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A hotel worker who claimed he suffered retaliation after complaining of racial and ethnic discrimination has been awarded $3 million by a federal jury in New York.

The jury found that Starwood Hotels unlawfully retaliated against Moises Mendez, a 46-year-old baker who has worked at the Westin Hotel in Times Square for seven years, after Mendez complained of discrimination based on his race and Ecuadorian origin.

“Mr. Mendez hopes this sends a message that employers can’t retaliate against employees who complain about discrimination,” said Mendez’s attorney Ken Thompson, a partner at Thompson Wigdor & Gilly in New York.

Mendez claimed that he suffered humiliating discrimination at the hands of his colleagues, who made fun of his appearance, called him names such as “Speedy Gonzales,” and even punched him in the face.

Mendez asserted that he reported the incidents to his employer on several occasions, turning in hand-written and type-written complaints about the abusive behavior.

Three weeks later, he said, the hotel secretly installed a video camera in the kitchen space where he worked.

Mendez sued, arguing that the camera was installed in retaliation for his complaints of discrimination.

Making a federal case out of it

Thompson filed suit in federal court under Title VII and §1981, and also alleged violations of state and city retaliation, discrimination and hostile work environment laws.

Thompson said that although employment discrimination cases are traditionally harder to win in federal court, as a former federal prosecutor he felt comfortable in the venue.

“It’s difficult to win employment cases in federal court, but I also think you have smart judges there and you get to trial faster,” he said.

The trial lasted more than three weeks, and 22 witnesses testified.

Starwood’s attorney argued that the camera was not installed in retaliation for Mendez’s complaints, but rather as part of its investigation into Mendez’s retaliation claims.

In a statement to Lawyers USA, Starwood said that “the only purpose of the camera was to investigate Mr. Mendez’s claims that he was being harassed and was intended to protect him and identify his alleged harasser.

“The hotel took its obligation to protect Mr. Mendez and investigate his allegations seriously and we believe did the right thing by him,” the statement said. “There was certainly never any adverse action taken against him by the hotel.”

But Thompson said he used the evidence from the camera itself to show that it was not installed to protect Mendez, but rather to intimidate him because of his complaints.

“I played footage from the hidden camera for the jury,” Thompson said, noting that the video focused only on Mendez’s area of the kitchen and showed him preparing pastries.

Altered document

According to Thompson, the key turning point in the case was the introduction of evidence that Mendez’s written complaints had been altered.

In one of the complaints, a co-worker said he saw another worker approach Mendez with his fist drawn as if preparing to punch him.

“Someone altered the statement to take out the statement that the witness saw the guy approaching him, then took [the] signature page and put it on the altered document.

“It was pretty explosive,” Thomson said. “The jury might have awarded the punitive damages … because of the outrage over [Mendez's] treatment, but I think the altered documents played a big role.”

Starwood did not make any settlement offers before or during trial, Thompson said.

The jury awarded Mendez $1 million in compensatory damages for pain and suffering, and an additional $2 million in punitive damages on the retaliation claim.

The day after the verdict, Mendez returned to work – an occasion marked with a press conference outside the hotel where Mendez and Thompson spoke.

In its statement, Starwood emphasized that the jury found in its favor on the discrimination and hostile work environment claims.

“Starwood is committed to maintaining a quality work environment that is free from all forms of discrimination, harassment and retaliation,” the statement said. “We are surprised by the jury’s sole finding of liability that the hotel had retaliated against Mr. Mendez for his complaints by installing a hidden camera…. We intend to file a motion to have this erroneous finding reversed.”

Plaintiff’s attorney: Kenneth P. Thompson of Thompson Wigdor & Gilly in New York.
Defense attorney: Michael Starr of Holland & Knight in New York.
The case: Mendez v. Starwood Hotels & Resorts Worldwide; March 10, 2010; U.S. District Court for the Southern District of New York; Judge Colleen McMahon.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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