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BALLATORE v. FAIRMONT HOTELS & RESORTS

February 23, 2004.

GIOVANNI BALLATORE, Plaintiff,
v.
FAIRMONT HOTELS & RESORTS, INC., Defendant



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Giovanni Ballatore charges Defendant Fairmont Hotels & Resorts, Inc. ("Fairmont" or "the Hotel"), with discriminating against him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by reducing the number of his scheduled shifts. When he filed a charge to protest this treatment, Ballatore alleges, Fairmont retaliated by harassing him, resulting in a constructive discharge. Fairmont moves for summary judgment. For the following reasons, the motion is granted in part and denied in part.

FACTS

  Plaintiff Ballatore, born in 1936, was employed by Fairmont as an "on-call" banquet server beginning in 1992. (Defendant's Rule 56.1(a)(3) Statement of Material Facts as to Which There is No Genuine Issue (hereinafter, "Def.'s 56, 1") ¶¶ 11, 13.) As a banquet server, Ballatore's responsibilities included serving guests at the Hotel's banquet functions and setting up and cleaning up for such functions. (Id. ¶ 9.) In 2001, Ballatore was one of twelve on-call servers who had earned a spot on the Hotel's "Loyalty List," a list of servers called first when needed to supplement the Hotel's staff of 19 full-time banquet servers. (Id. ¶¶ 7, 12.) Ballatore was the oldest of the twelve; four others were within five years of his age, and the remaining seven were more than twelve years younger than he was. (Id. ¶ 13.) Page 2

  On September 4, 2001, Till Grob, born in 1969, was hired by the Hotel as Director of Banquet Operations. (Id. ¶ 4; Plaintiff's Additional Statement of Material Facts (hereinafter, "Pltf.'s 56, 1") ¶ 3.) As Director of Banquet Operations, Till supervised two banquet managers, William Walker, born in 1966, and Anthony Myers, born in 1962. (Pltf.'s 56.1 ¶ 4.) Beginning in October 2001, Grob assumed the primary responsibility for scheduling on-call servers. (Def.'s 56.1 ¶ 15.) Initially, Grob was not aware of the "Loyalty List," but after he became aware of it sometime in late October, he "made every effort" to schedule servers from that list if full-time servers were not available. (Id. ¶¶ 17-19.)

  Grob testified that within a week after his employment began, he received a written complaint from a customer concerning Ballatore's behavior. (Id. ¶ 34.) Grob does not recall the specific contents of the letter, however; he did not discuss the matter with Ballatore or with anyone else at the Hotel, and he did not retain a copy of it. (Grab's Statement, Exhibit 13 to Plaintiff's Response to Defendant's Rule 56.1(1)(3) Statement (hereinafter "Pltf,'s 56.1 Response"); Grob Dep., Exhibit 1 to Pltf.'s 56.1 Response, at 11-12, 15.)*fn1 Soon after the time that Grob claims to have received this letter, in mid-September 2001, Jose Salazar, a full-time banquet server, called Ballatore directly to ask him to cover a function for Salazar later that day. Ballatore agreed. (Def.'s 56.1 ¶ 71.) Salazar then met with Grob and banquet manager Myers to advise them of the substitution. (Id, ¶ 72.) Grob, who was not yet familiar with many of the servers, asked Salazar who Ballatore was by saying, That's the old man?" (Id. ¶¶ 73, 75; Salazar Dep., Exhibit G to Def.'s 56.1, at 15.) Salazar recalls that when he learned who Ballatore was, Grob responded by saying, "That old man, I don't want him working for me," and "I don't want no extra union people here." Page 3 (Salazar Dep., at 16, 19.) Although Grob would have preferred that another regular full-time server substitute for Salazar, Ballatore claims that Grob ultimately accepted Myers' suggestion that Olga Molina, like Ballatore an on-call union worker, replace Salazar. (Pltf.'s 56.1 Response ¶¶ 77, 79, 82, 84; Pltf.'s 56, 1 ¶¶ 9-11.)*fn2

