AMAL SLAITANE v. SBARRO

Full title: AMAL SLAITANE, Plaintiff, -against- SBARRO, INC., Defendant FARA FALL…

Court: United States District Court, S.D. New York

Date published: Jun 2, 2004

03 Civ. 5503 (AJP) 03 Civ. 5504 (AJP) (S.D.N.Y. Jun. 2, 2004)

Opinion

03 Civ. 5503 (AJP), 03 Civ. 5504 (AJP)

June 2, 2004

OPINION AND ORDER

ANDREW PECK, Magistrate Judge

The pro se plaintiffs in these two consolidated actions sue defendant Sbarro, Inc. for employment discrimination and retaliation.¹ Plaintiff in 03 Civ. 5503, Ms. Amal Slaitane, alleges that she was subjected to sexual harassment and retaliated against for complaining internally about the harassment. Plaintiff in 03 Civ. 5504, Mr. Fara Fall, alleges that Sbarro terminated his employment on account of his race and in retaliation for his support of Ms. Slaitane, with whom he lives. (See Dkt. No. 16: Briton Aff. Ex. 21: Slaitane Dep. at 24-25.)

1 The Court consolidated these actions with the parties' consent on October 16, 2003. (Dkt. No. 9.) Docket entries refer to the entries in 03 Civ. 5503 unless otherwise indicated.

Presently before the Court is Sbarro's summary judgment motion. (Dkt. Nos. 15-22, 25-26, 33.) The parties have consented to disposition of these actions by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10; 03 Civ. 5504: Dkt. Nos. 8-9.) For the reasons discussed below the Court grants summary judgment for Sbarro dismissing Fall's action (03 Civ. 5504), grants summary judgment for Sbarro on Slaitane's November 2002 retaliatory termination claim, and denies summary judgment for Sbarro on Slaitane's pre-August 2002 sexual harassment discrimination claim (03 Civ. 5503), which will proceed to trial.

FACTS

Plaintiffs Slaitane and Fall

Ms. Slaitane was born in Morocco and employed by Sbarro, primarily as a cashier, from June 2001 to November 22, 2002. (Dkt. No. 21: Sbarro 56.1 Stmt. ¶¶ 8-9; Dkt. No. 16: Briton Aff. Ex. 21: Slaitane Dep. at 8-12.) Ms. Slaitane initially worked at Sbarro's 47th Street location (701 7th Avenue, known within Sbarro as Unit 320), then at stores at 34th Street and 33rd Street. (Sbarro 56.1 Stmt. ¶ 10; Slaitane Dep. at 10, 17-22; Dkt. No. 20: Hubbard Aff. ¶ 4.) The general manager of the 33rd Street store was Mr. Samouly (also known as Fahti), and when he moved to Unit 320 as general manager, he offered to have Ms. Slaitane move with him and she agreed, returning to the 47th Street store in June 2002. (Sbarro 56.1 Stmt. ¶¶ 10-13; Slaitane Dep. at 10, 17-22.)

Mr. Fall is a black male who was born outside the United States and came to the United States in April 1999. (Sbarro 56.1 Stmt. ¶ 14; Briton Aff. Ex. 22: Fall Dep. at 5-6.) Fall was employed by Sbarro, primarily as a pizza man at Unit 320, from May 1999 until December 16, 2002. (Sbarro 56.1 Stmt. ¶ 15; Fall Dep. at 6, 18-19.) Fall began working for Sbarro under the name and documentation of a friend of his, Babacar Geoye. (Sbarro 56.1 Stmt. ¶ 16; Fall Dep. at 6-10; Briton Aff. Ex. 7: "Babacar Geoye" I-9; Dkt. No. 32: Slaitane/Fall Aff. ¶ 9.) When Fall was able to get working papers in his own name, he told the store's general manager, supplied his I-9 work permit, and worked for Sbarro under his true identity. (Sbarro 56.1 Stmt. ¶ 17; Fall Dep. at 10-13; Briton Aff. Ex. 8: Fall INS Employment Eligibility Verification; Slaitane/Fall Aff. ¶ 10.)

Slaitane and Fall met while working for Sbarro in around June 2001. (Sbarro 56.1 Stmt. 18; Fall Dep. at 19.) Slaitane began living with Fall as "roommates" after she returned to the 47th Street store in June 2002, then became his "girlfriend," and in August 2003 Slaitane gave birth to a baby fathered by Fall. (Sbarro 56.1 Stmt. ¶¶ 19-20; Fall Dep. at 20-21; Slaitane Dep. at 24-25, 109; Briton Aff. Exs. 1 2, ¶ 1: Slaitane Fall's Complaints, giving same address for both.)

Defendant Sbarro

As is well-known to New Yorkers, Sbarro operates a chain of Italian restaurants. (Sbarro 56.1 Stmt. ¶ 21; Dkt. No. 20: Hubbard Aff. ¶ 2.) In addition to Unit 320 at 47th Street, Sbarro has a restaurant at 49th Street (Unit 897), where it also has local management offices, and numerous other restaurant locations in Manhattan. (Sbarro 56.1 Stmt. ¶ 21; Hubbard Aff. ¶ 2.) The general manager of Unit 320, and general managers from other Sbarro locations, report to a Regional Manager, in this case Mr. Souhaile Sara. (Sbarro 56.1 Stmt. ¶ 22; Hubbard Aff. ¶ 3; Slaitane Dep. at 51-52.)

Sbarro's Human Resources Department is responsible for, among other things, administering employment policies including EEO policies. (Sbarro 56.1 Stmt. ¶ 23; Hubbard Aff. ¶ 5.) Sbarro posts its EEO, harassment and problem resolution policies in the stores, and in addition Sbarro gives employees an Employee Handbook explaining its EEO and complaint policies. (Sbarro 56.1 Stmt. ¶¶ 24-26; Hubbard Aff. ¶¶ 6-7; Dkt. No. 22: Samouly Aff. ¶ 2; Briton Aff. Ex. 9: "Working at Sbarro: Restaurant Employees' Guide to Human Resource Policies, Rules Guidelines"; Slaitane/Fall Aff. ¶ 11 Ex. 3.)

Slaltane's Complaints of Sexual Harassment

On August 12, 2002, according to Sbarro, assistant manager Souraine Miticam criticized Slaitane for not being responsive to customers and for ignoring him, and also had store manager Fahti (aka Samouly) speak to her. (Dkt. No. 21: Sbarro 56.1 Stmt. ¶¶ 31-33; Dkt. No. 18: Miticam Aff. ¶¶ 3-5; Dkt. No. 16: Briton Aff. Ex. 13: 8/12/02 Warning Notice; Dkt. No. 22: Samouly Aff. ¶ 6.) Fahti told her she was insubordinate and that as a result he was cutting her hours fortwodays. (Sbarro 56.1 Stmt. ¶ 34; Samouly Aff. ¶ 6.) Slaitane denies Sbarro's version of events. (Slaitane/Fall Aff. ¶ 16.)

