United States District Court, N.D. California
GUL M. KODWAVI, Plaintiff,
INTERCONTINENTAL HOTELS GROUP RESOURCES, INC., et al., Defendants
[Copyrighted Material Omitted]
For Gul M. Kodwavi, Plaintiff: Curtis Gilbert Oler, LEAD ATTORNEY, Law Offices of Curtis G. Oler, San Francisco, CA.
For Intercontinental Hotels Group Resources Inc, Civil Center doing business as Holiday Inn, Gino Lazzara, General Manager, Adriano Lagrasso, Defendants: Michael J. Burns, Esq., LEAD ATTORNEY, Robb Drew McFadden, Seyfarth Shaw LLP, San Francisco, CA.
Order Granting Motion For Summary Judgment
YVONNE GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE.
Plaintiff Gul Kodwavi brings this action alleging national origin discrimination in
employment, as well as retaliation and harassment by his former employer, Defendant Intercontinental Hotels Group Resources, Inc. dba Holiday Inn, Civic Center (" the Hotel" ), and individual defendants Gino Lazzara (" Lazzara" ) and Adriano LoGrasso (" LoGrasso" ) (collectively, " Defendants" ). Plaintiff's claims are alleged under 42 U.S.C. section 1981 as well as the California Fair Employment and Housing Act (" FEHA" ). 
Defendants have filed a Motion for Summary Judgment on the grounds that Plaintiff has no evidence to create a triable issue of facts on any of his claims. On his national origin discrimination claim, Defendants argue, Plaintiff cannot establish a prima facie case of discrimination, nor can he offer facts to create a genuine dispute as to whether he was terminated for legitimate, non-discriminatory reasons. As to the claim of harassment in violation of the FEHA, Defendants argue such a claim was not the subject of a timely administrative charge with the California Department of Fair Employment and Housing (" DFEH" ), nor does Plaintiff have evidence of conduct based upon his national origin that created a hostile work environment. As to his retaliation claim, Defendants contend that Plaintiff does not have evidence that he engaged in any protected activity. And finally, Defendants seek summary adjudication as to Plaintiff's claims for punitive damages.
Having carefully considered the papers submitted, the admissible evidence, and the pleadings in this action, and for the reasons set forth below, the Court hereby Grants the Motion for Summary Judgment. 
I. Evidentiary Issues
Defendants object to specific portions of Plaintiff's declaration on the grounds that it lacks foundation, lacks personal knowledge, is based upon impermissible legal conclusions or opinions, and generally does not contain admissible evidence.  The Court Sustains Defendants' objections as follows: on the grounds of impermissible legal conclusions or statements of opinion as to paragraphs 7, 23, 34, 46, 71 and 79; on the grounds of lack of foundation as to paragraphs 59, 61, 62, 63, 75, 77, 116, 124, 131; and on the grounds that the declaration contradicts his deposition testimony as to paragraph 114. Objections to other paragraphs of the declaration are overruled.
Defendants also objected to declarations of several of Plaintiff's former co-workers on the grounds that they are improper character evidence which is irrelevant and inadmissible in connection with the motion,
in addition to lacking foundation. These declarations are nearly identical and largely addressed to the declarant's opinion of that Plaintiff is a good worker who would not engage in violence or use profanity on the job. They are, on the whole, irrelevant, inadmissible opinion, and improper character evidence. Thus the objections are Sustained and the Court has not considered these declarations.
Plaintiff objected to a number of facts included in Defendants' separate statement on grounds of relevance and impermissible opinion testimony. Although it is not clear whether those objections are to the underlying evidence itself, the Court has reviewed the objections and finds that they are without merit.