  In the fall of 2001, Grob asked Anthony Myers, who had been employed as a banquet manager for Fairmont for some time before Grab's arrival, to rank the performance of the Hotel's top 15 on-call servers. Myers did not include Ballatore in this list because, in Myers' view, Ballatore was sloppy and rude; Myers recalled one incident (undated in the record) when a guest asked Ballatore for a different salad dressing and Ballatore responded that "it was either this or nothing." (Def.'s 56.1 ¶¶ 35-36; Myers Aff., Exhibit P to Def.'s 56.1.) Ballatore points out that he was not notified of any performance deficiencies, nor was he disciplined for any such matters prior to July 2002. (Pltf.'s 56.1 Response ¶¶ 35, 36.) Banquet manager William Walker testified that Ballatore behaved disrespectfully and made "snide remarks" during pre-shift meetings. (Walker Dep., Exhibit F to Def.'s 56.1, at 27-28.) Ballatore admits that he was "sometimes outspoken" during such meetings and does not deny that Walker verbally counseled him about this behavior he emphasizes, however, that it did not result in any formal discipline. (Pltf.'s 56.1 Response ¶ 37.) Walker believed Ballatore's "work ethic and job performance" were below standards and preferred not scheduling him, but when he raised the matter with Grob, Grob pointed out that Ballatore's name was on the Loyalty List and directed Walker to call him. (Walker Dep., at 24-25.) Grob admits that he did not schedule Ballatore for a period of time in October, citing the customer Page 4 complaint he had received earlier. (Grob Dep., Exhibit D to Def.'s 56.1, at 20-21.) After the union brought the Loyalty List to his attention, however, Grob asserts that he has adhered to that list and that "[o]n days when other union extras whose names are not on the list worked and Mr. Ballatore was not scheduled I was either unable to reach Mr. Ballatore, he did not call in to inquire about shifts as is the current procedure with all union extras or he was already scheduled to work at another property when I contacted him." (Grob Statement, Exhibit 13 to Pltf.'s 56.1 Response.)

  Although the collective bargaining agreement between Fairmont and its servers requires that seniority should be honored, Plaintiff admits that the Hotel does not in fact schedule Loyalty List servers in order of seniority. (Collective Bargaining Agreement, Exhibit 8 to Pltf.'s 56.1 ¶ 25(e); Def.'s 56.1 ¶ 20; Pltf.'s 56.1 ¶¶ 25, 26.) Instead, Grob considered the servers' performance history, their availability, and their disciplinary records in making scheduling decisions. (Def.'s 56.1 ¶ 21.) Grob testified that performance involves completing work assignments, showing up on time, and doing the job as assigned. (Pltf.'s 56.1 ¶ 20.) Grob did not recall any tardiness issues with Ballatore; did not recall whether Ballatore declined any job assignments in late 2001; and acknowledged that Ballatore received no formal discipline in 2001. (Grob Dep., Exhibit D to Def.'s 56.1, at 23-25.) He nevertheless scheduled Olga Molina (born 1957), Donaciano Sota (born 1955), and Litzia Lino (born 1957) more often than Plaintiff and other servers on the Loyalty List (Def.'s 56.1 ¶¶ 13, 22.)*fn3

  Plaintiff admits that from September 2001 through September 2002, Molina received no disciplinary warnings; Soto was disciplined on a single occasion for failing to return his uniform at Page 5 the conclusion of his shift; and Lino was disciplined once for arriving late to work for two of her shifts. (Id. ¶¶ 24-26.) Plaintiff admits, further, that the events of September 11, 2001, resulted in a reduction in the number of Hotel banquets in Chicago in late 2001. (Id. ¶ 27.) He nevertheless worked at 11 functions in September 2001, more than nine other servers on the Loyalty List, including Litzia Lino and five other younger on-call servers. (Id. ¶¶ 13, 28-29.) In the last three months of 2001, after Grob became involved in scheduling, Ballatore was assigned to work at only 12 more functions, for a total of 23. Of the 12 other servers on the Loyalty List, three (Molina, Soto, and Juan Azpeitia, born 1952) had greater totals for the last four months of 2001, and four (Molina, Soto, Azpeitia, and Lino) were assigned more frequently than Ballatore in the last three months. (Pltf.'s 56.1 Response ¶ 31; Pltf.'s 56.1 ¶¶ 16-19.)*fn4

  Ballatore filed a charge of age discrimination against the Fairmont on November 26, 2001, He contends that after he filed his charge, he received a greater number of banquet work assignments in December 2001. (Pltf.'s 56.1 ¶ 32.) From January through September 2002, moreover, Molina, Soto, and Lino were the only on-call servers on the Loyalty List who earned more than Ballatore did. (Id. ¶ 13.)