Shortly after August 12, 2002, Slaitane complained to Sbarro management; Sbarro's Human Resources Director Bill Hubbard returned Slaitane's call and arranged for her Regional Manager, Souhaile Sara, to met with her. (Sbarro 56.1 Stmt. ¶ 35; Dkt. No. 20: Hubbard Aff. ¶ 19; Dkt. No. 19: Sara Aff. ¶¶ 1-2; Slaitane Dep. at 52-53.) Slaitane told Sara that she had been sexually harassed by Fahti. (Sbarro 56.1 Stmt. ¶ 36; Slaitane Dep. at 53-55.) Sara gave Slaitane a "Harassment Complaint" form to complete, which Slaitane did, as follows:

I'm Amal Slaitane. I'm working in store Sbarro 32 [320] 701 7th Ave a year ago between before and now. The problem is too bad, cause the store is big, must big [unclear]. And general manager the problem is the manager want make a relationship with me and sometimes he call me in the office and ask me for give him kiss. Give him appointment out with him. And every time I can't give him answer because he is my manager. I'm scared give my fire [says she meant "He fire me"] and he ask me for to live with him together and I can make relationship with him and from 4 August I gave him answer no he begin make cut my hours and he told, sorry for the word [bitch] in Arabic. And this week I must work 5 days and yesterday I went check my schedule I see 3 days. He cut my schedule. I'm working good. I respect my schedule because I love Sbarro and I love 47 701 over there. I feeding my family. I want help please for stay in 47 701. And you must give him transfer the general manager and every day he is coming working [4] hours and he don't punch out.²

2 According to Slaitane, when Sara read the last sentence, he responded that "We can always find cashiers, but not general managers." (Slaitane Dep. at 58-60; see also Slaitane/Fall Aff. 119-)

(Sbarro 56.1 Stmt. ¶ 38, quoting Briton Aff. Ex. 14 as explained by Slaitane Dep. at 56-58, 60; Slaitane/Fall Aff. ¶ 17.) Slaitane also wrote that Fahti "also gave [her] gift . . . $50 and hours, shoes, [phone] card." (Sbarro 56.1 Stmt. ¶ 39, quoting Briton Aff. Ex. 15, as explained by Slaitane Dep. at 60-61.)

Sara told Slaitane to work at the 49th Street restaurant, Unit 897, while the matter was investigated. (Sbarro 56.1 Stmt. ¶ 40; Sara Aff. ¶ 2; Slaitane Dep. at 54-55.)

According to Sbarro, on August 17, 2002, Slaitane gave Sara a handwritten note:

I'm Amal Slaitane. I want to [write] of [th]e story between Fathi [and] my end everything is ok. [And] now I'm working in 49 [Street] Mama Sbarros and I have no problems [with] Fathi.

(Briton Aff. Ex. 16; Sbarro 56.1 Stmt. ¶ 41; Sara Aff. ¶ 3; Slaitane Dep. at 61-62.) According to Slaitane, however, she wrote this one month after the investigation in order to return to work at 47th Street because she was not getting enough hours to work at 49th Street. (Slaitane Dep. at 62-63; Slaitane/Fall Aff. ¶ 18; see also page 8 below.)

Slaitane worked at the 49th Street Sbarro's until the investigation had concluded (discussed below). (Sbarro 56.1 Stmt. ¶ 42; Sara Aff. ¶ 4.)

Sara and Hubbard began their investigation into Slaitane's complaint on August 22, 2002 by having a second meeting with Slaitane and asking her to explain what had happened with Fahti. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 64.) Slaitane explained to them that Fahti had given her gifts, asked her for a kiss and to go out with him, and asked her to come to his home, and that when she finally rejected him, he had cut her hours. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 64-65.) Sara and Hubbard told her that they would speak to other workers to investigate her complaint. (Sbarro 56.1 Stmt. ¶ 43; Hubbard Aff. ¶ 10; Slaitane Dep. at 65.) Hubbard took notes of the conversation, including the above and also Slaitane's comment that she would not have done anything if her hours had not been cut; that she prefers the 47th Street store to 49th Street; and that she would feel comfortable going back to 47th Street, even if Fahti was still general manager. (Sbarro 56.1 Stmt. ¶ 44; Hubbard Aff. ¶ 11 Ex. 41.)

Following this meeting, Hubbard and Sara interviewed some of the witnesses Slaitane had identified; those employees generally said Fahti was a good manager while Slaitane was not a good employee and was rude with customers. (Sbarro 56.1 Stmt. ¶ 45; Hubbard Aff. ¶ 12 Exs. 42-47.) Only Fall supported Slaitane, explaining that he personally had never heard Fahti ask Slaitane out but that he knew Slaitane had a problem with Fahti who had reduced her hours. (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) Ex. 45.) Fall told them that when Slaitane told him that Fahti had asked her why she was "`going out with the black guy,'" meaning Fall, he met with Fahti, with Miticam and Angelo Sahadun present, and told Fahti not to refer to him as a "`black guy.'" (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) Ex. 45.) Fall said that Fahti "confessed" that he had asked Slaitane out and that he was going to cut her hours and fire her. (Sbarro 56.1 Stmt. ¶ 45(c); Hubbard Aff. ¶ 12(c) Ex. 45.) When Hubbard and Sara interviewed Miticam and Sahadun, however, they denied any such meeting with Fall and Fahti. (Sbarro 56.1 Stmt. ¶ 45(e)-(f); Hubbard Aff. ¶ 12(e)-(f) Exs. 46-47.)

Hubbard and Sara met with Fahti, who acknowledged giving Slaitane small gifts because he felt sorry for her but denied trying to have a personal relationship with her. (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 Ex. 48.) To the contrary, Fahti said that when they had worked at the 33rd Street store, Slaitane had said she had nowhere to live, and asked if she could live with him, and he said no. (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 Ex. 48.) Fahti identified a witness to this conversation, who confirmed Fahti's story when Hubbard and Sara interviewed him. (Sbarro 56.1 Stmt. ¶¶ 46-47; Hubbard Aff. ¶¶ 13-14 Exs. 48-49.) Fahti explained that he had reduced Slaitane's hours because of the August 12 incident involving Miticam (described at page 4 above). (Sbarro 56.1 Stmt. ¶ 46; Hubbard Aff. ¶ 13 Ex. 48.)

After these meetings, Hubbard and Sara met with Slaitane again. (Sbarro 56.1 Stmt. ¶ 48; Hubbard Aff. ¶ 15 Ex. 50; Slaitane Dep. at 69.) Slaitane denied that there had been an August 12 performance problem and insisted that her cut in hours occurred after she told Fahti that she would not have a relationship with him, but she could not identify any other witnesses to support her complaint. (Sbarro 56.1 Stmt. ¶ 48; Hubbard Aff. ¶ 15 Ex. 50; Slaitane Dep. at 69.)

Hubbard and Sara concluded that there was insufficient evidence to determine that Fahti had sexually harassed Slaitane. (Sbarro 56.1 Stmt. ¶ 49; Hubbard Aff. ¶ 16.) They advised Fahti, however, that giving Slaitane gifts gives rise to a potential perception of impropriety or favoritism and instructed him to discontinue such conduct toward Slaitane or any other employee; Fahti agreed. (Sbarro 56.1 Stmt. ¶ 50; Hubbard Aff. ¶ 17.)

On September 4, 2002, Hubbard and Sara met with Slaitane for the third time, and advised her that the investigation was concluded and her complaint had not been corroborated. (Sbarro 56.1 Stmt. ¶ 51; Hubbard Aff. ¶ 18; Slaitane Dep. at 74-76; Slaitane/Fall Aff. ¶ 18.) According to Sbarro, Hubbard and Sara recommended that Slaitane continue at the 49th Street restaurant (Unit 897) where she had been working during the investigation, in the same position and for the same pay. (Sbarro 56.1 Stmt. ¶ 51; Hubbard Aff. ¶ 18.) Slaitane admits that they told her this, but says she did not want to stay at the 49th Street store because she was not getting enough hours to work there. (Slaitane Dep. at 74-75; Slaitane/Fall Aff. ¶ 18.) According to Sbarro, Slaitane told Hubbard and Sara that she wanted to return to the 47th Street store and that she had no concerns about returning to work for Fahti. (Sbarro 56.1 Stmt. ¶ 51; Hubbard Aff. ¶ 18.)

At the conclusion of the meeting, Hubbard and Sara presented a typed note for Slaitane to sign, stating:

I am satisfied with the resolution of my complaint dated August 16, 2002 and I am requesting to return to work at my current rate and occupation to unit #320.

