Elboute v. Highgate Hotels.LP

Background

Elaiachi Elboute, proceeding without a lawyer, sued his former employers, Highgate Hotels, L.P. and OYO Hotel Times Square. He alleged violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the New York State Human Rights Law, and the New York City Human Rights Law.

Elboute began working at the hotel in 2012 and described himself as the oldest houseman. During the COVID-19 pandemic, the hotel housed homeless individuals. Elboute alleged that employees feared harassment and property damage, that he was assigned a new night shift, and that he objected to work he believed he could not perform as an older person. The hotel terminated him in March 2021 for alleged theft of company time, based on its assertion that he spent 14 hours over three shifts sitting in a locker room and doing no work.

An independent industry arbitrator found just cause for the termination. The National Labor Relations Board later dismissed Elboute’s charge of retaliation for union activity after deferring to the arbitration decision. The New York State Division of Human Rights found no probable cause to conclude that the defendants had discriminated against him based on age or his opposition to discrimination. Elboute then filed this federal lawsuit after receiving a right-to-sue letter from the Equal Employment Opportunity Commission.

Motions and Evidence

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. They argued that the earlier state human-rights decision barred Elboute’s claims and that he had not plausibly alleged that his termination resulted from age discrimination or union activity.

Elboute asked for permission to submit additional documents and photographs on a compact disc. The court granted that motion and considered the photographs. Elboute also sought appointment of pro bono counsel. The court noted that he had been allowed to proceed without paying filing fees but questioned whether he could afford counsel. It separately concluded that his claims were not likely to have enough substance to justify appointing counsel.

Analysis

The court rejected the defendants’ collateral-estoppel argument. Collateral estoppel, also called issue preclusion, prevents a party from relitigating an issue already decided after a full and fair opportunity to litigate it. The court found that Elboute did not have such an opportunity before the state human-rights agency. He proceeded without a lawyer there, and the available record did not show that the agency exchanged discovery, interviewed witnesses, or held a hearing. The court therefore did not give that agency decision preclusive effect.

The court nevertheless concluded that Elboute failed to state an ADEA claim. Although he alleged that he was the oldest houseman and was assigned tasks he could not support as an older person, he did not allege facts such as age-related comments, adverse treatment because of age, or replacement by a younger employee. The court found that these allegations did not provide a plausible basis to infer age discrimination.

The court also concluded that Elboute failed to state a Title VII retaliation claim. Elboute alleged that he was an outspoken union representative who spoke about working conditions. The court explained that Title VII does not prohibit retaliation for union activity alone; the protected activity must oppose discrimination prohibited by that statute. Because Elboute did not allege that his union activities opposed legally prohibited discrimination, the court dismissed that claim.

The court did not decide the merits of Elboute’s New York State Human Rights Law and New York City Human Rights Law claims. After dismissing the federal claims, it declined to exercise supplemental jurisdiction over the state and city claims.

Disposition

The court granted the motion to submit further evidence, denied the motion for appointment of pro bono counsel, and granted the motion to dismiss. The court granted Elboute leave to amend because he had not previously amended his complaint and might be able to state a discrimination or retaliation claim. Any amended complaint was due within 30 days of the order.