Equal Employment Opportunity Com'n v. Kip's Big Boy, Inc.

• Decision Date: 19 January 1977
• Docket Number: No. CA 3-74-1255-C.,CA 3-74-1255-C.
• Citation: 424 F. Supp. 500
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. KIP'S BIG BOY, INCORPORATED.
• Court: U.S. District Court — Northern District of Texas

424 F. Supp. 500

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. KIP'S BIG BOY, INCORPORATED.

No. CA 3-74-1255-C.

United States District Court, N. D. Texas, Dallas Division.

January 19, 1977.

Joseph W. Sims, Jr., Trial Atty., Cathie A. Shattuck, Atty., Equal Employment Opportunity Comm., Denver Regional Litigation Center, Denver, Colo., for plaintiff.

Philip Wilson, Brady, Drake & Wilson, and Wallace P. Finfrock & David A. Eldridge, Eldridge, Goggans & Weiss, Dallas, Tex., for defendant.

MEMORANDUM OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

Plaintiff Equal Employment Opportunity Commission filed this action on December 26, 1974, against Defendant Kip's Big Boy, Incorporated, alleging several general discriminatory practices as well as specific instances of discrimination against two individuals who had unsuccessfully sought employment with Defendant and three former employees discharged by Defendant. After trial to the Court, it is ADJUDGED that there are no ongoing company practices justifying the injunctive relief requested and that no specific violations of the Act were established by a preponderance of credible evidence.

Plaintiff is the Federal agency charged with the responsibility of enforcing the Equal Employment Opportunity Act, 42 U.S.C. 2000e et seq. (the Act). Defendant, a Texas corporation operating a chain of fast food restaurants, is subject to the provisions of the Act.

Evidence was adduced at trial with respect to specific allegations of employment discrimination affecting five individuals.

(1) The substance of the complaint lodged by Mr. Wilbur Turner, a black male, is that he applied in Dallas for employment as a busboy on June 22, 1971; that he was not hired; and that white persons were hired in busboy positions on or shortly after June 22. The evidence presented at trial, however, persuades the Court that Plaintiff has failed to establish a prima facie case under the formula laid down in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Specifically, the Court finds that there were no busboy positions open when Mr. Turner applied; that while the next busboy employed, on June 24, 1971, was white, he was a former Kip's employee; and that the following busboy hired, on June 28, 1971, was a black whose application was filed earlier than that of Mr. Turner. There is no preponderance of evidence, therefore, to support the allegation that Kip's failure to hire Mr. Turner was based on race; in fact, Defendant's rebuttal of the general allegation of discrimination with respect to hourly employees was so effective that Plaintiff felt compelled to abandon its general allegation that Kip's discriminated against blacks in hourly positions.

(2) Similarly, the complaint of Ms. Shirley Sims, a black female, is that she applied in Dallas on January 19, 1972, for a position as waitress; that she was not hired; and that whites were subsequently hired as waitresses. Again, Plaintiff has failed to establish the elements of McDonnell Douglas v. Green by a preponderance of the evidence. Rather, the evidence indicates that Ms. Sims visited the Zangs Avenue unit of Kip's, asked some unidentified employee about a job as waitress, was told that no vacancies existed, and left without further ado. There is no evidence that Ms. Sims thereafter sought employment with Kip's. It is not even clear under these facts whether Ms. Sims "applied" for employment. In any event, the trial record is devoid of evidence that Kip's discriminated against females in the hiring of hourly employees.

(3) The allegations of Mrs. Dorothy Benton, a black female, are that she was harassed, intimidated, and eventually discharged from her position as a Kip's waitress due to her race. Defendant submitted convincing evidence, however, that Mrs. Benton made frequent billing errors; that she was unable to get along with fellow employees; and that she sometimes dealt with the public in a rude manner provoking complaints from customers. The Court is persuaded that counselling sessions during which Mrs. Benton was made aware of her shortcomings were the only "intimidation" or "harassment" to which she was subjected and that she was subsequently discharged for good cause and without regard to race after being given fair opportunity to correct her deficiencies.

(4) Mr. Almer Holliness, a black male, alleges that he was discharged from his job as busboy because of his race. Based on the evidence presented at trial, however, the Court is persuaded that Mr. Holliness was discharged because of his refusal, without advance notice or explanation, to work his regular shift on December 31, 1971, at which time his services were greatly needed due to the heavy rush of business on that New Year's Eve. It was the uncontradicted testimony of the discharging supervisor, a credible witness, that any employee would have been discharged under these circumstances and that Mr. Holliness' race had nothing to do with the decision.

(5) Finally, Mr. Cecil Whiten, a black male employed as a restaurant manager by Kip's, alleged that he was discharged because of his race. Not only has Plaintiff failed to show discrimination by a preponderance of the evidence, however, but the Defendant has established to the satisfaction of the Court that Mr. Whiten's discharge was for good cause based on reasonable factors other than race. Specifically, Mr. Whiten was frequently hostile toward his co-workers, often unreasonably refusing to follow instructions of his superiors and sometimes being tyrannical in his supervision of subordinates. He declined to...