I acknowledge that I was offered the opportunity to work at unit #897 at my current pay and occupation but that I declined. It is my desire to return to my original unit and work for the General Manager. At this time, I have no other concerns or issues regarding the situation and I consider the matter and my complaint satisfactorily addressed and resolved.

(Briton Aff. Ex. 17;see Hubbard Aff. ¶ 19; Sbarro 56.1 Stmt. ¶ 52; Slaitane Dep. at 75-76.) Slaitane read the note, Sara explained to her in Arabic and Slaitane signed it. (Briton Aff. Ex. 17; Slaitane Dep. at 75-76; see Hubbard Aff. ¶ 19; Sbarro 56.1 Stmt. ¶ 52.)³ Hubbard and Sara told Slaitane that if she had any problems after returning to Unit 320, she should let them know. (Sbarro 56.1 Stmt. ¶ 52; Hubbard Aff. ¶ 19; Slaitane Dep. at 76.)

3 According to Slaitane, Sara told her she could only come back to Unit 320 if she signed the note. (Slaitane Dep. at 76.) Slaitane says she was not satisfied with the resolution of the complaint but had no choice but to sign the document. (Slaitane/Fall Aff. ¶¶ 18-19.)

Slaitane returned to work at Unit 320 shortly after September 4, 2002. (Sbarro 56.1 Stmt. ¶ 53; Slaitane Dep. at 76-77.)

According to Slaitane, three weeks after she returned to work, Fahti offered to give her the key to his apartment so she could live with him. (Slaitane Dep. at 77-80.) Fahti did this only once. (Slaitane Dep. at 80.)

Slaitane's Employment Ends

According to Sbarro, on November 19, 2002, one of Slaitane's co-workers, Sherin Tawdrous, advised Miticam that she had observed Slaitane failing to ring up customer purchases and pocketing the money. (Sbarro 56.1 Stmt. ¶ 54; Miticam Aff. ¶ 6.) Slaitane denies the allegation. (Slaitane/Fall Aff. ¶ 27.) Miticam arranged for Tawdrous to inform Fahti (aka Samouly), by telephone, of the incident. (Sbarro 56.1 Stmt. ¶ 54; Miticam Aff. ¶ 6; Samouly Aff. ¶ 8 Ex. 32.) Fahti conferred with Sara, who advised him to reassign Slaitane from cashier to server until the matter could be reviewed. (Sbarro 56.1 Stmt. ¶ 55; Samouly Aff. ¶ 9.) On November 21, 2002, Fahti reassigned Slaitane to server. (Sbarro 56.1 Stmt. ¶ 56; Samouly Aff. ¶ 10 Ex. 32.)

The next day, November 22, while at work Slaitane remarked out loud, in Arabic, that "all Egyptians, men and women, are faggots." (Sbarro 56.1 Stmt. ¶ 57; Slaitane Dep. at 87.) Slaitane testified that she made the comment because she was having a problem with someone Egyptian outside of work and that she made the comment to herself. (Sbarro 56.1 Stmt. ¶ 57; Slaitane Dep. at 87, 90-92.) Tawdrous and another co-worker, both of whom are Egyptian, heard Slaitane's comment and reported it to Fahti, who also is Egyptian. (Sbarro 56.1 Stmt. ¶ 57; Samouly Aff. ¶ 11 Ex. 34; see Hubbard Aff. ¶ 21 Ex. 51.)

Fahti instructed employee Junior Holder to escort Slaitane to Fahti's office. (Sbarro 56.1 Stmt. ¶ 58; Samouly Aff. ¶ 11 Ex. 35; Slaitane Dep. at 88.) According to Sbarro, Slaitane admitted to Fahti, in Holder's presence, that she had made the remark. (Sbarro 56.1 Stmt. ¶ 58; Samouly Aff. ¶ 11 Ex. 35.) Fahti told her to go home. (Sbarro 56.1 Stmt. ¶ 58; Samouly Aff. ¶ 11 Ex. 35.) According to Slaitane, Fahti told her to go home, leave his office and the store, but did not explain why. (Sbarro 56.1 Stmt. ¶ 59; Slaitane Dep. at 88-90.)

Slaitane interpreted Fahti's "go home" comments as that she was fired, which she also specifically was told by two other Sbarro employees. (Slaitane Dep. at 94-99.) Sbarro, on the other hand, believed that Slaitane had quit when she did not report for work the next day. (Sbarro 56.1 Stmt. ¶ 61; Samouly Aff. ¶ 13.)

Slaitane's name was on the work schedule for the following week (ending December 1), which was prepared after the November 22 incident. (Sbarro56.1 Stmt. ¶ 65; Samouly Aff. ¶ 14 Ex. 38.) According to Sbarro, when Slaitane did not report for work, her name and hours were "whited out" of the next week's schedule. (Sbarro 56.1 Stmt. ¶ 65; Samouly Aff. ¶ 14 Ex. 38.) In contrast, Slaitane said that when she saw that schedule with her name crossed out on Monday November 25 when she went to pick up her check, it indicated to her that she had been fired. (Slaitane Dep. at 95-97; see also Slaitane/Fall Aff. Ex. 1.)

Slaitane spoke with Hubbard about the November 22 incident, and Hubbard told her that she was not fired and he would find out what was going on. (Slaitane Dep. at 80-81; Sbarro 56.1 Stmt. ¶ 62; Hubbard Aff. ¶ 22.) Slaitane had not spoken to Sara or Hubbard from the time she went back to work at Unit 320 until after the November 22 incident. (Slaitane Dep. at 81-83; Sbarro 56.1 Stmt. ¶ 53.) According to Hubbard, Slaitane admitted that she made the comments about Egyptians, and Hubbard told her that was serious and might lead to her termination. (Sbarro 56.1 Stmt. ¶ 63; Hubbard Aff. ¶ 22.) After that, Slaitane never attempted to contact Hubbard, Sara or anyone else in Sbarro management or Human Resources. (Sbarro 56.1 Stmt. ¶ 64; Hubbard Aff. ¶ 23.) When Slaitane did not return to work, Hubbard and Sara concluded that Slaitane had quit. (Sbarro 56.1 Stmt. ¶ 66; Hubbard Aff. ¶ 24.) Hubbard attempted to call Slaitane but was unable to reach her. (Sbarro 56.1 Stmt. ¶ 66; Hubbard Aff. ¶ 24.)

On November 6, 2002, Slaitane filed an EEOC charge alleging sexual harassment by Fahti. (Briton Aff. Exs. 5 8; Sbarro 56.1 Stmt. ¶ 72.) Sbarro first received notice of the EEOC complaint after Slaitane's employment with Sbarro had ended. (Sbarro 56.1 Stmt. ¶ 73; Hubbard Aff. ¶ 30; see Slaitane Dep. at 101 (she did not discuss her EEOC charge with Sbarro while working there).)

Fall's Employment is Terminated

When Fahti became General Manager of Unit 320, he reminded employees whose work permits would be expiring to have their permits renewed so they could continue working without interruption. (Sbarro 56.1 Stmt. ¶¶ 74-75; Samouly Aff. ¶¶ 15-17.) In mid-December 2002, Sara "politely" asked Fall about the status of his work papers, and Fall said he was going to renew them. (Sbarro 56.1 Stmt. ¶ 76; Fall Dep. at 62.) Fall's work authorization expired on December 14, 2002. (Sbarro 56.1 Stmt. ¶ 74; Briton Aff. Ex. 18; FallDep. at 18.) On December 16, after his work permit expired, Fall went to the INS to apply for an extension. (Sbarro 56.1 Stmt. ¶¶ 77-78; Briton Aff. Ex. 19; Fall Dep. at 62-66.) Fall received an appointment for March 2003, and showed that paper to Sara on or about December 16, 2002. (Sbarro 56.1 Stmt. ¶ 77; Briton Aff. Ex. 19; Fall Dep. at 62-66.) Sara consulted with Hubbard, who in turn consulted legal counsel. (Sbarro 56.1 Stmt. 1 80; Sara Aff. ¶ 5; Hubbard Aff. ¶ 31.)

