Attorney Input Needed: Bogus Demotion

[Noney]

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?

[peppy]

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?

[Mo_Gearhead]

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.

[MRM]

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.

[Noney]

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.

[MRM]

Originally Posted by Mo_Gearhead

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.

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

[Noney]

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?

[Mo_Gearhead]

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'.

[MRM]

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.

[Mo_Gearhead]

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.

[Noney]

Originally Posted by MRM

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.

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?

[Noney]

Originally Posted by Mo_Gearhead

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.

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

[svandamme]

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

[MRM]

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

[72doug2,2S]

Originally Posted by Noney

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.

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

[Noney]

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.

[Dueller]

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

[The Gaijin]

"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.

[Nathans_Dad]

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.

[Rikao4]

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