II. Summary of Facts
A. Plaintiff's Employment with the Hotel
Unless otherwise specified, the following facts are undisputed. Plaintiff was born in Pakistan and moved to the United States in 1970 at the age of 18. (Declaration of Michael J. Burns [ECF No. 54], ¶ 2, Exh. 1 (" Plaintiff's Depo." ) 44:20-45:4.) Plaintiff worked at the Hotel on and off for nearly 40 years, starting in the 1970s, first as a bus boy, then as a food server. (Plaintiff Dec. ¶ ¶ 4-5.) He was a member of Unite HERE, Local 2 (" Union" ) and one of its shop stewards. (Plaintiff's Depo. 101:22-102:7; Declaration of Kay Chew Low (" Low Dec." ), ¶ 43, Exh. 61 (collectively " Arbitration Tr." ) 19:12-20.) 
Defendant Lazzara became the General Manager of the hotel in 1997. Plaintiff claims that Lazzara approached Plaintiff to " reinsure" himself of his Pakistani national origin in 1997. (Plaintiff Dec. [Dkt. Nos. 82-85] ¶ 20.)
In 2008, Defendant LoGrasso became Plaintiff's supervisor. (Defendants' Statement of Undisputed Facts [Dkt. No. 52]  at 4-5.) At this time, Lazzara was still the General Manager of the Hotel and Low was the Human Resources (" HR" ) Director. (SUF 6-7.) In his declaration, Plaintiff contends that he was subject to an " unlawful discriminatory pattern of actions and conduct" that " accelerated beginning in or about 2008" when he avers that LoGrasso:
[made] false, negative remarks about me including remarks about my clothing, my hair, he followed me where ever I went, he was always saying things in a low voice, I could not make sense of it, when I would go to the kitchen to obviously get food for guests, he would badger me by asking what I was doing, why was I not in the dining room, on occasions when I was taking food for guests from the kitchen to the dining room, he would intentionally block my entrance into the dining room by closing the door in front of me, although I continued to complain to Kay Chew Low, Director of Human Resources, about LoGrasso's continuing hostility, actions and conduct against me, she never took any action to stop him.
(Plaintiff Dec. ¶ 22.)
B. Defendants' Version of Events on May 26, 2009
The parties disagree about what happened on the evening of May 26, 2009. According to Defendant, on the evening of May 26, 2009, LoGrasso observed Plaintiff
about to uncork a bottle of wine at the bar. (Declaration of Adriano LoGrasso [ECF No. 55] ¶ 4; Declaration of Kay Chew Low Dec., Exh. 61 [" Arbitration Tr.," ECF No.53-7] at 36:5- 37:9, 55:9-13; Declaration of Michael J. Burns, Exh. 1 [" Plaintiff's Depo.," ECF No. 54-1] at 459:3-20, 464:23-466:6.) LoGrasso asked Plaintiff, " Aren't you supposed to open the wine at the table?" (LoGrasso Dec. ¶ 4; Plaintiff's Depo. 460:2-25.) Plaintiff ignored LoGrasso's question, walked away, and delivered the bottle of wine to the guest who ordered it. (Plaintiff's Depo. 460:2-25; LoGrasso Dec. ¶ 4.) About 20 minutes later, Plaintiff approached LoGrasso on the dining room floor and said, " Look at this place. It is a fucking mess. I'll do my job and you do your job." (LoGrasso Dec. ¶ 4; Arbitration Tr. 137:10-23 and ER Exh. 9.) LoGrasso ignored the comment and continued about his duties. (LoGrasso Dec. ¶ 4; Arbitration Tr. 139:6-140:9, 174:10-175:24; ER Exh. 9.)
