Attorney Input Needed: Bogus Demotion
 

I have a question for the attorneys on the board, specifically those versed in labor law.

I’ll try to keep the details of the case short and to the point, but I’m not sure what information is critical and what is not, so here goes….

My good friend, we’ll call him “Steve”, is a General Manager at a well-known South Florida restaurant chain (this is a family owned chain famous for their ribs and white-bearded spokesman, for those of you in the area). Steve has been with the company for upwards of 15 years, starting out as a bartender and working his way up the chain to his current position. As general manager, he is responsible for the overall operation of the restaurant, from front-of-house to kitchen to supplies to etc…. Steve has been responsible for turning around operations at several of the lesser-performing stores (think Gordon Ramsey from “Hell’s Kitchen”) and most lately opening a new store. This new opening was reportedly the smoothest one in the chain’s history. Long story short, Steve is a dedicated and hard working employee with a very positive history.

Here’s where things get interesting. Three weeks ago Steve is making the rounds at the restaurant. He goes into the kitchen to check on operations and sees one of the cooks (a “problem” employee: chronically late, poor work ethic, frequently reprimanded, etc.) with the “low rider” pants on. The cook had apparently been verbally warned in the past about the pants, but this time they were exceptionally low, as in so low that the only thing covering his entire ass was his underwear. You and I would refer to the pants being halfway off. Now, Steve has a good relationship with his employees and likes to talk to them man to man, so he does so with this cook. He walks up behind the guy and says, “Come on man, you know you can’t wear your pants like that in the kitchen” and simultaneously lifts up the guy’s shirttail to fully reveal the rest of the offending ass. The cook says, “Don’t touch me man!” Steve says, “I won’t have to touch you if you don’t wear your pants like that in the kitchen” to which the cook replies, “OK, fine” or something like that. Case closed, right? Handled man to man, as it should be, right? The cook was not written up or punished further and all was forgotten.

Fast forward two weeks.

Steve is called in to a meeting on a Saturday to find a room full of people waiting for him. Members of the family who own the restaurant chain, other General Managers and Managers and the attorney for the restaurant chain. Steve is told that the Kitchen Manager of his restaurant went to the chain’s attorney (coincidentally, all other “higher-ups” in management were away on vacation or personal leave, so the attorney was conveniently next in line) and told him that Steve had lost control of his kitchen and had threatened one of “his” employees. Now, bear in mind, this was the newest and one of the highest performing stores in the entire chain. As a result of this complaint and “threat”, Steve is told that he is being removed from the store, is being demoted from General Manager to Manager, and his pay is being cut by 30-40%.

Here’s the kicker in all this: Steve is white. The cook and kitchen manager are black.

My feeling is that the restaurant didn’t want any bad publicity, especially race-related publicity, and decided to throw Steve under the bus.

My question is this: Does he have any grounds for legal action here?

In my opinion he does not. I think the problem is when he touch the guy with his paints down.

Is FL. an employment at will state?

First off, I am not an attorney.

I think your feeling is probably correct (race problems to be averted by small business owners).

I do not think Steve has an actionable case.

Unless one has a written contract or is a union member, one is hired/fired/promoted/demoted, etc. ...all at the whim of the business owner, unless 'Steve' falls under some protected 'group' that has State or Federal oversight.

Sounds like Steve is the wrong 'color' in this situation.

Life sometimes sucks.

Yes it is. He is not a union member so he is completely at will other than the protections of Title VII - discrimination is prohibited based on race, sex, color, religion, nation of natural origin. He has a claim to the extent that he can prove he was demoted because he was white, and for no other reason. Even a mistake over whether he lost his cool or not is not a discriminatory treatment.

It sounds to me to be a possible claim, but it seems a bit thin to me. Having said that, it is impossible to tell unless he consults with a Florida lawyer who specializes in employment law Not someone who does employment law, a lawyer who specializes in that area. There is a world of difference. This is an employment law issue, not a labor law issue. Even if there is no discrimination claim a good lawyer might be able to convince the employer they made a mistake and were not treating a good employee fairly.

Yes, Florida is a Right To Work state.

I think the restaurant took the two weeks to decide their plan of action and decided that a demotion would be less injurious than simply firing him.