On December 20, 2002, Sara gave Fall a letter terminating his employment for lack of work papers:

As we discussed, your Employment Authorization Form which enabled you to work in the United States, expired on December 14, 2002. We are glad that you have applied to renew your Work Authorization on December 16, 2002. However, based on INS regulations, since you do not have current authorization or any approved documents that you have provided to Sbarro's, Inc. that permit you to legally work in the US at present, the company has no alternative but to place you on Administrative Leave effective today.

We will be happy to return you to active status as soon as you provide us with valid documentation or as soon as you [sic] application is approved.

We look forward to your return.

(Briton Aff. Ex. 20; Sbarro 56.1 Stmt. ¶ 82; Fall Dep. at 67-69; Slaitane/Fall Aff. ¶ 22.) Falls' last day of work was December 20, 2002, the day of this letter. (Sbarro 6.1 Stmt. ¶ 83; Sara Aff. ¶ 6.) Although Fall's work authorization was renewed in March 2003, he has not sought reemployment with Sbarro. (Sbarro 56.1 Stmt. 1 84; Sara Aff. ¶ 6; Fall Dep. at 18.)

Fall contends that he was discriminated against because other Sbarro employees were allowed to work without valid work papers. (Sbarro 56.1 Stmt. ¶ 85; Fall Dep. at 70-71.) Fall identified four such persons. (See Sbarro 56.1 Stmt. ¶ 85; Dkt. No. 27: 1/12/04 Conf. Tr. at 10-11.) Two are still employed by Sbarro's with valid work permits, while the employment of the other two was terminated in November 2002 and March 2003. (Sbarro 56.1 Stmt. ¶ 85; Hubbard Aff. ¶ 32 Ex. 56.) In addition to Fall, several other employees in Sara's region were terminated at or around the same time for expired work authorizations. (Sbarro 56.1 Stmt. ¶ 86; Hubbard Aff. ¶ 33 Ex. 57.)

Fall filed an EEOC complaint sometime after Slaitane's employment terminated but befoe Fall was fired, alleging race discrimination and retaliation. (See Briton Aff. Ex. 5.) After he was fired, on January 6, 2003, Fall filed a second EEOC charge, alleging race discrimination and retaliation for his earlier EEOC charge. (Briton Aff. Ex. 5.)

ANALYSIS

I. LEGAL PRINCIPLES GOVERNING TITLE VII CASES A. Summary Judgment Standards in Employment Discrimination Cases ⁴

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett. 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied, 124 S.Ct. 53 (2003);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment-here, defendant. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970);Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof.See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g.,Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.⁵ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See,e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied. 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM. 43 F.3d at 37.

5 See also, e.g., Chambers v. TRM. 43 F.3d at 36; Gallo v. Prudential. 22 F.3d at 1223.

"The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" such as Slaitane and Fall, and that "pro se parties are `to be given special latitude on summary judgment motions.'" Salahuddin v. Coughlin. 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Rakoff, DJ. Peck, M.J.).⁶ "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).⁷

6 Accord, e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *9: Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *6 (S.D.N.Y. Apr. 23, 2001) (Peck, M.J.); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *5 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Cub v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.);Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 818 (Kaplan, D.J. Peck, M.J.): see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").

7 See also, e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *9: Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *7; Fulmore v. Mamis, 2001 WL 417119 at *6; Freeman v. Strack, 2000 WL 1459782 at *5;Culp v. Koenigsmann, 2000 WL 995495 at *5; Carbonell v. Goord. 2000 WL 760751 at *5.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs. 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9.11 (2d Cir. 1986). cert. denied, 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby. 477 U.S. at 248. 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby. 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential. 22 F.3d at 1224.⁸ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential. 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error."Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. H K Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at * 1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Van Zant v. KLM Royal Dutch Airlines. 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").⁹ Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.

8 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"): McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardoza v. Healthfirst Inc., 210 F. Supp.2d 224, 227 (S.D.N.Y. 1999); see also, e.g., Chambers v. TRM. 43 F.3d at 40.

9 See also, e.g., Budde v. H K Distrib. Co., 2000 WL 900204 at * 1; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

B. Legal Principles Governing Title VII Actions ¹⁰

10 For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially similar to that in this entire section of this Opinion,see, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at * 14-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Viruet v. Citizen Advice Bureau. 01 Civ. 4594, 2002 WL 1880731 at * 10-13 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.); Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *20-22) (S.D.N.Y. July 29, 2002) (Peck, M.J.); report rec. adopted, 235 F. Supp.2d 291 (S.D.N.Y. 2002) (Berman, D.J.); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *7-10 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.); Williams v. NYC Dep't of Sanitation. 00 Civ. 7371, 2001 WL 1154627 at *9-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *10 (S.D.N.Y. May 9, 2001) (Peck, M.J.);Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at * 11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models. Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.),aff'd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001). cert. denied, 537 U.S. 848, 123 S.Ct. 189 (2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck. M.J.): Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton. 91 Civ. 0918, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck. M.J.X report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981);see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097. 2106 (2000): McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).¹¹ Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks. 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. at 254. 101 S.Ct. at 1094).¹²

11 See also, e.g., Raytheon Co. v. Hernandez. 124 S.Ct. 513, 517 n. 3 (2003); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); Mandell v. County of Suffolk. 316 F.3d 368, 377-78 (2d Cir. 2003); Mario v. P C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); Schnabel v. Abramson. 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models. Inc., 149 F.3d 148, 152 (2d Cir. 1998). abrogated on other grounds by. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

12 See also, e.g., Mandell v. County of Suffolk, 316 F.3d at 380;Mario v. P C Food Mkts., Inc., 313 F.3d at 767; Scaria v. Rubin. 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106; McDonnell Douglas Corp. v. Green. 411 U.S. at 802, 93 So. Ct. at 1824.¹³ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S.Ct. at 2106.¹⁴

13 See also, e.g., Raytheon Co. v. Hernandez, 124 S.Ct. at 517 n. 3;O'Connor v. Consolidated Coin. 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's Honor Ctr. v. Hicks. 509 U.S. at 506-07.113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Mandell v. County of Suffolk. 316 F.3d at 380; Mario v. P C Food Mkts., Inc., 313 F.3d at 767; Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models. Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Chambers v. TRM, 43 F.3d at 38.

14 See also, e.g., St. Mary's Honor Ctr. v. Hicks. 509 U.S. at 507, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096: Terry v. Ashcroft, 336 F.3d at 144 n. 17: Austin v. Ford Models. Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106.¹⁵ "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. at 255 n. 10. 101 S.Ct. at 1095 n. 10).