  Beginning in February 2002, Grob started to issue formal discipline to Ballatore. On February 16, 2002, Grob gave Ballatore a verbal warning for taking an unauthorized break — specifically, after delivering a linen cart to the Hotel's laundry room, Ballatore took an unscheduled cigarette break in the Hotel's designated smoking room. (Pltf.'s 56.1 Response ¶¶ 39-40.) Also Page 6 on February 16, 2002, Grob issued Ballatore a verbal warning for an incident a week earlier, when Ballatore admittedly took a smoking break in a supply closet just off the International Ballroom, where smoking is prohibited by Hotel policy. (Def.'s 56.1 ¶¶ 42-43.) On July 20, 2002, Walker issued Ballatore a final warning after two guests informed Walker that Ballatore had placed a plate on top of one guest's hands, had banged into another guest and into their chairs, and had been rude and pushy. (Id. ¶¶ 45-46.) Ballatore denies he engaged in such conduct, but does not deny that the complaints were made. (Pltf.'s 56.1 Response ¶¶ 45-46.) Nine days later, on July 29, 2002, Walker notified Sean Billing, the Hotel's human resources manager, that Ballatore had left his scheduled function early without completing his work or receiving permission to leave. (Id. ¶ 50.) On July 31, 2002, Walker issued Ballatore another verbal warning when Ballatore, along with four other servers, failed to return his tie and vest at the end of his shift, as required by Hotel policy. (Id. ¶ 48.)

  On August 1, 2002, Sean Billing met with Ballatore to discuss the Hotel's performance expectations. (Id. ¶ 51.) Billing reviewed Ballatore's recent discipline with him and reminded him that he needed to have a manager's permission to take a break or leave a work assignment. (Id. ¶ 52.) In a letter dated August 2, 2002, Billing confirmed the discussion and warned Ballatore that his performance must improve. (Id. ¶ 53.) Another incident nevertheless occurred just a few weeks later on September 20, 2002. At 9:30 that evening, near the end of a dinner, Ballatore asked banquet manager Myers for permission to take a cigarette break. As a few guests (according to Ballatore, about a dozen) still remained in the dining room, Myers refused. (Id. ¶¶ 54-56; Pltf.'s 56.1 ¶ 33.) Ballatore, who believed his request was "not unreasonable given the circumstances" (Pltf.'s 56.1 Response ¶ 54), told Myers he was going on a break despite Myers' refusal. (Def.'s 56.1 ¶ 57.) Myers conferred with Walker about Ballatore's conduct, and both managers agreed that Ballatore should be sent home. (Id. ¶ 59.) Walker took Ballatore's tie and Page 7 vest and told him not to report for his previously scheduled shifts on September 21 and 22. (Id. ¶ 60.)

  Neither Walker nor Myers had the authority to terminate Ballatore; instead, Walker described the incident in an e-mail message to Billing and Grob, and told Ballatore to call the Hotel's human resources department the following Monday. (Id. ¶¶ 61, 62.) A few days later, Grob telephoned Ballatore to schedule him for another function, but Ballatore responded by saying, "I can not perform my duty. . . . They just picking on me too much, upset me. I just can not do it.' (Id. ¶ 63; Ballatore Dep., Exhibit C to Def.'s 56.1, at 38-39.) Grob asked Ballatore to put his resignation in a letter to Sean Billing. (Id. ¶ 64.)

  Following his conversation with Ballatore, Grob advised Billing that Ballatore had resigned. (Id. ¶ 65.) In a letter to Ballatore dated October 18, 2002, Billing stated:
[Till Grob] informed me that in a telephone conversation of September 24, 2002 you indicated to him that you would no longer be performing the duties of an on-call waiter at the Fairmont Hotel. He also told me that he had asked you to formally resign in writing and/or call me directly to indicate your intentions.
(Billing Letter, Exhibit 8 to Tab H to Def.'s 56.1.) Billing's letter included his phone number and concluded by warning Ballatore that if he did not communicate with the Hotel by October 25, "we shall consider that you have resigned. . . ." Id.; Def.'s 56.1 ¶¶ 66, 67.) When he received Billing's letter, Ballatore called Billing and told him he was unhappy about being denied a break on his last day of work and could no longer perform his duties for the Fairmont. (Def.'s 56.1 ¶ 68; Ballatore Dep., Exhibit C to Def.'s 56.1, at 45.) Ballatore confirmed that he had resigned because, ...

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