Whites and blacks are equally protected by Title VII. It's a common misconception that whites are not protected from race discrimination. A very large percentage of claims are brought by whites claiming reverse discrimination

I have been incouraging him to threaten the old "I'll go to the media!!" routine with this one. If they are worried about their revenues, then this should strike a chord with them, no?

QUOTE: "A very large percentage of claims are brought by whites claiming reverse discrimination"
_____________________

Love to see the nationwide numbers comparing the cases won/lost by 'race'.

No, no a thousand times no. Do NOT threaten them. If he is going to get out of this situation it will be because a calm voice of reason convinces the chain that they made a mistake. If they are threatened it will make your friend's job unbeearable and it will result it an entrenched legal and PR position from the employer with no turning back.

IMO the 'media threat' is useless. Who's going to run with it ...Fox Network?
"Poor White Man gets short end of stick?"

Not too headline grabbing in this PC world.

Besides, if he pushes it too hard, he may find his demotion becomes a short (final) walk out the door.

Understood.

What could he potentially stand to gain from a lawsuit? His old job back? (at a company that I'm sure he doesn't want to work for now), Pain and suffering? A fat check to make him shut up and go away?

Well, a very high percentage of the "clientele" at this restaurant IS that "Poor White Man", but you do have a point....

no win situation
he invaded the other guys personal space

I'm a European, we don't have lawsuit bonanza's over here, here, the whole thing would have been a non issue, a slap on the wrist at most

But even i know( had the unfortunate displeasure to have worked for a US multinational, and had to sit through the policy crap each year, even if it didn't apply to us Euro trash), that in the US, with all yer lawyers, you just can't do what he did...

I say he cut's his losses, and moves on, anything else is risk

They didn't sack him, because it was risk to them from your friend suing, and they couldn't leave it alone, because it was risk to them as well from the other guy suing, i'm pretty sure they looked at all the odds and went for the middle way, purely based on risk assessment...

Maybe try to negotiate a good reference from the next in line, or a transfer to another branch, with a reinstatement to full status...No point in rocking the boat, because they have put him to stand on a plank... can try to shuffle back on board, or just take a dive...

but i'm no lawyer , so it's just 2cts

Yes, his remedy would be to get his old job back, plus back pay. He might want to work for his employer again if they realized they made a mistake and took him back in some sort of a compromise. That's the sort of thing a good, calm emplyment lawyer could get the employer to at least think about

Mo, the EEOC web site has statistics on claims but doesn't have them broken down by the color of the claimant. I did find a 2002 law journal article reporting the same thing as I said, though. I'm sure the actual statistics are out there. I don't do employment law any more but when I did I represented middle aged white guys who were riffed or demosted almost exclusively. A couple of white women, but never a non-white claimant.

http://www.theemploymentlawyers.com/Articles/race_discrimination_2002_update.htm

Right to work state, he's lucky to have a job. Time for the resume (CV) update.

Suppose he didn't touch the guy's shirt (which, by the way, is recorded on a security camera); is there still a case? Would it be different if he touched his arm instead?

I'm still trying to wrap my head around the idea of a company hanging a 15 year veteran out to dry and siding with a guy that probably won't even work there in 6 months.

I would imagine his version and the employee's version are vastly different. And what actually happened is somewhere in the middle.

"Steve has been with the company for upwards of 15 years, starting out as a bartender and working his way up the chain to his current position. As general manager, he is responsible for the overall operation of the restaurant, from front-of-house to kitchen to supplies to etc…. Steve has been responsible for turning around operations at several of the lesser-performing stores (think Gordon Ramsey from “Hell’s Kitchen”) and most lately opening a new store. This new opening was reportedly the smoothest one in the chain’s history. Long story short, Steve is a dedicated and hard working employee with a very positive history."

He should take his skills and professionalism go elsewhere. I am sure he knows many people in the industry and many that will treat him better.

Once they want you out - you are out. The whole situation in question may very well be an excuse anyway. Large corporations and family run concerns can be just as dumb at chasing away good people.

Time to move on and not let it effect his blood pressure and relationships.

