Waitress’s Hostile Work Environment Sexual Harassment Claim, Based on Alleged Conduct by Hotel Guest, Not Imputed to Marriott

In Ball v. Marriott International, Inc., No. 19-cv-10593 (LJL), 2022 WL 4133207 (S.D.N.Y. Sept. 12, 2022), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s hostile work sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

This decision is instructive as to how courts address the scenario in which the alleged harasser is not an employee of the employer, but rather its customer or client (in this case, hotel guests).

The court summarized the “black letter” law that, “where the alleged harassers in a hostile work environment claim are non-employees, an employer will be held liable only for its own negligence, and the plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” [Cleaned up.]

Applying the law, the court explained:

Here, no reasonable jury could conclude that the offending customers’ conduct may be imputed to Marriott. The undisputed evidence shows that Marriott’s response to the offending customers was timely and appropriate in light of the circumstances, and that its own negligence did not permit or facilitate their discriminatory conduct. There is no evidence that any of the three incidents at issue involved a repeat customer. The case does not involve a circumstance where an employer, aware of a customer’s prior discriminatory behavior, nonetheless permits him to return. The three incidents—one of them separate from the others by eleven months and the other two occurring in close proximity—involved different customers. In response to each of the three events that may be considered for the hostile work environment claim—the October 18, 2016 incident, the September 10, 2017 incident, or the September 18, 2017 incident—Marriott took immediate action and provided an avenue by which Ball could lodge complaints about the conduct of customers. After a customer grabbed her face on October 18, 2016, Fish, Ball’s supervisor, stood between Ball and the customer, blocking the customer from coming into contact with Ball, Dkt. No. 68 ¶ 20; reported the customer’s conduct to a security manager, who then came to the bar, where the incident occurred, id. ¶ 23; and emailed his supervisor to report on the relevant events, id. ¶ 24. Before the security manager arrived at the bar and would have been able to remove the customer, the customer had already left. Id. ¶ 23. The following day, Ball met with the Human Resources Director to discuss the incident, id. ¶ 28; in addition, the customer was checking out the following day, and, as a result of her complaint, Ball was informed that she would not have to serve the customer—who was a guest at the Hotel—again, id. ¶ 30. Marriott’s response to the October 2016 incident was thus immediate and forward-looking in that staff ensured the customer would not again make contact with Ball and that Ball would not have to interact with him for the very short remainder of his stay, and the undisputed evidence shows that Marriott provided a system for registering complaints and then responded to the complaints. See Leroy, 36 F.4th at 476. Ball has provided no support for the proposition that Marriott was required to do more. See also Flower v. Mayfair Joint Venture, 2000 WL 272187, at *9 (S.D.N.Y. Mar. 13, 2000) (granting summary judgment to defendant where hotel did not ban guest after alleged assault in part because “[p]laintiff cite[d] no authority for her proposition that Title VII requires her employer to ban a customer from its premises”).

Marriott’s responses to the September 2017 events were similarly timely and appropriate and devoid of any evidence of negligence. On September 10, 2017, when Ball heard male customers cough into their hands the word “pussy” when she walked by the table and was poked in the chest by one of the patrons, she asked the bartender to call security, and security came. Dkt. No. 68 ¶ 31–34. In response to Ball’s concerns, the security officer told Ball, “I got your back.” Id. ¶ 34. Although the security officer did not stay, the customers soon thereafter paid their checks and left without further incident. Id. ¶ 35. Again, Marriott timely provided a response in sending a security guard to check on Ball after the incident. Marriott also provided a means to complain about the third-party conduct and offered a response to the complaint: the next day, Ball sent an email to Cohen and Davis and then met with them that same day. Id. ¶ 36–37. At this meeting, Cohen offered to discuss the matter with Ball’s interim manager, but Ball declined and told her she did not want that. Id. ¶ 38. On this record, where Plaintiff herself did not press the complaint and the customers left and there is no evidence that they returned, no reasonable juror could find that Marriott acted unreasonably in response to the conduct or that it was Marriott’s negligence that permitted or facilitated the discriminatory conduct.

Nor could a reasonable juror find that Marriott’s negligence facilitated or permitted the harassment Ball faced on September 18, 2017 or that Marriott acted unreasonably in response to it. In response to the September 18, 2017 incident, a member of Marriott’s security staff encouraged Ball to write an incident report, id. ¶ 64, immediately alerted the Security Manager of the incident, id. ¶ 66, and had Ball write her statement down on an “Associate Statement” form, id. ¶ 68. The Security Manager reported to where Ball was and asked Ball if she wanted to go to the hospital, but Ball declined. Id. ¶ 67. Ball was permitted to leave work early, id. ¶ 69, and Marriott worked with Ball to help Ball access FMLA leave in the days following the incident, id. ¶ 86. In the immediate aftermath of the incident, Ball did not ask to have the customer removed and the customer—who was picking up his check at the time—in fact departed. Following the incident, Marriott collected statements from various staff members and reviewed video to investigate the incident in more detail; provided this video and a security report to Ball’s union representative; and convened a meeting with Ball, the Hotel Manager, the Human Resources Director, and Ball’s union representative. Id. ¶¶ 70, 86, 88–89. Marriott also opened an investigation in their “Ethics Point” system. Id. ¶ 96. Ball may not agree with all of the conclusions reached during that investigation and, in particular, may not agree with the bartender that the incident involved an accidental touching, but Marriott was not required to agree with Ball and was permitted to reach its own conclusions based on its review of the evidence and its viewing of the video. In any event, in response to the incident, Marriott installed “panic buttons” to allow associates to quickly call security. Id. ¶ 99. Ball quibbles that the buttons do not work, but she admitted in her Complaint that at least one button was operational at the time she filed the Complaint, Dkt. No. 1 ¶ 19, and in any event, she does not dispute Marriott’s bona fides in attempting to address the situation. In the years since this incident, Ball has not been subject to any harassment on the job with Marriott nor is she aware of anyone else who has experienced harassment on the job. Dkt. No. 68 ¶¶ 100–101.

These actions belie Ball’s assertion that Marriott “failed to take any response to these complaints” and thus acted unreasonably. Dkt. No. 70 at 15. To the contrary, in each of the incidents at issue, Marriott promptly responded to the situation and then met with Ball to address her complaints and offered solutions to avoid similar situations going forward. A response may be reasonable even if an employer could have taken more drastic action. See Leroy, 36 F.4th at 476 (explaining that the complaint did not indicate that a response taken to discriminatory conduct by a passenger was insufficient even though the plaintiff offered an alternative remedy of ejecting the passenger from defendant’s property). Ball complaints that Marriott is unable to completely “prevent the further sexual harassment of Ball by customers.” Dkt. No. 70 at 15. But that is not the test. The operator of a bar is not strictly liable under Title VII for every crude, or even sexist, remark made by a customer. The customer’s conduct is imputable to Marriott only if it is able to exercise a high degree of control and, even then, only if it is negligent in failing to prevent the discriminatory conduct. There is no evidence that Marriott “encourage[d], condone[d], or approve[d] of the customer’s conduct, that its negligence was what permitted the customers’ rogue discriminatory conduct, or that it failed to timely and appropriately address Ball’s complaints.

[Cleaned up.]

Accordingly, the court concluded that under the undisputed facts, Marriott cannot be held liable for plaintiff’s hostile work environment claim, and awarded it summary judgment.

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