627 F.Supp.3d 296
S.D.N.Y.2022Background
- Cynthia Ball worked at the Westin New York at Times Square (a Marriott property) since 2003 as a server and union delegate; she alleges three incidents of customer sexual harassment: Oct 18, 2016; Sept 10, 2017; and Sept 18, 2017.
- After the Oct 2016 incident a supervisor intervened and Ball met with HR; she was told she would not have to serve that guest again.
- After the Sept 10, 2017 incident security was summoned and Ball met with managers the next day.
- On Sept 18, 2017 Ball reported that a patron grabbed her buttocks; security took statements, Marriott reviewed video, opened an EthicsPoint report, offered FMLA leave, and later installed panic buttons.
- Ball applied for an internal bartender job in mid‑2018; Marriott required a written test; Alfredo Tapia scored highest and was hired on July 26, 2018 (Ball scored one point less).
- Ball filed a NYSDHR complaint (April 30, 2018), received a right‑to‑sue letter, sued under Title VII for hostile work environment and retaliation, and Marriott moved for summary judgment; the court granted Marriott summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile work environment (timeliness & scope) | Ball: incidents from 2016–2017 are part of an ongoing hostile environment and the 2016 incident may be considered under continuing‑violation doctrine. | Marriott: Oct 2016 incident is time‑barred and earlier incidents are not sufficiently related to 2017 events. | Court: 2016 incident was sufficiently related to the 2017 incidents and may be considered. |
| Hostile work environment (imputing third‑party conduct / employer negligence) | Ball: Marriott knew of complaints and failed to take reasonable remedial steps, so customer harassment should be imputed to employer. | Marriott: It responded promptly each time (security, HR meetings, investigation, panic buttons); no negligence or facilitation. | Court: Marriott’s responses were timely and reasonable; no basis to impute customers’ conduct to Marriott; summary judgment for defendant. |
| Retaliation (causation) | Ball: she engaged in protected activity after Sept 2017 and was later passed over for the bartender job—temporal proximity and alleged flaws in hiring process support causation. | Marriott: Hiring occurred ~9–10+ months later, decisionmakers differed, and it learned of NYSDHR complaint after the position was filled—no causal nexus. | Court: Temporal gap too long to infer causation; prima facie causal link not established. |
| Retaliation (pretext) | Ball: the written test was flawed and she was unfairly scored, showing pretext for retaliation. | Marriott: The panel agreed to use a written test; Tapia legitimately scored higher; neutral, non‑retaliatory reason. | Court: Tapia’s higher test score is a legitimate reason; Ball failed to show pretext; summary judgment for defendant. |
Key Cases Cited
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (hostile‑work‑environment claims permit consideration of time‑barred acts if part of same practice and at least one act falls within the limitations period)
- McGullam v. Cedar Graphics, Inc., 609 F.3d 70 (2d Cir. 2010) (relatedness test for pre‑limitation acts in hostile environment claims)
- Summa v. Hofstra Univ., 708 F.3d 115 (2d Cir. 2013) (employer not liable for third‑party harassment where it took prompt, remedial action)
- Leroy v. Delta Air Lines, Inc., 36 F.4th 469 (2d Cir. 2022) (imputing non‑employee discrimination requires employer control or negligence permitting the conduct)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (retaliation claims require but‑for causation)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (definition and objective/subjective standard for hostile work environment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for discriminatory/retaliatory employment claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for granting summary judgment)
- Vance v. Ball State Univ., 570 U.S. 421 (2013) (employer negligence and avenues for complaint relevant to imputing coworker/third‑party harassment)