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Restaurant Employer Wins Lawsuit because of Timing, Consistency and Documentation

posted Nov 7, 2013, 10:08 AM by Allison Ayer

The federal court in Connecticut recently granted a restaurant chain summary judgment on a race, sex and retaliation claim because the company had proper documentation, acted quickly, and treated people consistently.  As we have said on this page in the past, the best way to manage your employees and to improve your position in defense of potential discrimination claims involves “Timing, Consistency and Documentation.” Here’s what happened:

 

The Failing Restaurant

 

The plaintiff in this case, an African American carry-out and bar manager at a casual dining Italian restaurant chain, worked for the company for 10 years.  Throughout that time she worked for a number of general managers.  Her reviews were average, but they consistently noted a weakness in leadership, training, and attention to detail. 

 

During the first half of 2009, the Board of Health twice inspected the restaurant where plaintiff worked and the restaurant failed both times.  The Area Director, anticipating a follow up inspection from the Board of Health, visited the restaurant and conducted his own follow up inspection to ensure the restaurant would be fully prepared.  It was not, and the restaurant failed the Area Director’s inspection.

 

The Turn-Around

 

His response was severe.  The Area Director immediately fired the General Manager of the restaurant, a white male.  He transferred one assistant manager, a white female, to another restaurant, and he kept the remaining assistant managers, a white male kitchen manager and the African American female carry-out/bar manager, to report to the new General Manager who was also a white male. 

 

By April the following year, the new General Manager could see the problems in the management team and he placed both assistant managers on 90 day performance improvement plans. The plans set forth what each assistant manager needed to improve and set up a series of “one-on-one” meetings to track progress. 

 

The one-on-one meeting notes tracked the assistant managers’ progress or lack thereof. As for the carry-out/bar manager, she failed to hire and train new personnel at carryout and her liquor costs remained high, suggesting either lack of training or lack of integrity at the bar. By contrast, the kitchen manager improved his food cost issues and made progress on his performance improvement plan.

 

The Complaint

 

Seeing the track where her poor performance was leading her, plaintiff complained to corporate Human Resources that her General Manager was “unfair” to her and the management staff was not “a team.” She also claimed that her General Manager had skipped his “one-on-one” meeting with her.

 

HR responded directly by asking for details which plaintiff never supplied, and by asking the Area Director to ensure the one-on-one happened, which he did.  Plaintiff’s performance worsened however and by the end of the 90 day period it was clear she had failed.  The company terminated her employment.   

 

Plaintiff filed a charge of discrimination with the Connecticut Human Rights Commission and eventually a complaint in federal court alleging race and sex discrimination and a claim for alleged retaliation.  She could identify no specific racial comments, but she alleged her boss would “look past her” and was unfriendly to her while being friendly to others.  She also alleged her boss refused to accept her employee hires as they tended to be African American as well, but her only specific evidence of any animus along those lines was a criticism he made regarding their lack of training and that, when he could not remember one of their names, he referred to the individual as “the other one.”

 

Demolition in Discovery

 

During discovery, plaintiff had to admit to the content of her reviews which were consistent with her recent failures.  She also could not deny the numbers reflecting her poor performance at the bar. Although she argued that her Area Director acted with racial animus, she could not deny that his first action in response to the poor performance of the restaurant was to fire the white General Manager.  She also could not deny that both she and a white male assistant manager were put on performance improvement plans.  Try as she did, she could point to no facts showing that she was treated any differently than anyone else similarly situated.  

 

If she had anything, she could point to a demographic population in the management ranks of the company which was heavily weighted in favor of white males. But in a disparate treatment case, such demographics could only be useful for proving a discriminatory state of mind (also referred to as “animus”) on the part of her boss.  Yet, in this case, plaintiff had to admit that in a fit of frustration her boss told her that she reminded him of the prior General Manager that he had just fired.  That is, she reminded him of a white male predecessor.  Such thinking reflected anything but a race or sex bias.


By the end of discovery, plaintiff’s retaliation claims were hollowed out as well.  Not only had she failed to complain about discrimination prior to her termination, she failed to complain about anything until after she had been placed on a performance improvement plan.  Importantly, Connecticut case law asserts that there can be no retaliation if the adverse employment action happens after and as part of a prior disciplinary action or prior performance warning.  In this case, plaintiff had already been placed on a performance improvement plan before complaining about her boss’s unfair actions and the lack of a “team” attitude amongst the management staff.  Even if such complaint could have been construed as about discrimination, it cannot remove the fact that she was on a performance improvement plan which she failed to meet by the end of its term. 

 

The Judgment

 

Based on the above, the court dismissed the plaintiff’s entire case and entered judgment in favor of the restaurant on all claims. Although the court tersely noted that it based its decision on the arguments made by the defendant restaurant, it is clear that the evident timing, consistency and documentation supplied the restaurant with a clear defense and demonstrated that plaintiff’s case was more about excuses than about discrimination.

 

The Take Away

 

You have heard it before on this page.  First, taking action in a timely manner to confront poor performance or inappropriate conduct ensures not only that the issue gets resolved, it also ensures that the timing cannot be misinterpreted as related to something else. Second, treating people consistently is not only fair and good for morale, it deprives plaintiff’s with even an argument against the employer.  Third, documentation not only keeps expectations clear and helps manage people productively, it also provides a record in the event a plaintiff wants to recreate history.

 

Timing, consistent and document prevail again.

 

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