EEOC v. Corinth, Inc., Civ. No. H91-227.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtSamuel L. Cappas, Lesniak and Ruff, East Chicago, IN, for defendant
Citation824 F. Supp. 1302
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. CORINTH, INC. d/b/a Top Notch Restaurant.
Docket NumberCiv. No. H91-227.
Decision Date28 June 1993

824 F. Supp. 1302

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
CORINTH, INC. d/b/a Top Notch Restaurant.

Civ. No. H91-227.

United States District Court, N.D. Indiana, Hammond Division.

June 28, 1993.


824 F. Supp. 1303
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824 F. Supp. 1304
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824 F. Supp. 1305
Alice M. Craft, Michael Hunter Freese, Jo Ann Farnsworth, EEOC, Indianapolis, IN, Donald R. Livingston, EEOC, Washington, DC, for plaintiff

Samuel L. Cappas, Lesniak and Ruff, East Chicago, IN, for defendant.

ORDER

LOZANO, District Judge.

This matter is before the Court pursuant to Fed.R.Civ.P. 52(a), for a decision on the merits following the bench trial conducted in this case. For the reasons stated herein, the Court finds that the Plaintiff, Equal Employment Opportunity Commission ("the EEOC"), is entitled to judgment in this action, and that relief will be awarded consistent with this order.

BACKGROUND

This is an action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), wherein the EEOC is the Plaintiff and Corinth, Inc. d/b/a Top Notch Restaurant ("Corinth") is the Defendant. The EEOC brought this action on behalf of Amy Alexander, the complaining witness, alleging that she was discriminated against on the basis of sex in violation of Title VII, 42 U.S.C. § 2000e-2(a). A bench trial was conducted on this matter, and at the conclusion of the EEOC's case Corinth made its motion requesting involuntary dismissal, which this Court denied on March 25, 1993. Corinth's case was then heard. Having examined the entire record and having determined the credibility of the witnesses after viewing their testimony and demeanor, pursuant to Federal Rule of Civil Procedure 52(a), the Court now enters its findings of fact and conclusions of law.

FINDINGS OF FACT

The EEOC is an agency of the United States of America, charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring this action by § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1). Corinth has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of §§ 701(b), (g), and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g), and

824 F. Supp. 1306
(h), and has continuously been and is now doing business in the State of Indiana, and has continuously had and now has at least 15 employees

Corinth is owned by Chris Boultas and George Katemis, and operates Top Notch Restaurant in Highland, Indiana. Both owners manage Top Notch Restaurant and supervise the employees. Mr. Boultas regularly works during the noon until midnight shift, and Mr. Katemis usually works from midnight until noon.

Amy Alexander was employed as a waitress at Top Notch Restaurant in October of 1989. Ms. Alexander worked full-time at Top Notch, at the rate of $2.01 per hour, plus tips. Ms. Alexander worked various schedules, but most often worked afternoons from 11 a.m. to 8 p.m., or 12 p.m. to 8 p.m., under the supervision of Mr. Boultas. However, she was occasionally supervised by Mr. Katemis when she worked morning shifts.

On November 3, 1990, Ms. Alexander was discharged by Corinth. At the time she was six months pregnant. During the EEOC's case-in-chief, Amy Alexander, testified that on November 3, 1990, she was not scheduled to work, which was strange for a Saturday. After unsuccessfully trying to reach Mr. Boultas by phone, she went to Top Notch at approximately 1 p.m. She confronted her supervisor, Chris Boultas, a co-owner of Top Notch Restaurant, who told her she was not scheduled for further work because she was pregnant. He also told her that it would be dangerous for her to continue working because she was "too big" and "might fall down." Betty Guzman, a friend of Ms. Alexander, also testified during the EEOC's case, stating that she accompanied Ms. Alexander to Top Notch on November 3, 1990, and was present when Mr. Boultas told Amy Alexander that she had not been scheduled for work because she was pregnant. No evidence was offered to rebut this testimony or to contradict this Court's finding that Mr. Boultas made these statements.

Plaintiff's Exhibit 5, the affidavit of EEOC investigator Shirley A. Swaniger, who investigated Amy Alexander's discrimination charge against Corinth, was admitted as evidence. As part of her investigation Ms. Swaniger interviewed the owners of Corinth on January 17, 1991. During Ms. Swaniger's investigative interview Mr. Boultas and Mr. Katemis admitted that they both agreed to discharge Amy Alexander because she was pregnant. Mr. Katemis stated that, "she was pregnant ... and needed to stay home." Mr. Boultas stated that, "Amy was too big to work."

