E.E.O.C. v. Joe's Stone Crab, Inc.

• Decision Date: 12 August 1998
• Docket Number: No. 93-1082-CIV.,93-1082-CIV.
• Citation: 15 F.Supp.2d 1364
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. JOE'S STONE CRAB, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

15 F.Supp.2d 1364

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. JOE'S STONE CRAB, INC., Defendant.

No. 93-1082-CIV.

United States District Court, S.D. Florida.

August 12, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gedety Serralta, Rachel Shonfield, Michael Farrell, Miami District Office, EEOC, Miami, FL, for Plaintiff.

Robert D. Soloff, Julie Waas, R. David Rosen, Fort Lauderdale, FL, for Defendant.

MEMORANDUM OPINION ON MONETARY DAMAGES & INJUNCTIVE RELIEF

HURLEY, District Judge.

At the conclusion of the liability phase of this case, the court found Joe's Stone Crab, Inc. (Joe's or "the restaurant") guilty of sex discrimination. See EEOC v. Joe's Stone Crab, Inc., 969 F.Supp. 727 (S.D.Fla.1997). This finding was based on an examination of Joe's employment practices which showed that management delegated total hiring authority to subordinates who, without the benefit of policies¹ or guidelines, used subjective criteria to select only males for food server positions. One high-ranking subordinate conceded that "[i]t was always tradition from the time I arrived there that it was a male server type of job. And until just recently when we became aware that we had to do other things, ... originally it was traditionally a male place." L.Tr. 1484-85.² With one notable exception, Joe's entire seventy-member serving staff was male. Despite what should have been apparent, management never voiced a concern nor questioned the hiring staff's decisions. Indeed, the general manager admitted that it never struck him as odd that female food servers were not being hired. L.Tr. 1467. In this environment, management's silence conveyed approbation. As previously found by the court, "what prevailed at Joe's, albeit not mandated by written policy or verbal direction, was the ethos that female food servers were not to be hired." Joe's Stone Crab, Inc., 969 F.Supp. at 732. And, in fact, they were not. Prior to the EEOC's intervention, female applicants for food server positions at Joe's had no reasonable likelihood of being hired.

During the subsequent trial on damages, Joe's called Gerri Isaacson as a witness in an effort to demonstrate that female applicants are no longer subject to sex discrimination. Ms. Isaacson applied for a food server's position in 1994 but was not selected. Undaunted, she diligently prepared to reapply in 1997. She purchased a commercial serving tray, loaded it with household china and carried it about her apartment, developing the skill to pass Joe's mandatory tray test. Concerned that her past employment might not reflect her ability to meet Joe's stringent standards, she gathered letters of recommendation from satisfied customers to attach to her resume, which she presented to Joe's hiring panel. She arrived early at the '97 roll call³ and was among the first interviewed. Her efforts paid off. She was invited to "trail" (Joe's term for on-site observation) and ultimately was selected for a coveted food server's position at Joe's, one of Miami Beach's premier restaurants.

Gerri Isaacson's experience epitomizes the goal of this litigation: to ensure that all women who apply to work at Joe's will be evaluated on merit, free from sex discrimination. This is more than an aspiration; it is the law of the land: sex discrimination is illegal. In a community where tourism is a major component of the economy and where food serving positions can be highly remunerative, all individuals must be free to compete on the basis of merit. The Old World notion that it is "classier" to have only male food servers is, at best, a quaint anachronism; it is not a defense to the charge of sex discrimination.

Throughout this litigation, Joe's has sought to portray itself as the hapless victim of a powerful government agency gone awry. Yet it is indisputable that it was not until 1991, after the EEOC announced its investigation, that Joe's began to hire female food servers in significant numbers. Until then, virtually every member of the seventy-plus serving staff was male. From 1986 until 1990, in the period just before the EEOC announced its investigation, the restaurant filled 108 successive vacancies with male applicants. Joe's suggestion that women did not want these jobs but were content to work as kitchen helpers, laundry workers, take-out salespeople, and cashiers is not credible. In 1991, when news of the EEOC's investigation appeared in the local media, women applied in unprecedented numbers. Moreover, interest has continued to grow. At the 1997 roll call, which was advertised in the local press,⁴ 35 of 125 applicants, or 28%, were female. Clearly, a new order has begun to take hold at Joe's, albeit under the watchful eye of a court-appointed monitor. The progress that has been achieved is commendable, but it cannot expunge the past. Overwhelming evidence proves that Joe's engaged in blatant, prolonged sex discrimination. Consequently, it is only right — indeed justice demands — that Joe's be held accountable for its past illegal activity.