He shouldn't have touched the guy at all. That's where his hung himself. Verbally correct him, send him home without pay, whatever, but don't touch him.

He has no case (I'm not an attorney though) and should probably chalk this one up to a lesson learned.

I touched a B1tch with a paper file..found myself in court facing assault..thankfully the hoe couldn't read the calender. No show= dismissed

Rika

IMO, generally speaking (the rules vary from state to state, of course) he has grounds for a legal action and a decent case. By that, I mean he has a case that would survive a summary judgment and get to a jury trial. At a jury trial in this type of thing, anything can happen.

Is the case worth pursuing? That's another question. I don't think it is so good that you will find a great (or even really good) contingency lawyer to take it. (If the races of the various parties were reversed, you might). If a good lawyer isn't willing to fund the case, that's usually a good sign that you shouldn't, either.

Some would depend on the company, and their history, have they done this in the past to others, have they been sued for it by others, are they sensitive to this type of lawsuit, etc. etc. etc. In addition to needing to know the state law and general attitude of the judicial system and juries in the area, you need to know about the company and how they are likely to react.

Was this all done verbally? From what you wrote they might have grounds to demote him, but they used the wrong reason. i.e. 'threatening' an employee.

I would start by asking for a written explaination from the employer and telling them that you will be starting legal proceedings if they refuse to document their case.

Is there such a thing as 'constructive dismissal' in Florida? Essentially it says that by demoting and reducing pay you are basically firing them. In this case dismissal seems to be an overly severe penalty.

I can see no race issue here.

Was either employee a union member?

And your friend might have handled it 'man-to-man'. But he handled it wrong.

No, He's a resident working in a "right to work" state, he could be demoted or fired because the boss didn't like his hair cut last week. What others have said is true unless he claims discrimination based on disability, gender, age or race he has no leg to stand on. It's a hire and fire at will state, no explanation required. He was probably demoted so they could avoid a racial lawsuit by the cook and avoid an unemployment insurance claim by not firing him.

From what he told me, this was all verbal. He made no mention of anything being presented to him in writing about the actual reason for demotion, other than, "He lost control of the kitchen and threatened an employee". Except for the security camera footage, it appears to be word against word.

Constructive dismissal? I have no idea. That's a good one. I'll look into it.

The race issue is simply my take on it. I think the "family" is scared $hitless of a racially charged lawsuit. Maybe they have been in a similar situation before and can't afford to even risk an out of court settlement. Again, they threw a 15 year veteran under the bus over a repeated uniform violation by a less-than-perfect employee. I smell fear.

No unions involved here, as far as I know.

Thanks for the input, gentlemen. Keep the ideas coming. I forwarded a link of this thread to him and we'll see what happens when (if) he talks to an attorney.

When he speaks with attorneys, the bottom line question he needs to focus on will be this: "Mr. Atty, will you take this case on a contingency?"

If, after explaining his case, some atty will take it on a contingency, then your friend has something to think about.

If no atty will, then it's over, just move on.

He should give up on this one and get a better job (sounds like he has experience so it should be no problem), Like others mentioned, if he fights it they will make is work life with them SUCK; if fear of color really was the reason they demoted him they wont change now and fire the cook rather than Steve.

First the version is this:


Then it is this:


Don't mean to go defense lawyer on you, but the first version suggests there was a physical confrontation.

Look, bottom line: If he likes his job and wants to tryto get his old position back he needs to calmly sit down with the owners and let them know he feels he's vbeing treated unfauirly. If they don't try to make it right by him given his long history with the company, then he needs to walk.

Problem is there is so little in damages that it probably isn't worthwhile to sue.

If he is truely good at what he does, there are plenty of restaurants that would love to have him on their staff.

Time to go somewhere where he is appreciated.

From what he told me, the picture I have in my mind is of a guy reprimanding his buddy for doing something stupid. In this case, wearing your pants halfway down your legs AGAIN. The buddy recognizes he's done something stupid, AGAIN, and everything is cool. Well, clearly it was not.

I agree with you, though. He really needs to get the hell out of there. Problem with that, however, is that the economy is in recession (can I say that? It hasn't been two quarters in a row...) and the restaurant industry is taking a beating right now. Not many good places looking to hire.

