Meinelt v. P.F. Chang's China Bistro Inc.

• Decision Date: 27 May 2011
• Docket Number: Civil Action No. H–10–0311.
• Citation: 43 NDLR P 89,787 F.Supp.2d 643,18 Wage & Hour Cas.2d (BNA) 1082,94 Empl. Prac. Dec. P 44206,24 A.D. Cases 1188
• Parties: Jason MEINELT, Plaintiff,v.P.F. CHANG'S CHINA BISTRO, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

787 F.Supp.2d 643

94 Empl. Prac. Dec. P 44,206

18 Wage & Hour Cas.2d (BNA) 1082

24 A.D. Cases 1188

43 NDLR P 89

Jason MEINELT, Plaintiff,

v.P.F. CHANG'S CHINA BISTRO, INC., Defendant.

Civil Action No. H–10–0311.

United States District Court,S.D. Texas,Houston Division.

May 27, 2011.

Paul Robert Harris, Katherine Louise Butler, Butler and Harris, Houston, TX, for Plaintiff.Joseph G. Galagaza, Jackson Lewis Llp, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

In this disability discrimination case, Jason Meinelt has sued his former employer, P.F. Chang's China Bistro, Inc., for firing him after he told his supervisor that he had a brain tumor. Meinelt alleges that P.F. Chang's violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. This Memorandum and Order addresses two motions filed by P.F. Chang's:

• P.F. Chang's motion for summary judgment on both claims. (Docket Entry No. 30). Meinelt responded, (Docket Entry No. 34), and P.F. Chang's replied, (Docket Entry No. 37).

• P.F. Chang's motion to exclude the testimony of Meinelt's economic damages expert, Kenneth Lehrer. (Docket Entry No. 29). Meinelt responded, (Docket Entry No. 33), P.F. Chang's replied, (Docket Entry No. 35), and Meinelt surreplied, (Docket Entry No. 36).

Based on the record; the motions, responses, replies, and surreply; and the relevant law, this court denies the motion for summary judgment and the motion to exclude. The reasons for these rulings are explained in detail below.

I. The Motion for Summary JudgmentA. The Summary Judgment Record ¹

Meinelt was a manager at the Westchase P.F. Chang's in Houston, Texas from September 2005 until he was fired on June 11, 2009. P.F. Chang's contends that it fired Meinelt for improperly adjusting restaurant workers' hours. He claims the company fired him because he told his supervisor he had a brain tumor just three days before.

Meinelt began working for P.F. Chang's in 2004. (Docket Entry No. 30, Ex. 2 at 10). He was promoted to manager in September 2005. ( Id.). Meinelt reported to Michael Brown, the “operating partner,” at the Westchase restaurant. ( Id., Ex. 1, ¶ 2). Brown oversaw the day-to-day performance of all the restaurant's employees. ( Id.). Glen Piner supervised Brown. Unlike Brown and Meinelt, Piner lives and works in Dallas. ( Id.). He oversees five P.F. Chang's locations in the Dallas and Houston areas. ( Id.). Piner reports to Arthur Kilmer, a regional vice-president for the company. ( Id.).

Among Piner's duties is a semiannual financial audit of each location he oversees. On May 29, 2009, Piner notified Brown by e-mail that he would audit the Westchase restaurant on June 10. (Docket Entry No. 30, Ex. 1, ¶ 7; id., Ex. 1, Ex. 1). The audit procedures include a random sampling of edits made to employees' time entries for checking and clocking in and out. At the Westchase restaurant and other restaurants Piner oversees, hourly employees clock in using their identification numbers at any of several terminals in the restaurants. (Docket Entry No. 30, Ex. 1, ¶ 5). The employees use the same terminal to clock out at the end of the shift. ( Id.). Before tipped employees clock out, they must check out. ( Id., ¶ 6; id., Ex. 2 at 29). To check out, the tipped employee enters the evening's tips, prints a check-out slip, and delivers the slip to the manager on duty. ( Id., Ex. 1, ¶ 6). Only after checking out should a tipped employee clock out. ( Id.). When an employee forgets to clock in or out, the manager is responsible for editing the time entries to show the hours actually worked. ( Id.). These changes appear in an “Edited Punches Report.” ( Id.).

It is P.F. Chang's stated policy, consistent with federal and local law, to compensate hourly employees for all hours worked. The Manager's Employee Handbook, which Meinelt received, states: “Hourly Employees are to be paid according to state and federal Wage and Hour Guidelines. It is therefore important that the management team ensures compliance with such laws to ensure that Employees are paid properly and in a timely manner for all hours worked.” ( Id., Ex. 5, Ex. 1 at PFC 00635). The Employee Charter, which is posted at each P.F. Chang's restaurant, state: “Your Management Team will: Pay employees for all hours worked.” ( Id., Ex. 1, Ex. 1). Piner e-mailed his operating partners periodically to remind them of this obligation. For example, Piner e-mailed his operating partners on December 10, 2007 about the importance of accurate timekeeping:

I just want to pass along a WARNING TO ALL!!! If I hear of any Man[a]ger/Chef allowing an hourly employee to work off of the clock or going back and editing their hours, is grounds for termination!!! Also, it is against the LAW. I can look at each and every one of you square in the eyes and honestly say I have NEVER EVER done that in my career in this industry!!! I hope this practice is [not] going on in any of my restaurants!!! I have not heard anything, but I just want to pass [a]long my feelings on this type of behavior and how I feel! Also, it is against company policy!!