Based on the testimony and evidence presented at the trial on damages, the court makes the following:

FINDINGS OF FACT

1. Joe's newly-hired food servers start on the luncheon shift which has a lesser earning potential than the dinner shift. As they gain experience, servers are assigned to one or more dinner shifts per week. After the first year, most servers move to full-time dinner shift assignments. Consequently, there are three discernible earning periods for Joe's food servers: (1) the first three months of employment (Oct. 15th to Dec. 31st); (2) the first full calendar year of employment (Jan. 1st—Dec. 31st); and (3) succeeding calendar years.

2. Credible expert testimony established that food servers hired at the October '89 roll call earned $2,998 during the first three months of employment. Servers hired at the October '90 roll call earned $3,934 during the same three-month period. And servers hired at the October '91 roll call earned $2,820 during the same initial period. Servers hired at the '89 roll call, earned $12,516 in 1990; $15,392 in 1991; and $19,436 in 1992. Servers hired at the '90 roll call, earned $13,613 in 1991; and $19,436 in 1992. Servers hired at the '91 roll call earned $17,190 in 1992. Thereafter, servers in each of these three groups earned: $21,534 in 1993; $20,219 in 1994; $21,728 in 1995; $26,006 in 1996; and $26,221 in 1997.⁵ See Pl.'s Ex. 32(b); Def.'s Ex. 35.

3. Servers do not receive benefits during the first three months of employment at Joe's. Thereafter, the restaurant provides health insurance, life insurance, and profit sharing. The health insurance benefit is valued as follows: 1990: $1,321; 1991: $1,321; 1992: $1,261; 1993: $1,261; 1994: $860; 1995: $944; 1996: $944; 1997: $944. See Pl.'s Ex. 15. Plaintiff's and defendant's experts agreed that the profit sharing benefit equaled 2.5% of an employee's annual salary. D.Tr. 534 and 1666. The cost of life insurance was insignificant and, therefore, has not been included by the court. Thus, a server hired at the October '89 roll call received fringe benefits with the following total values: 1989: $0; 1990: $1,634; 1991: $1,706 and 1992: $1,747. A server hired at the October '90 roll call received fringe benefits with the following total values: 1990: $0; 1991: $1,661; and 1992: $1,747. A server hired at the October '91 roll call received fringe benefits with the following total values: 1991: $0; and 1992: $1,691. Servers hired in '89, '90 and '91 received fringe benefits with the following total values: 1993: $1,799; 1994: $1,365; 1995: $1,487; 1996: $1,594; and 1997: $1,600.

4. Until 1996, Joe's opened each year for a seven-month season, October 15th to May 15th. L.Tr. 1652. In 1996 and 1997, the restaurant closed for approximately six weeks during September and the first part of October. L.Tr. 1653.

Catherine Stratford

5. Catherine Stratford moved to Florida in 1990, intending to apply for a food server's position at Joe's at the October 1990 roll call. She was deterred from applying, however, when she learned from at least two sources that it would be useless to attend the roll call because Joe's did not hire female food servers. L.Tr. 324-27. Based on Ms. Stratford's testimony regarding her qualifications as a food server⁶ and upon the testimony offered by Joe's regarding the criteria used in hiring food servers,⁷ the court finds that Ms. Stratford was fully qualified in 1990 to work as a food server at Joe's. If Ms. Stratford had applied and been hired in October of 1990, she would have continued to work at Joe's through 1995.⁸

6. In 1991, Ms. Stratford heard that Joe's was being investigated by the labor board for engaging in sex discrimination. Therefore, she attended the October 1991 roll call and was interviewed for a food server's position. Ms. Stratford was fully qualified in 1991 to work as a food server at Joe's,⁹ however she was not selected because Joe's hiring personnel engaged in sex discrimination.

7. Ms. Stratford actually earned these amounts: 1990 (Nov. 1st—Dec. 31st): $3,600; 1991: $20,550; 1992: $18,500; 1993 (Jan. 1st—Aug. 31st): $12,000; 1993 (Sept. 1st— Dec. 31st): $0; 1994: $0; 1995: $0.

8. In September of 1993, Catherine Stratford opened a restaurant called "Picnics on the Beach." The business did not generate a profit in 1993, 1994, or 1995. Consequently, Ms. Stratford earned nothing in these periods. The court finds, however, that Ms. Stratford's effort to start her own business represented a good faith effort on her part to improve her financial position and, as a matter of law, constituted a reasonable method of mitigating her damages. Furthermore, the court finds that it was reasonable for her to continue operating "Picnics on the Beach" during the years it was not generating a profit because there existed a reasonable likelihood that it would become profitable in the future.

9. If Ms....