If he walked up to an employee and pulled that employee's shirt up, he's too stupid to be a manager anywhere.

That's just from a common sense standpoint, not a legal one (which usually has absolutely nothing to do with common sense).

It's not at all uncommon for a family business, after getting good and burned once...to over-react to future situations by just immediately terminating. This is seen as the lower risk option..even if the situation involves an otherwise good employee who made a human mistake.

I have seen this happen and it's not at all pretty. It's unfortunate that the non-protected folks are often needlessly paying with their careers for what a protected worker could do 10 times before being called out by management these days.

So your friend is lucky to still have a job there...not to mention his silly behavior. You never, ever, ever touch a subordinate.

That was my first thought. He touched the guy! WTF was he thinking? If he were my employee, he would have been sent to mandatory classes on sexual harassment and anger management. If he were a marginal employee I would have fired him.

Guys, guys ....
My whole intention in describing the scenario as a "man-to-man" talk was to illustrate the absence of malice or aggression in this "confrontation". I'm sure he "touches" co-workers all the time during day to day operations. It's a kitchen, for crying out loud. Have you ever "touched" a co-worker?

The difference here is that the guy used the contact (and subsequent verbal warning) as a springboard to elevate the situation to its current state because he didn't like being told what to do.

In hindsight should he have grabbed the guy's shirt? Well obviously not, but that's Monday morning quarterbacking.

It doesn't sound like you realize what a big issue that is. It was extremely poor judgement. He's lucky he still has a job.

Moses, I understand the dynamics of superior vs. subordinate contact. I get that.

What I am apparently doing a poor job of illustrating is that by Steve's account (and that's all I have to go on), this was not a physical confrontation. This was not a shouting match. This was not an altercation. This was not an argument. This was a 5-10 second verbal exchange. This was simply a guy telling another guy, whom he happens to work with every day, that he is in violation of company rules and he should probably shape up or he's going to have to officially reprimand him. I may have painted the picture that Steve jerked the guy's shirt up or somehow displayed aggression towards the cook, but that was not the impression that I got when Steve acted out the incident for me.

The problem I have with this whole incident, and I have from the start, is that the cook and kitchen manager took an otherwise forgettable incident and used it to stick it to "the man", and the higher-ups at the restaurant ran in fear.

I don't believe he did anything wrong, but that is not really the issue.

I am sure the owners felt they had no choice. If your friend plays nice, they will wait until this blows over and move him back up. Meanwhile, he should quietly start investigating other opportunities...just in case they do not.

The worst thing he can do is file a lawsuit or act like he is no longer a valuable of loyal employee. he will lose his job and find it near impossible to find a similar position with a firing for abusing subordinate."

Oh come on. He's management! A few simple rules;

1) If possible, discuss sensitive issues with employees in private. If you need a witness, have another manager present.

2) Never, ever touch an employee in any way that causes them harm or embarrassment.

3) Lifting a shirt to expose an employees ass is sexual harassment. No way around that one.

A competent manager would have called the cook to the side and calmly told him, "Take the rest of the day off. When you come back tomorrow, I expect you to be dressed appropriately" Pretty simple, really.

I don't know how much you have done blue collar work...if ever...but it is a whole different world.

Give the cook the rest of the day off?...and close the restraurant for the day? He would have been fired anyways.

Update:

Just got off the phone with Steve. The dust is settling...

Looks like the restaurant has decided to offer an olive branch. They are sending him to another store for the interim. His pay is still being cut, but not by the original 30-40%. More like 20-30%. Still a bit harsh in my opinion. The offending cook continues to violate the uniform policy and is still unable to arrive to work on time. He has not been reprimanded in any way.

They have guaranteed (like a "guarantee" means anything from these spineless ass-clowns) that he will get his original title back as well as his own store within 3 months. The salary deficit will have to work its way back down over time.

All in all I guess that's a pretty good outcome. I still have a really bad taste in my mouth over this whole PC-run-amuck incident. Steve learned not to touch anybody at work (he says he will no longer shake hands, back-pat or hug fellow employees or customers) and both the cook and kitchen manager have learned that they can play the race card whenever it benefits them.

Way to go Flanigans!

ml