Levendos v. Stern Entertainment, Inc., Civ. A. No. 84-3051
| Decision Date | 04 October 1989 |
| Docket Number | 84-3053.,Civ. A. No. 84-3051 |
| Citation | 723 F. Supp. 1104 |
| Parties | Katerina LEVENDOS, Plaintiff, v. STERN ENTERTAINMENT, INC., et al., Defendant. Elizabeth LEVENDOS, Plaintiff, v. STERN ENTERTAINMENT, INC., et al., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Kenneth Gormley, Mansmann, Cindrich & Huber, Pittsburgh, Pa., for plaintiffs.
Ronald L. Hicks, Jr., Meyer, Unkovic & Scott, Pittsburgh, Pa., for defendant.
After a non-jury trial, the Court makes the following Findings of Fact, Conclusions of Law, and Judgment:
1. These are consolidated sex discrimination cases under 42 U.S.C. § 2000e-2(a)(1) which provides:
It shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
As to the legislative history of the inclusion of sex as a forbidden basis of discrimination, see Bradford v. Peoples Natural Gas Co., 60 F.R.D. 432, 434-35 (W.D.Pa. 1973).
2. The applicable law and procedure is clearly stated in Dillon v. Coles, 746 F.2d 998, 1002-1005 (C.A. 3, 1984), reviewing in particular the leading cases of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-805, 93 S.Ct. 1817, 1823-1825, 36 L.Ed.2d 668 (1973), and Texas Dept. v. Burdine, 450 U.S. 248, 252-59, 101 S.Ct. 1089, 1093-97, 67 L.Ed.2d 207 (1981). Concerning the doctrine of "constructive discharge," see Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (C.A.3, 1984).
3. Plaintiff in No. 84-3051, Katerina Levendos, of the female sex, is a resident of Pittsburgh, Allegheny County, Pennsylvania. She duly received a right to sue letter after complaining to the E.E.O.C. PX-8 This Court has jurisdiction of the case.
4. Plaintiff in No. 84-3053, Elizabeth Levendos, of the female sex, mother of Katerina Levendos, is a resident of Pittsburgh, Allegheny County, Pennsylvania. She duly received a right to sue letter after complaining to the E.E.O.C. PX-22 This Court has jurisdiction of the case.
5. Evidence was received at a hearing held on June 6, 1988, and after remand in Elizabeth Levendos v. Stern Entertainment, 860 F.2d 1227 (C.A. 3, 1988) on April 19, 20, and 24, 1989 (total of 833 pages). All evidence is applicable in both cases.
6. Defendant Stern Entertainment Inc., is apparently non-existent. Defendant Stern Entertainment Systems, Inc., apparently the proper defendant, is a Pennsylvania Corporation having its principal place of business on the thirteenth floor, Fulton Building, in Pittsburgh.
7. At all relevant times defendant Stern Entertainment Systems owned and operated a restaurant known as "Les Nuages Restaurant", as well as a discotheque known as "Heaven", both located at 105 Sixth Street, Pittsburgh. A part of the discotheque was known as the Orion Club.
Richard Stern was owner and president of the corporation and actively engaged in the business. Herman Hartman, the general manager, reported to him: Hartman's primary responsibility was for the night club, assisted by Robert Davis. Under Hartman was Robert Schilling, assistant manager for liquor, Chef David DeVos, and Elizabeth Levendos, Maitre d' hotel. DeVos and Levendos were co-ordinate, neither being responsible to or for the other, but both reporting to Hartman. Tr. 147 (June 6, 1988); Tr. 154-56 (April 20, 1989); Tr. 75-77 (April 24, 1989) 8. Plaintiff Katerina Levendos in No. 84-3051 was employed at the restaurant, first in August 1980 as a bus girl, then a captain, then a waiter. The position as waitress enabled her to receive tips in addition to the standard minimum wage. Her performance was good and no complaints or reprimands were received. The restaurant closed in December of 1982.
Plaintiff Elizabeth Levendos, in No. 84-3053 went to work at Les Nuages when it opened late in 1979, or early 1980 and when she submitted a letter of resignation on April 22, 1982, had been maitre d' since October, 1981. She was replaced by Robert Ashurst. Tr. 272-73 (June 6, 1989)
9. On July 2, 1982, the restaurant began an early morning breakfast shift, hoping that when the discotheque closed, its patrons would come to the restaurant for breakfast. Plaintiff Katerina Levendos, Robert Cottrell, and Robert Roth were waiters for that shift. Cottrell was drunk and was sent home.