( Id., Ex. 1, Ex. 2). Eight days before the Westchase audit, on June 2, 2009, Piner sent Brown an email stating, “We have got to have that talk with Chefs about backing out clock in times, they will lose [their] jobs if this continues!” ( Id., Ex. 1, Ex. 4).

P.F. Chang's policies and procedures anticipate and allow managers' edits to employees' time entries. A sample closing checklist updated January 23, 2009 recommends to managers that they “[c]heck the POS to be sure all Employees are clocking in and out at the correct time. Monitor this through the end of the shift and edit incorrect times if needed.” (Docket Entry No. 34, Ex. 6 at PFC02216). In his deposition, Piner described circumstances in which it would be appropriate to edit employees' time entries for clocking in and out:

[T]here's going to be edits every day.... There's good edits ... that really are relevant. People forget to clock in every day, people get to clock out. People may go sit down and eat, they forget. Things happen. It's going to continue to happen forever.... [U]nfortunately, it's part of being in our industry, I guess.

( Id., Ex. 5 at 146; see also id. at 73). Meinelt testified that consistent with the practice Piner described, when an employee would leave the restaurant without clocking out, Meinelt would call the employee and record the time the employee reported leaving. ( Id., Ex. 1 at 20).

On June 8, 2009, Meinelt was diagnosed with a brain tumor. ( Id., Ex. 2, ¶ 4). He told Brown the same day. ( Id.). Brown testified that Meinelt told him that surgery would probably occur in mid-August and that he could be out six to eight months. ( Id., Ex. 7 at 86–87). Brown testified that he notified Piner “immediately.” ( Id. at 86). Piner denies that he knew about Meinelt's tumor until he met with Meinelt three days later to fire him. (Docket Entry No. 30, Ex. 4 at 109–10).

Piner began his audit two days later, on the morning of June 10, 2009. He reviewed a random selection of edited punches between May 22, 2009 and June 1, 2009. ( Id., Ex. 1, ¶ 8 & Ex. 6). Some of the reports showed employee clock-out times before their check-out times. ( See, e.g., id., Ex. 7 at PFC01564). Piner explained why the audit results led him to conclude that the edits were improper:

I found that there was a very common practice that had shown up on a select range of dates that had shown consistently patterns of multiple employees having times backed out one hour at a time exactly.

From there, I went and compared checkout slips to match the actual clock-out-time that had been edited, which was alarming to me because the clockout was prior to when their checkout was actually ran. At this point, I ran an audit report which caused even more alarm that the restaurant closes at—I believe it closed at 10:00 at that time. It may have been 11:00. We had changed it. I don't remember. But then I noticed that there was a common practice going on that edit punches at 12:24 or 25 that night it—that's not usual for multiple employees. That was not matching up.

( Id., Ex. 4 at 50–51). Piner revisited the issue later in his deposition:

When I go through there and select a range of dates, things happen. Employees forget to clock out. Employees don't clock in. It's not uncommon practice to alter or edit a time. What would be alarming or concerning is when you see three, four, five employees exactly one hour, that raises a red flag. If I see a minute or two minutes or 15 or 17 or 20 or even 30, honestly, there's probably some part of that that goes to that, that says, you know what, they probably forgot to clock out.

When you see the practices that there is, in a row, multiple employees and it's exactly one hour, I'm sorry, ... I've been managing restaurants 20 years, I've never seen anything like that. That's not common.

( Id. at 57–58). Piner testified that his conclusion that Meinelt had improperly edited employees' time resulted from the number and nature of the edits, not from talking to individual employees to ask what time they had actually begun or ended work on a particular day. (Docket Entry No. 34, Ex. 5 at 73). Piner testified that after consulting with Kilmer and P.F. Chang's human resources department, he decided to fire Meinelt the next day. ( Id., Ex. 4 at 101, 104–07).

Meinelt testified that he was “completely baffled” when Piner told him that he would be fired. (Docket Entry No. 34, Ex. 8, ¶ 6). Meinelt told Piner that editing time “was a practice ... that was very loosely based, that everybody did it, all the other managers did it, the manager before me did it.” ( Id., Ex. 1 at 21). Meinelt testified that Piner told him he would be fired because he “did it more” than other employees, but Piner would not explain what he meant by saying that...