15 See also, e.g., Raytheon Co. v. Hernandez, 124 S.Ct. at 517 n. 3;St. Mary's Honor Ctr. v. Hicks. 509 U.S. at 510, 113 S.Ct. at 2749; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; Mandell v. County of Suffolk, 316 F.3d at 380-81; Mario v. P C Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of theMcDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson. 232 F.3d at 90 (emphasis added).¹⁶

16 See also, e.g., Rose v. NYP Holdings. Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied. 122 So. Ct. 460 (2001); James v. New York Racing Ass'n. 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. 772 Park Ave. Corp., 00 Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiff's establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26.2001): Tanay v. Saint Barnabas Hosp., 99 Civ. 9215. 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson. Wvatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied. 156 F. Supp.2d 270 (S.D.N.Y. May 18.2001). aff'd in part, appeal dismissed on other grounds. No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.¹⁷ II. SLAITANE'S CLAIMS

17 E.g.,Molin v. Shapiro. No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003); Silverman v. City of New York. No. 02-9048, 64 Fed. Appx. 799, 801, 2003 WL 1970472 at * 1 (2d Cir. Apr. 23, 2003):Tarshis v. Riese Org., No. 02-7570, 66 Fed. Appx. 238, 240, 2003 WL 1600154 at * 1-2 (2d Cir. Mar. 27, 2003); Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d at 470; James v. New York Racing Ass'n. 233 F.3d at 157; Slatky v. Healthfirst. Inc., 02 Civ. 5182, 2003 WL 22705123 at *6 (S.D.N.Y. Nov. 17, 2003); Kulkarni v. City Univ. of New York. 01 Civ. 10628, 2002 WL 31886639 at *9 (S.D.N.Y. Dec. 27, 2002);Williams v. NYC Dep't of Sanitation. 2001 WL 1154627 at * 12-19; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *12; Weiser v. Forest Pharm., Inc., 2001 WL 293951 at *8: Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson. Wvatt Co., 136 F. Supp.2d at 249-50; Cobian v. New York City. 2000 WL 1782744 at * 13: Austin v. Ford Models. Inc., 2000 WL 1752966 at * 12-15; Trezza v. Dilenschneider Group. 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000);Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000), aff'd, No. 00-9531, 51 Fed. Appx. 901, 2002 WL 31664452 (2d Cir. Nov. 20, 2002);Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D. Conn. 2000);Ekwegablu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000): Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

Slaitane's claims fall into two time periods: (1) alleged sexual harassment by Fahti prior to Slaitane's August 12, 2002 complaint (see pages 4-5 above), and (2) alleged sexual harassment and retaliatory termination in late November 2002 (see pages 9-11 above).

A. Sbarro Is Denied Summary Judgment on Slaitane's pre-August 12, 2002 Hostile Environment and Quid Pro Quo Sexual Harassment Claim

Slaitane's claim that her supervisor, Fahti, asked her out on dates, tried to kiss her and suggested they live together is treated by Sbarro's brief as a "hostile work environment" claim. (Dkt. No. 17: Sbarro Br. at 4-8.) Cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742. 751. 118 S.Ct. 2257, 2264 (1998) ("Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.").

To establish a hostile work environment claim, Slaitane must show that Fahti's conduct was:

"sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (quoting Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)) (internal brackets and quotation marks omitted). The conduct must be intimidating, hostile, or offensive, with discriminatory intimidation, ridicule, and insult permeating the workplace. See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). All of the circumstances must be considered; a reasonable person would have to find the environment hostile or abusive, and the victim must have subjectively so perceived it. See Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71 (1993): Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995).

Gallagher v. Delaney, 139 F.3d 338, 346-47 (2d Cir. 1998), abrogated on other grounds by, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998); accord, e.g., Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir. 2004); Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004); Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003);Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002); Daves v. Pace Univ., No. 00-7641, 2 Fed. Appx. 204, 207, 2001 WL 99831 at * 1 (2d Cir. Feb. 5, 2001); Whidbee v. Garzarelli Food Specialties. Inc., 223 F.3d 62, 69-71 (2d Cir. 2000); Howley v. Town of Stratford. 217 F.3d 141, 153-54 (2d Cir. 2000); Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437-40 (2d Cir. 1999)¹⁸ "Conduct that is `merely offensive' and `not severe or pervasive enough to create an objectively hostile or abusive work environment'" is insufficient to establish a Title VII discrimination claim. Torres v. Pisano, 116 F.3d at 631; accord, e.g., Williams v. NYC Dep't of Sanitation, 2001 WL 1154627 at * 13: see also, e.g., Dayes v. Pace Univ., 2001 WL 99831 at * 1 (Defendant's "comments and behavior, although boorish and inappropriate, simply do not rise to the level of behavior necessary for a jury reasonably to conclude that they were sufficiently severe or pervasive to alter the condition of [plaintiff]'s employment.").

18 See also, e.g., Torres v. Pisano, 116 F.3d 625. 630 (2d Cir.),cert. denied, 522 U.S. 997. 118 So. Ct. 563 (1997); Cosgrove v. Sears. Roebuck Co., 9 F.3d 1033, 1042 (2d Cir. 1993); Viruet v. Citizen Advice Bureau. 01 Civ. 4594, 2002 WL 1880731 at *15 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.): Williams v. NYC Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at * 12-13 (S.D.N.Y. Sept. 28. 2001) (Peck. M.J.): Adeniii v. Administration for Children Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y.) (Wood, D.J. Peck M.J.), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

Isolated incidents of discriminatory comments or conduct is not sufficient to establish a hostile work environment. E.g., Faragher v. City of Boca Raton. 524 U.S. 775, 788, 118 S.Ct. 2275, 2283 (1998) ("`simple teasing,' . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'"); Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. at 370 ("`mere utterance of an . . . epithet which engenders offensive feelings in an employee,' . . . does not sufficiently affect the conditions of employment to implicate Title VII"); Feingold v. New York. 366 F.3d at 150 ("`As a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'""); Holtz v. Rockefeller Co., 258 F.3d 62, 75 (2d Cir. 2001) ("`Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.") (quoting Faragher v. City of Boca Raton. 524 U.S. 775, 788, 118 S.Ct. 2275 (1998) (alterations omitted)); Rizzo-Puccio v. College Auxiliary Servs., Inc., No. 99-9272, 216 F.3d 1073 (table), 2000 WL 777955 at *3 (2d Cir. June 14, 2000) ("[I]solated remarks or occasional episodes of harassment do not constitute a hostile environment within the meaning of Title VII."); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("As a general matter, `isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.'"), abrogated on other grounds by National R.R. Passenger Corp. v. Morgan. 536 U.S. 101, 122 S.Ct. 2061 (2002): Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at * 18 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) ( cases cited therein). "Among the factors [the courts] consider are `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes in [the] employee's work performance.'" Feingold v. New York. 366 F.3d at 150 (quoting Harris v. Forklift Sys., Inc., 510 U.S. at 23, 114 S.Ct. at 371); accord, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d at 58; Terry v. Ashcroft. 336 F.3d at 148.

Sbarro argues that Fahti's conduct was not sufficiently severe or pervasive to establish a hostile environment. (Dkt. No. 17: Sbarro Br. at 4-8.) Because Slaitane stated that Fahti's advances were repeated (although the record does not make clear how often he asked her for a date, a kiss, etc.), and because her two day suspension without pay converts the analysis from hostile environment to quid pro quo discrimination (see page 29 below), the Court declines to hold on summary judgment that pro se plaintiff Slaitane has not made out a sufficient claim to get to the jury.

Sbarro argues that even if Slaitane could survive summary judgment on whether she was subjected to a hostile work environment, Sbarro is entitled to summary judgment under the affirmative defense established by the Supreme Court in Faragher v. Boca Raton. 524 U.S. 775, 118 S.Ct. 2275 (1998), and Burlington Indus., Inc. v. Ellerth. 524 U.S. 742, 118 S.Ct. 2257 (1998). (Dkt. No. 17: Sbarro Br. at 8-12.) The Second Circuit has summarized the Faragher-Ellerth defenses as follows:

An employer maybe held vicariously liable under Title VII when a supervisor creates a hostile work environment. See Faragher, 524 U.S. at 807. 118 S.Ct. 2275; Burlington. 524 U.S. at 765, 118 S.Ct. 2257. However, an affirmative defense is available when the employer does not take any tangible employment action^_ in connection with the harassment. See id. This defense examines the reasonableness of the conduct of both the employer and the victimized employee. Specifically, the Supreme Court held that

[t]he defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Id. at 807, 118 S.Ct. 2275: Burlington. 524 U.S. at 765. 118 S.Ct. 2257. It is well-established that a defendant . . . bears the burden of proving its affirmative defense. . . .

"An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercised reasonable care in preventing and correcting sexually harassing conduct. Although not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of this defense." Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 ([2d Cir.] 1999).