Later in the evening, LoGrasso entered the kitchen and saw a half-empty bottle of wine at the waiters' station, which was unusual because restaurant policy was to return such bottles to the bar. (LoGrasso Dec. ¶ 5; Arbitration Tr. 140:10-142:7; ER Exh. 9.) Believing the bottle to be the same one Plaintiff had served earlier in the evening, LoGrasso asked Plaintiff why the bottle was in the kitchen. (SUF 74.) Plaintiff said he did not know and told LoGrasso to dispose of the wine, which LoGrasso began to do. (LoGrasso Dec. ¶ 5; Arbitration Tr. 157:13-17, 179:1-24.) At that point, Plaintiff advanced towards LoGrasso and said, " stop asking me stupid fucking questions you motherfucker." (LoGrasso Dec. ¶ 5; Arbitration Tr. 141:19-142:24; ER Exh. 9-10, 13.) He " grabbed [LoGrasso's] waist, pulled LoGrasso towards him, and threatened him by saying, 'I know  why you got your job here. You dumb motherfucker, you don't know shit. I am going to get you.'" (LoGrasso Dec. ¶ 5; Arbitration Tr. 142:10-24, 143:21-144:11, 159:3-6; ER Exh. 9-10.)
LoGrasso went to his office and called Luke Cerny, the Assistant General Manager, informing him that he had just been physically assaulted by Plaintiff. (SUF 8, 10.) LoGrasso told Cerny that Plaintiff " hit him in the back by putting his arm around him and restrict[ing] his waist" and threatened him. (Declaration of Luke Cerny [ECF No. 56], ¶ 4; LoGrasso Dec. ¶ 6; Arbitration Tr. 214:17-21; ER Exh. 10; see also Arbitration Tr. 146:10- 21, 150:22-151:2, ER Exh. 10.) Cerny advised him to write up a report detailing Plaintiff's conduct, to contact the Manager on Duty (" MOD" ), and to suspend Plaintiff pending an investigation. (SUF 9.)
That same evening, LoGrasso called Low, the Human Resources Director, at home and told her about the incident. (SUF 9.) He told Low that Plaintiff called him a " motherfucker," grabbed his waist, and held him while threatening him. (Low Dec. ¶ 11-12, Exh. 22.) Low perceived that LoGrasso was " talking very fast," was " not calm," was " very upset" and was " scared." (SUF 11.) Low instructed LoGrasso to notify the MOD for assistance escorting Plaintiff out of the Hotel, to suspend Plaintiff pending an investigation, and to prepare a written report of the incident. (SUF 12.)
LoGrasso prepared a Disciplinary Action Form suspending Plaintiff pending further notice. (SUF 13.) He then met with Plaintiff, the MOD, and bartender Alex Arriola in his office. (LoGrasso Dec. ¶ 9; Arbitration Tr. 147:19-148:9; ER Exh. 9; Plaintiff's Depo. 484:2-485:14.) LoGrasso read the Disciplinary Action Form to Plaintiff and informed him that he was being suspended pending an investigation for using profanity towards a manager,
violating the Hotel's Standards of Conduct, and for being insubordinate. (SUF 14.) Plaintiff refused to sign the Disciplinary Action Form and was escorted off the property by the MOD. (LoGrasso Dec. ¶ 9.) Once Plaintiff left the property, LoGrasso prepared a full report of the incident. (SUF 15.)
C. Plaintiff's Version of Events of May 26, 2009
Plaintiff, for his part, recites a significantly different version of events on the last night he worked. Plaintiff says that it was a very busy evening and he was setting tables when LoGrasso " passed me twice telling me that he would get me that evening." (Plaintiff's Dec. ¶ 31.) One table ordered a bottle of red wine which Plaintiff got from the bar. LoGrasso followed Plaintiff to the bar, asking him why he was opening the bottle there instead of at the table as is normal. ( Id. ¶ 32.) Plaintiff says he explained to LoGrasso that a bottle the day before had had a black cork, so he was checking the bottle first by opening it halfway. ( Id. ¶ 31.) Plaintiff denies saying to LoGrasso that the place was a " fucking mess," and says that LoGrasso lied about Plaintiff ever touching him or using profanity. ( Id. ¶ ¶ 35-36.) Instead, Plaintiff insists that he told LoGrasso to stop harassing him and that he would go to the EEOC if he did not stop. ( Id. ¶ 36.) Plaintiff avers that he never engaged in any of the misconduct falsely charged by LoGrasso or anyone else on May 26, 2009, or at any other ...