Plaintiff began her employment with Defendant in 1993 as a part-time employee. She eventually became a full-time Banquet Server. Plaintiff was a member of the Hotel Employees and Restaurant Employees Union, Local 12 ("Union"), and was subject to the collective bargaining agreement between Defendant and the Union. As a Banquet Server, Plaintiff was responsible for serving guests at breakfast, lunch and dinner events and receptions. Her duties included setting up buffets, serving food to guests at tables, passing food by tray to standing guests, and serving beverages. From 1999 until her termination, Plaintiff reported to Banquet Manager Kim Roberts. Roberts in turn reported to John Wedig, Food and Beverage Director.

The collective bargaining agreement sets forth Defendant's right to make and enforce work rules. Defendant has established standards of conduct, performance and attendance, which are enforced through a progressive discipline system. Pursuant to this system, when an employee commits a rule infraction or is deficient in his or her work performance, the employee's supervisor or manager documents the details surrounding the incident on a disciplinary form. The form is then submitted to the Human Resources Department, which determines whether discipline is appropriate and, if so, indicates the level of discipline warranted by the infraction. An employee generally receives coaching prior to being issued formal discipline. Formal discipline includes two verbal warnings and three written warnings. The second written warning is considered the "last and final warning" before discharge and is marked accordingly. Upon receipt of a third written warning, an employee is suspended pending investigation and possible discharge. Discipline is cumulative for all performance deficiencies and infractions.

In 2000, Roberts rated Plaintiff's performance as "unsatisfactory." Over the following three years, Plaintiff received an overall rating of "satisfactory."

In the autumn of 2003, Plaintiff informed Defendant that she was pregnant and due at the end of the year. In late October, Defendant honored Plaintiff's physician's recommendation that she not work more than two consecutive shifts in a day. In late November, after Plaintiff's physician determined she could not continue working, Plaintiff obtained family and medical leave from December 1, 2003, until eight weeks post-partum. Plaintiff exhausted her twelve weeks of FMLA leave. On February 26, 2004, she requested five additional weeks of leave to have cataract surgery on both eyes. Defendant approved leave through the requested date of April 5, 2004.

Plaintiff returned to her full-time server position without restrictions on April 5, 2004. She received her annual review for the 2003-04 review year. Roberts rated Plaintiff as meeting expectations in all categories.

On May 6, 2004, Defendant received a complaint from a customer about a "coffee break" group running out of coffee, which occurred while Plaintiff and a co-worker, Miguel Alcalde, were providing coffee service.*fn2 Defendant wrote off the customer's charges in response to the complaint. Plaintiff received a verbal warning while Alcalde received a documented coaching. Plaintiff contested the discipline and the Union filed a grievance on her behalf. Plaintiff admitted that she had been left in charge of training Alcalde, who she described as a "new employee who hadn't worked banquets before;" she had assigned him to handle a function on his own while she took a larger function; and she had used her judgment and instructed him to use two small coffee urns and one hot water urn for the coffee service when he had wanted to use a three-gallon coffee urn. Plaintiff's depo., pp. 70-72, 148, 151-52; depo. exh. 26. Defendant denied the grievance, and the Union did not pursue arbitration. Hakes Decl., ¶ 9.

One week later, Plaintiff received a second verbal warning for taking an unauthorized break during a guest function. Forty-five minutes into the event, Plaintiff was discovered three floors away from the event on the receiving dock with her friend and co-worker who was also assigned to the event, Francesco Ferrari. Defendant alleges that she was taking a break when she should have been passing hors d'oeuvres at the function. Hakes Decl., ¶ 10; Plaintiff's depo., exh. 29. Plaintiff admittedly had not asked Roberts' permission to take a break. Plaintiff's depo, p. 164.

Four months later, in September 2004, Plaintiff received her first written warning, which was for taking food from the hotel without permission in violation of company policy. Plaintiff received the warning from Wedig, who prepared a discipline form and submitted it to Human Resources. Plaintiff's depo., pp. 85, 89; depo. exh. 32.

On October 7, 2004, Plaintiff received her "last and final" warning for not completing a work assignment before clocking out. Plaintiff received the warning from Assistant Banquet Manager Marcel Riddle for leaving a banquet cart full of dirty banquet service items unloaded for employees on the following shift to clean up and put away. Plaintiff's depo., exh. 33; Hakes Decl., ¶ 11.

Two days later, on October 9, 2004, Plaintiff was scheduled to work a double shift beginning at 5:00 a.m. Plaintiff called Roberts at 7:30 a.m. as the breakfast shift was concluding and told her that her alarm clock had not gone off. Roberts instructed Plaintiff to report for the lunch shift. Roberts subsequently documented Plaintiff's missed shift and submitted it to the Human Resources Department for review. Hakes concluded that suspension pending investigation and discharge was appropriate. On October 13, 2004, Roberts met with Plaintiff and informed her that she was suspended pending investigation and possible discharge. After reviewing Plaintiff's progressive discipline, Hakes concluded that discharge was warranted. She informed Plaintiff on October 15, 2004, that her employment was terminated. Plaintiff contested her discharge, the Union filed a grievance on her behalf, the Westin denied the grievance at each stage of the grievance process, and the Union did not pursue arbitration. Hakes Decl., ¶¶ 13, 14; Plaintiff's depo., exh. 7.

At some point during her employment, Plaintiff had complained to Hakes that the rules were being applied inconsistently and about Roberts' supervision. Hakes depo., pp. 71-72; Roberts depo., pp. 45-47. According to Plaintiff and Ferrari, Roberts had told them that they were troublemakers because they spoke up about the unfair treatment. Plaintiff's depo., pp. 57-58; Ferrari Aff., ¶ 10, doc. 22, attachment. Roberts found fault with Plaintiff because she "wanted to know what everybody else was doing" and she considered her a "busybody." Roberts depo., pp. 74-77. On June 14, 2004, Plaintiff wrote a letter to General Manager Bodington and told him the rules were not being enforced equally in the Banquet Department, there was favoritism, and there were unclear rules. Plaintiff's depo., pp. 167-68; see Hakes depo, p. 74. Bodington never received the letter. Bodington depo., pp. 18-19.

Plaintiff was the only female employee who became pregnant while reporting to Roberts. According to Ferrari, Roberts spoke negatively about Plaintiff to other employees after Plaintiff returned from maternity leave. Ferrari Aff., ¶ 12. Roberts did not notice a difference in Plaintiff after her return from maternity leave and did not notice that having a newborn affected Plaintiff's work. Roberts depo., pp. 70, 78.

III. Summary judgment standard

Summary judgment is proper "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). The evidence presented on a motion for summary judgment is construed in the light most favorable to the non-moving party, who is given the benefit of all favorable inferences that can be drawn therefrom. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis in original). The court will not grant summary judgment unless it is clear that a trial is unnecessary. The threshold ...

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