Leopold v. Baccarat. Inc., 239 F.3d 243, 245 (2d Cir. 2001): see, e.g.,Mack v. Otis Elevator Co., 326 F.3d 116, 124-25 (2d Cir.), cert. denied, 124 So. Ct. 562 (2003); Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 92-93 (2d Cir. 2002); Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001), cert. denied. 536 U.S. 922, 122 S.Ct. 2586 (2002); Le Prevost v. New York. 03 Civ. 2544, 2004 WL 32860 at *3-4 (S.D.N.Y. Jan. 6, 2004); Payano v. Fordham Tremont CMHC, 287 F. Supp.2d 470, 474-75 (S.D.N.Y. 2003); Gonzalez v. Beth Israel Med. Ctr., 262 F. Supp.2d 342, 354-57 (S.D.N.Y. 2003); Hussain v. LIRR. 00 Civ. 4207, 2002 WL 31108195 at *7-9 (S.D.N.Y. Sept. 20, 2002).

_

"Tangible employment action" refers to "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington. 524 U.S. at 761, 118 S.Ct. 2257.

The Supreme Court "held that if behavior illegal under Title VII culminates in a supervisor's tangible employment action, the employer will, ipso facto, be vicariously liable for it." Mack v. Otis Elevator Co., 326 F.3d at 124 (citing Burlington Indus., Inc. v. Ellerth). In August 2002, Miticam asked Fahti to speak to Slaitane for not being responsive to customers and for ignoring Miticam. (See page 4 above.) Sbarro alleges that Fahti cut two days from Slaitane's schedule because she was insubordinate (see page 4 above), while Slaitane alleges that he cut her hours because she rebuffed Fahti's advances (see pages 4-5 above).

Removing two days from Slaitane's work schedule is a "tangible employment action" because she suffered the economic harm of lost wages.See, e.g., Jin v. Metropolitan Life Ins. Co., 310 F.3d at 100 ("`Dock[ing] another's pay" is a `direct economic harm' that can be inflicted only by a supervisor.' . . . [T]he lost use of wages for a period of time is, by itself, an economic injury that can qualify as a tangible employment action.") (quoting Burlington v. Ellerth. 524 U.S. at 762, 118 S.Ct. at 2269); Lovejoy-Wilson v. NOCO Motor Fuel. Inc., 263 F.3d 208, 223-24 (2d Cir. 2001) ("[S]uspension without pay [for a week] is sufficient to constitute an adverse employment action" because the plaintiff "lost wages." Even if later reimbursed, plaintiff's "loss of the use of her wages for a time . . . would be sufficient to support a jury's finding that she suffered an adverse employment action."):Satterfield v. United Parcel Serv., Inc., 00 Civ. 7190, 2003 WL 22251314 at *10 (S.D.N.Y. Sept. 30, 2003) (Plaintiffs "one-day suspension . . . arguably does fall within the Second Circuit's definition of `materially adverse' action since plaintiff presumably was forced to forego one day's worth of wages.") ( cases cited therein); Page v. Connecticut Dep't of Pub. Safety. 185 F. Supp.2d 149, 157 (D. Conn. 2002) ("In this Circuit, suspension without pay constitutes adverse employment action. . . . In this case, plaintiff was suspended for two days without pay. Thus, she lost wages. She was also orally counseled for three alleged incidents of unacceptable work behavior and then reprimanded in writing. These would be sufficient to support a jury's finding that she suffered adverse employment action.").¹⁹

19 Compare, e.g., Mormol v. Costco Wholesale Corp., 364 F.3d at 58 (No tangible employment action where plaintiff was promised seven days of work and was only given three days because "she does not claim any lost wages or assert that she suffered any economic harm."); Oliver v. University of Conn. Health Care. 292 F. Supp.2d 398, 407 (D. Conn. 2003) ("Plaintiff's one-day suspension did not constitute a materially adverse change because plaintiff testified that he was not debited any work time or pay.").

Because a reasonable jury could find that Fahti's actions culminated in Slaitane two-day loss of wages, a tangible employment action, theFaragher/Ellerth defense is unavailable to Sbarro.²⁰ Under these circumstances, Sbarro is not entitled to summary judgment on theFaragher Ellerth affirmative defense.

20 The Court recognizes that Slaitane's hostile environment claim is based on an extremely weak record of comments and her quid pro quo harassment claim is based on a very minor tangible employment action. Although the Court highly doubts her ability to succeed at trial, Slaitane's claims are just barely sufficient to survive Sbarro's summary judgment motion and must be resolved by a jury.

B. Sbarro is Granted Summary Judgment on Slaltane's November 2002 Claim

Slaitane claims that approximately three weeks after her September 4, 2002 return to Unit 320, Fahti asked her to live with him, but did so only once. (See page 9 above.) Slaitane turned him down but did not complain to Human Resources or senior management. (See page 9 above.)

On November 22, 2002, some two months later, after Slaitane was accused of pocketing money and after Slaitane admittedly stated that Egyptians are "faggots," Fahti told her to "go home." (See page 10 above.) Even assuming arguendo that Slaitane was fired (despite Hubbard's informing her that she was not fired and that he would investigate), Slaitane cannot show that the "tangible employment action" was caused by her spurning Fahti's advances or was in retaliation for her complaints about the alleged harassment.

At the second McDonnell Douglas step (see pages 20-21 above), Sbarro preferred evidence that Slaitane was sent home because of co-worker complaints about her disparaging remarks about Egyptians — remarks which Slaitane admitted to making. (See pages 9-10 above.) The burden thus shifted to Slaitane at the third McDonnell Douglas step to prove that this reason was pretextual and was a pretext for discrimination (or retaliation). (See pages 21-22 above.) Slaitane has not done so.

While Slaitane alleges that Fahti again asked her to live with him in late September 2002, and that she again rejected his advance, she does not in any way tie this incident to the "termination" of her employment two months later.²¹ Slaitane does not claim that Fahti threatened to fire her (or threatened her in any way) if she spurned his advances. Nor does she explain why, since she had rejected him prior to August 12, 2002, he would fire her in late November 2002 because she again rejected his advances in September 2002. Examining the entire record, the Court is convinced that Slaitane cannot satisfy her "ultimate burden of persuading the trier of fact that [Sbarro] intentionally discriminated against" her in November 2002. Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000); see page 23 above. See also, e.g., Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (While "two month delay" does not "completely vitiate" the claim, Second Circuit's "evaluation of the record . . . confirms that indicia of retaliatory intent are lacking.");Punsal v. Mount Sinai Servs., 01 Civ. 5410, 2004 WL 736892 at *13 (S.D.N.Y. Apr. 6, 2004) ("Even if plaintiff could make a showing of temporal proximity, in the absence of other evidence showing a causal relationship between the SDHR/EEOC complaint and her termination, such a showing could not satisfy herburden."): Hill v. Citibank Corp., 02 Civ. 1917.2004 WE 613399 at *13.___F. Supp.2d ___ (S.D.N.Y. Mar. 26, 2004) ("`[T]emporal proximity alone is not necessarily dispositive of a causal connection,' and courts tend to find it sufficient only where the temporal proximity is Very close.' The Court of Appeals for the Second Circuit has not set a bright-line test as to when a temporal link becomes too attenuated to demonstrate causation. In this case, where the adverse action occurred two months after the plaintiff's protected activity, the temporal proximity is neither very close nor excessively attenuated. But under all the circumstances of this case, the timing of the decision to terminate the plaintiff's assignment does not imply retaliation. . . . The plaintiff, therefore, cannot state a prima facie case for retaliation because there is no direct or indirect evidence connecting a retaliatory motive to the decision to terminate the plaintiff's assignment.") (citations omitted):Booker v. Federal Reserve Bank. 01 Civ. 2290, 01 Civ. 2291, 2003 WL 1213148 at *16 (S.D.N.Y. Mar. 17, 2003) (Where plaintiff filed an EEO complaint in the morning, and was informed of his allegedly retaliatory transfer that afternoon, "[d]espite the temporal proximity, no reasonable jury could find that defendant transferred [plaintiff] for filing an EEO complaint. . . . Although the timing provides circumstantial evidence of retaliatory motive, . . . no reasonable jury could find retaliation based on the evidence as a whole," including the fact that there was no evidence that management became aware of plaintiffs complaint before he was informed of the transfer); Das v. Our Lady of Mercy Med. Ctr., 00 Civ. 2574, 2002 WL 826877 at *12 (S.D.N.Y. Apr. 30, 2002) ("Proximity in time alone will not support a finding (as opposed to making out a minimal prima facie case) that a plaintiff has proved a causal connection between protected activity and an adverse employment action. . . . In this case, [plaintiff] has presented no admissible evidence, other than temporal proximity, to support the claim that his dismissal from his employment was retaliatory."), aff'd, No. 02-7694, 56 Fed. Appx. 12, 2003 WL 174672 (2d Cir. Jan. 23, 2003).²²