Joint Exhibit 1, Amy Alexander's discrimination charge, and Joint Exhibit 2, a letter from Mr. Katemis to the EEOC, were also admitted as evidence. In paragraph two of Joint Exhibit 1, Amy Alexander stated that,

On November 3, 1990, I contacted the restaurant and learned that I was not on the schedule. On the same date, I went and spoke with Chris (Boultas). Because I am six months pregnant, he stated that it would be dangerous for me to work because I could fall down. On November 4, 1990, George (Katemis) told me I could come back after the baby.

In Joint Exhibit 2, Mr. Katemis acknowledged receiving Ms. Alexander's charge and admitted that he agreed with her statement in paragraph two of Joint Exhibit 1. Mr. Katemis' letter, Joint Exhibit 2, is an additional admission that Ms. Alexander was discharged due to her pregnancy.

Anticipating the contentions of the defense, the EEOC offered evidence that Amy Alexander was competently performing her job when she was discharged. In addition to Ms. Alexander's own testimony to that effect, the EEOC presented the testimony of Cindy Radencich, also a waitress at Top Notch. She testified that Amy Alexander's job performance suffered no noticeable decline in September and October of 1990, prior to her discharge. She noted, contrary to Defendants' contentions that only Amy Alexander needed help from other waitresses and busboys, that all the waitresses received help from the other employees when serving large parties, and Ms. Alexander was no different. This testimony was corroborated by the testimony of Carl Cashman, a busboy at Top Notch Restaurant, who also worked with Ms. Alexander. He stated that he helped all the waitresses with their trays so as to earn

824 F. Supp. 1307
better tips. Mr. Cashman stated that while he helped many of the waitresses carry their trays, he does not specifically remember carrying any of Ms. Alexander's trays, and that in his estimation, her job performance did not suffer due to her pregnancy

Finally, Karen Williams, also a waitress at Top Notch Restaurant who worked overlapping shifts with Ms. Alexander, stated that she did not notice a change in Ms. Alexander's job performance during her pregnancy. She also stated that she and other waitresses often asked the busboys to carry their larger trays, and that this was a common practice at the restaurant.

In order to justify the dismissal of Ms. Alexander, Corinth offered evidence seeking to contradict the EEOC's contention that Amy Alexander was fully able to perform her job at the time she was discharged. First, Kathleen Pierce, a waitress at Top Notch during the tenure of Ms. Alexander, testified that she witnessed Ms. Alexander slowing down during September and October of 1990. Ms. Pierce stated that she helped Ms. Alexander with her trays, but also admitted that all of the wait staff helped each other with their large orders. However, on direct examination, Ms. Pierce stated that she was not present when Ms. Alexander did her side work (coffee and water service, cleaning, and preparation), and that she didn't know whether Amy Alexander took more breaks than were allotted.

Sandra Scheringa Hoenig, also a waitress at Top Notch during Ms. Alexander's employment, testified on behalf of Corinth. Ms. Hoenig stated that her work schedule overlapped with Ms. Alexander's approximately 9 to 13 hours per week, and that in September and October of 1990, she noticed Ms. Alexander slowing down and not properly caring for her station. She also stated that she noticed other waitresses and busboys carrying trays for Amy Alexander. On cross-examination, the EEOC attempted to impeach Ms. Hoenig with her own affidavit, wherein she stated to EEOC investigator Shirley Swaniger, shortly after Ms. Alexander's filing her charge with the EEOC, that Amy performed her job satisfactorily, always did her work, and would often work an extra shift if someone called in sick. However, at trial she disavowed the affidavit, stating that she had signed her name to the piece of paper, but had not read it. This Court finds her story to be suspect, and specifically finds that the testimony of Ms. Hoenig is not credible.

The Court also finds the testimony of both Corinth owners, George Katemis and Chris Boultas, to suffer from problems of credibility, as both were impeached at trial. On the stand, Mr. Katemis stated that before Ms. Alexander became pregnant she was a good waitress, but after she became pregnant he noticed a change in her work habits. He stated that her job performance was down, that she couldn't carry or serve food properly, and that she often asked to go home or asked other waitresses for help. He stated that he never told her that she was fired, but that he did tell her that this was her last week on the schedule and that she would be let off until after the baby was born. Furthermore, on direct examination, Mr. Katemis stated that he received complaints from other waitresses and customers about Ms. Alexander's job performance. However, on cross-examination Mr. Katemis was impeached by his deposition, wherein he stated that he had not received customer complaints regarding Ms. Alexander, and could not recall any specific complaints...

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