10. At one of the tables which Cottrell should have been serving there were customers. Plaintiff took their order, but before it was ready to be served the customers left.
11. Plaintiff was subsequently summoned to the Orion Club area, where Robert Ashurst, who had replaced Elizabeth Levendos as maitre d' hotel, and Herman Hartman, the general manager, were seated at the bar with partially full glasses of light brown fluid in front of them. Tr. 69-70 (June 6, 1988) Ashurst told her she was being fired. He said the customers had complained that she had rudely called them profane epithets. Plaintiff was upset and cried and wanted in writing the names of the customers and the reason for being fired. Thereupon Ashurst and Hartman called plaintiff profane epithets and physically escorted her to the elevator. Plaintiff was angry and smashed a glass bread and butter plate on the floor. Ashurst returned to the kitchen and told her to return Tuesday, the next working day, to discuss whether or not she was really terminated. Tr. 23-28 (June 6, 1988)
12. On Tuesday, Ashurst and Hartman gave her a memorandum dated July 6, 1982, stating reasons why she had been fired. This was Plaintiff's Exhibit 2, Defendant's Exhibit B. It had been dictated by Richard Stern Tr. 245-46 (June 6, 1988). Plaintiff testified that she was not given a copy of the memorandum, and that it was signed only by Ashurst and Hartman. Tr. 30 (June 6, 1988) As received in evidence it bore also the signature of Robert Davis, assistant manager of the Stern operation, who testified that "the three of us, we decided to protect ourselves." Tr. 207 (June 6, 1988)
13. Accordingly the Court as trier of facts and credibility of evidence, rejects the accuracy of PX-2, DX-B, it being a document prepared simply for expediency in case of potential litigation — pour les besoins de la cause — as European jurists would say. The Court finds that the legitimate reasons advanced are pretextual and finds for plaintiff on the third step of the McDonnell Douglas schema, and on plaintiff's ultimate burden of persuasion finds for the plaintiff.
14. Richard Stern was not involved in the case of Katerina other than as author of PX-2. The corporate defendant is liable only on the basis of respondeat superior, or for hiring an improper person as supervisor, or for failure to supervise. The actual discharge was by Robert Ashurst. As maitre d' hotel he had authority over restaurant personnel Tr. 167 (April 20, 1989). Hartman was merely drinking with Ashurst when Ashurst fired plaintiff, and assisted in vigorously escorting her from the Orion Club area. Hartman did not witness plaintiff's alleged behavior towards the customers on July 2, 1982, but relied on Ashurst's representations when he signed Exhibit 2. Hartman's deposition is therefore not primary evidence; there was no testimony from Ashurst.
15. Many employees and customers of the restaurant were confessedly and reputedly homosexual, including Ashurst and Hartman. Plaintiff's contention that Ashurst disliked women and hired fellow homosexual males, and therefore discharged plaintiff, is not persuasive. Tr. 75, 84, 330 (June 6, 1988)
16. However, the Court finds that Ashurst's professional opinion was that women should not be waiters in a high-class restaurant, but men wearing tuxedos present a better image. As maitre d' he knowingly discriminated e.g. by disparate treatment of females in hiring and by assignment of tables with large parties and lucrative tips to male waiters, and in other practices. When he replaced Elizabeth Levendos as maitre d' there were two female waitresses on the wait staff at Les Nuages; after the discharge of Katerina Levendos there were none, and the restaurant closed soon thereafter, before there was occasion to fill the vacancy created by her discharge. PX-26, pp. 25-26, 28, 30, 72
17. But the Court does not accept sex as a bfoq (bona fide occupational qualification) for waiters in a high-class restaurant. Such an opinion or practice would frustrate the purpose of the anti-sex discrimination statute. The Court takes judicial notice that Pittsburgh's newest hotel, the Vista, (where the Prince of Wales was entertained during a recent visit to Pittsburgh) operates high-class restaurants; and that at a lawyers' dinner at the Vista the waiters were women, who were not in uniform of any kind, but apparently wearing their street clothes. The Court rejects the bfoq defense, and holds defendant liable for the intentional sex discrimination against plaintiff under agency principles.
18. The appropriate remedy is to award plaintiff what her adjusted earnings would have been from July 2, 1982 to the date in December 1982 when Les Nuages restaurant closed and went out of...
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