21 While in certain cases a causal connection can be established by the proximity of the events, see Nonnenmann v. City of New York. 02 Civ. 10131, 2004 WE 1119648 at *22-23 (S.D.N.Y. May 20, 2004) (Peck, M.J.) ( cases cited therein), this is not such a situation. See, e.g., Edwards v. Interboro Inst. 840 F. Supp. 222, 229 (E.D.N.Y. 1994) ("That the factor of temporal proximity alone is not determinative is recognized in Hollander v. American Cynamid Co., 895 F.3d 80 (2d Cir. 1990), in which the time intervening between the alleged discrimination and the protected activity was only three months. The court there affirmed the granting of summary judgment to the defendant finding that the plaintiff had `not offered any evidence which would fulfill the final requirement of a causal nexus between his filing of the agency complaint, on the one hand, and [the adverse employment action], on the other.' Therefore, the fact that [plaintiff's] termination occurred less than one month after [defendant] learned of his charge to the EEOC does not, in and of itself, establish a prima facie case of retaliatory discharge."); see also cases cited at pages 33-35 below.

22 See also. e.g. Forant v. Cabot Creamery Coop., Inc., 74 F. Supp.2d 415, 420 (D. Vt. 1999) ("Upon examination of the record to date, the Court is unable to discern any evidence from which a jury could find a causal connection between [plaintiff's] . . . termination and any complaint of gender discrimination." Where plaintiff was terminated two months after her complaint, "[t]he protected activity was thus not followed closely by her discharge. . . . Nor is there direct evidence of retaliatory animus; the record does not even reflect that those responsible for firing [plaintiff] knew that she had complained of gender discrimination."); Valentine v. Standard Poor's. 50 F. Supp.2d 262, 291 (S.D.N.Y. 1999) (Sotomayor, D.J.) ("Despite the [two-month] temporal correlation between plaintiff's filing of the EEOC charge and his termination, he has failed to establish that [defendant's] preferred reason for dismissing him . . . was false and that unlawful retaliation was the true reason for his discharge.");Padob v. Entex Info. Serv., 960 F. Supp. 806, 814 (S.D.N.Y. 1997) (Plaintiff's "termination after three months, although close in proximity to her filing of an EEOC charge, does not, standing alone, establish the necessary causal connection between the protected activity and her discharge."): but see Ashok v. Barnhart, 289 F. Supp.2d 305, 315 (E.D.N.Y. 2003) (Plaintiff established prima facie case of retaliation where her application was rejected "only two months" after her filing of an EEOC complaint.);Little v. NBC. 210 F. Supp.2d 330, 386 (S.D.N.Y. 2002) (Plaintiff's assignment to undesirable shifts two months after his internal complaint "raises a genuine issue of fact as to whether [plaintiff's] protected activity was followed so closely by discriminatory treatment as to establish causation by temporal proximity.") (internal quotation and alteration omitted).

Nor has Slaitane shown that she was fired in retaliation for her internal complaints or her EEOC complaint. "In order to `establish aprima facie case of retaliation, an employee must show "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.'"" Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004) (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995))).²³

23 Accord, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 02 Civ. 7380, 2004 WL 285947 at *21 n. 29 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) ( cases cited therein); Viruet v. Citizen Advice Bureau. 01 Civ. 4594, 2002 WE 1880731 at *22 n. 42 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.) ( cases cited therein); Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WE 265120 at * 17 n. 29 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) ( cases cited therein); Williams v. NYC Dep't of Sanitation. 00 Civ. 7371, 2001 WE 1154627 at *20 n. 34 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.) ( cases cited therein): Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WE 492448 at * 18 n. 45 (S.D.N.Y. May 9, 2001) (Peck, M.J.) ( cases cited therein); Cobian v. New York City, 99 Civ. 10533, 2000 WE 1782744 at *16 n. 36 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ( cases cited therein), aff'd, No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 419 (S.D.N.Y.) (Wood, D.J. Peck, M.J.) ( cases cited therein), aff'd, No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.) ( cases cited therein).

There is no evidence that Sbarro "fired" Slaitane in response to her internal August 2002 complaint of harassment by Fahti. In fact, whatever interpretation Slaitane placed on Fahti's order to her to "go home," she was explicitly told by Hubbard that she was not fired and that he would investigate. (See page 11 above.) Slaitane never contacted Hubbard or Sara after that, and Hubbard's efforts to contact Slaitane were unsuccessful. (See page 11 above.) Therefore, as far as Sbarro senior management and Human Resources were concerned, Slaitane had quit her job. Again, the Court is convinced that Slaitane cannot satisfy her ultimate burden of persuading the trier of fact that Sbarro retaliated against her for her prior internal harassment complaint.

Finally, there is no evidence that Sbarro knew that Slaitane had filed a complaint with the EEOC on November 6, 2002; the only evidence in the record is that Sbarro first learned of Slaitane's EEOC complaint after her employment had terminated. (See page 11 above.) Obviously, since the termination of Slaitane's employment occurred before Sbarro learned of her EEOC complaint, it cannot have been in retaliation for that subsequent event. See, e.g., Diaz v. Weill Med. Ctr. of Cornell Univ., 2004 WL 285947 at *21 ( cases cited therein).

Accordingly, Sbarro is entitled to summary judgment dismissing all of Slaitane's claims. III. FALL'S CLAIMS

On December 20, 2002, Sbarro placed Fall on unpaid "Administrative Leave" because his INS work authorization had expired. (See page 12 above.)²⁴

24 Sbarro informed Fall that he would be returned to active status when he provided Sbarro with his renewed work authorization papers. (See page 12 above.) Fall did not seek such reinstatement when he received his work authorization. (See page 13 above.)

In the absence of a work authorization, it would have been illegal for Sbarro to continue to employ Fall. See 8 U.S.C. § 1324a(a)(2).²⁵

25 That section provides:

It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.

8 U.S.C. § 1324a(a)(2).

As noted above, the first step of the McDonnell Douglas test is for the plaintiff to establish a prima facie case. (See cases cited at page 20 above.) One factor in a prima facie case is that the plaintiff was qualified for the position. See, e.g., O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1308 (1996).²⁶ While Fall was qualified in the sense that he could make pizza, he was not "qualified" because he did not have legal authorization to work. See, e.g., Reyes-Gaona v. North Carolina Growers Ass'n. Inc., 250 F.3d 861, 863 (4th Cir.) ("[F]or a foreign national to be `qualified' for a position, he must be authorized for employment in the United States at the time in question."), cert. denied. 534 U.S. 995, 122 S.Ct. 463 (2001); Chaudhry v. Mobil Oil Corp., 186 F.3d 502, 504 (4th Cir. 1999) ("A foreign national who applies for a job in the United States is entitled to Title VII protection `only upon a successful showing that the applicant was qualified for employment.' A foreign national is qualified for employment if'the applicant was an alien authorized for employment in the United States at the time in question.'") (quoting Egbuna v. Time-Life Libraries. Inc., 153 F.3d 184, 187 (4th Cir. 1998) ("When the [job] applicant is an alien, being `qualified' for the position is not determined by the applicant's capacity to perform the job — rather, it is determined by whether the applicant was an alien authorized for employment in the United States at the time in question.")), cert. denied. 525 U.S. 1142, 119 S.Ct. 1034 (1999); Anderson v. Conboy. 156 F.3d 167, 180 (2d Cir. 1998) ("If an employer refuses to hire a person because that person is in the country illegally, that employer is discriminating on the basis not of alienage but of noncompliance with federal law.").

26 See also, e.g., Williams v. R.H. Donnelley, Corp., No. 02-7681, 2004 WL 1067939 at *3, ___ F.3d ___ (2d Cir. May 13, 2004); Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004); Ferrell v. Leake Watts Servs., Inc., No. 03-7072, 83 Fed. Appx. 342, 345, 2003 WL 22743076 at *2 (2d Cir. Nov. 20, 2003); Porter v. New York State Dep't of Motor Vehicles. No. 03-7191, 78 Fed. Appx. 166, 168, 2003 WL 22367531 at *2 (2d Cir. Oct. 17, 2003); Molin v. Shapiro, No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003); Mandell v. County of Suffolk. 316 F.3d 368, 377 (2d Cir. 2003); Darrell v. Consolidated Edison Co., 01 Civ. 8130, 2004 WL 1117889 at *8 (S.D.N.Y. May 18, 2004);Lichtenstein v. Triarc Cos., 02 Civ. 2626, 2004 WL 1087263 at *3 (S.D.N.Y. May 14, 2004).

Fall's response is that Sbarro hired or retained other workers who did not have work authorizations. (Seepage 13 above.) Fall'sipse dixit is not admissible evidence. Fall identified four such persons by name — but two are still employed by Sbarro with valid work permits and the Sbarro employment of the other two was terminated in November 2002 and March 2003. (See page 13 above.)²⁷ Sbarro terminated other employees beside Fall at around the same time for expired work authorizations. (See page 13 above.) Thus, there is no admissible evidence that Fall was treated differently than similarly situated employees when placed on administrative leave.²⁸

27 Fall submitted two Employee Eligibility Verification Forms, but those merely show that the two employees had valid work authorizations through 2005 and 2007 respectively. (Slaitane/Fall Aff. ¶¶ 9-10 Exs. 5-6.)

28 The case law in certain circumstances holds that what is otherwise a valid reason to discipline or fire a worker (e.g., employee theft) can be shown to be a pretext if, for example, a black employee who committed the offense is fired while a white employee who committed the same offense is not. See, e.g., Williams v. NYC Dep't of Sanitation. 00 Civ. 7371, 2001 WL 1154627 at *17 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); see also, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282-84, 96 S.Ct. 2574, 2580 (1976) (Two white employees properly stated Title VII claim where they alleged they were discharged for theft of cargo while a black employee, who was also implicated in the theft, was not discharged.); Tappe v. Alliance Capital Mgmt., 198 F. Supp.2d 368, 375 (S.D.N.Y. 2001) ("[A]n inference of discrimination is raised when an employer fires two white employees, but not a black employee, for stealing.") (citing McDonald v. Santa Fe Trail Transp. Co.); Baker v. National R.R. Passenger Corp., 94 Civ. 0856, 1997 WL 53237 at *7 (S.D.N.Y. Feb. 7, 1997) (a rational jury could find defendant's proffered reasons for terminating black employees were pretextual where plaintiffs "submit[ted] evidence that black employees were disciplined more harshly than white employees accused of engaging in the same or similar conduct."). The Court, however, would be loathe to extend that line of cases to situations involving employment of undocumented aliens, since that subjects the employer to criminal penalties. See, e.g., Hoffman Plastics Compounds, Inc. v. NERB, 535 U.S. 137, 148, 122 S.Ct. 1275, 1283 (2002) ("If an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status. [8 U.S.C.] § 1324a(a)(2). Employers who violate [the Immigration Reform and Control Act of 1986] are punished by civil fines . . . and may be subject to criminal prosecution. . . ."). The Court need not decide this issue or address the possibly conflicting policy concerns this would raise since Fall has not provided any admissible evidence that Sbarro allowed other employees to work during a period that they lacked renewed working papers.

Fall's discriminatory termination claim is dismissed.²⁹

29 The Court notes that during Fall's employment, Fahti's description of Fall (when speaking to Slaitane) as being black — even if that is considered disparaging instead of merely descriptive because of the context (see page 6 above) — was not sufficient to create a hostile work environment. (See cases cited on page 27 above.)
To the extent Fall complains that he was discriminated against by not being promoted, with respect to the only specific promotion he complains about, he did not express his interest in the position to Regional Manager Sara until after the job already had been given to someone else. (Sbarro 56.1 Stmt. ¶¶ 87-88; Sara Aff. ¶ 7; Fall Dep. at 87-89.) Because he did not apply for the position or make Sara aware of his interest until after the fact, he has not proven a discriminatory promotion claim. See, e.g., Mauro v. Southern New England Telecomm., Inc., 208 F.3d 384, 387 (2d Cir. 2000) (Second Circuit has held "that a plaintiff alleging failure to promote ordinarily must show that he or she applied for the specific job or jobs at issue.") (citing Brown v. Coach Stores. Inc., 163 F.3d 706, 710 (2d Cir. 1998)); Wong v. Kings County Dist. Attorney's Office. No. 02 CV 3740, 2004 WL 692165 at *4 n. 4 (E.D.N.Y. Mar. 31, 2004) ("[A]n employer cannot fairly be penalized for failing to divine an employee's unexpressed hopes and desires. It does not ask too much of an employee to require that he or she express, in words or substance, `I want the job,' as a condition for bringing a discrimination action when the employee does not get the job. . . . In order to complain about the failure to give that position to him, [plaintiff] was required to apply for it."): Stoner v. New York City Ballet Co., 99 Civ. 0196.2002 WL 523270 at* 17 (S.D.N.Y. Apr. 8, 2002) ("Plaintiff cannot establish an adverse employment action as part of his retaliatory failure to promote claim because he has failed to apply for the specific position he alleges he was denied."); Subramanian v. Prudential Secs., Inc., No. CV016500, 2003 WL 23340865 at *6 (L.D.N.Y. Nov. 20, 2000) ("To establish a prima facie case for failure to promote, a plaintiff generally must establish that he applied for the positions at issue."); Hollein v. Citibank, N.A., 97 Civ. 3982, 2000 WL 1557936 at *3 (S.D.N.Y. Oct. 19, 2000) ("Because Plaintiffs failure to apply for the position precludes her from establishing a prima facie failure-to-promote claim, summary judgment is granted as to this portion of her . . . claim."): Bertuzzi v. Chase Manhattan Bank, N.A., 98 Civ. 5968, 1999 WL 759997 at *6 (S.D.N.Y. Sept. 24, 1999) ("Because plaintiff failed to apply for the position, defendant's failure to promote him could not possibly be an adverse employment action.").

CONCLUSION SCHEDULING

For the reasons discussed above, Sbarro is granted summary judgment dismissing Fall's complaints in their entirety and Slaitane's November 2002 retaliatory termination claim. Summary judgment is denied on Slaitane's pre-August 2002 sexual harassment discrimination claim, which will proceed to trial. The Joint Pretrial Order is due thirty days from this Opinion Order, that is, by July 2, 2004. The Clerk of Court is to enter judgment dismissing Fall's action.

SO ORDERED.