Richardson v. Restaurant Marketing Associates, Inc.

• Decision Date: 30 November 1981
• Docket Number: No. C-77-0768 MHP.,C-77-0768 MHP.
• Citation: 527 F. Supp. 690
• Court: U.S. District Court — Northern District of California
• Parties: Pamela Marie RICHARDSON and Earl Simmons, Plaintiffs, v. RESTAURANT MARKETING ASSOCIATES, INC., Defendant.

527 F. Supp. 690

Pamela Marie RICHARDSON and Earl Simmons, Plaintiffs, v. RESTAURANT MARKETING ASSOCIATES, INC., Defendant.

No. C-77-0768 MHP.

United States District Court, N. D. California.

November 17, 1981.

As Corrected November 30, 1981.

Alberta M. Blumin, Dayley & Blumin, Guy T. Saperstein, Farnsworth, Saperstein & Brand, Oakland, Cal., for plaintiffs.

Robert T. Fries, Steinhart, Falconer & Morgenstein, San Francisco, Cal., for defendant.

Robert T. Murphy, Murphy & Storey, Phoenix, Ariz., for Restaurant Marketing Associates, third party plaintiff.

MEMORANDUM OPINION

PATEL, District Judge.

This case concerns race discrimination in employment, and was brought under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. After a hearing on liability, the court requested briefing on several issues relating to damages. A short opinion on those questions was issued, followed by the trial of the damages issues, and briefing on a motion for attorneys' fees.

Part A: Liability

From the hearing on liability, October 28 to 31, 1980, the court made the following findings of fact and conclusions of law.

Findings of Fact

1. This suit was instituted on April 14, 1977 by Pamela Marie Richardson and Earl Simmons against Restaurant Marketing Associates, Inc. (hereinafter "RMA") pursuant to Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1866.

2. Plaintiff Richardson is a white woman who alleges that she was fired by defendant in retaliation for filing a charge of racial discrimination against it with the United States Equal Opportunity Commission.

3. Plaintiff Earl Simmons is a black man who alleges he was fired by defendant and subsequently denied rehire because of his race.

4. Defendant RMA is a corporation organized pursuant to the laws of the State of Pennsylvania and is engaged in the business of managing restaurants, cafeterias and delicatessens.

5. Defendant is an employer within the meaning of § 701(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b).

6. A. Defendant managed the Bank Exchange Restaurant in San Francisco, California from approximately March 31, 1975 through October 15, 1976.

B. Immediately prior to defendant RMA, another company, Szabo Foods, managed the Bank Exchange Restaurant.

C. For a short time immediately preceding March 31, 1975, during a transition period from Szabo Foods management to RMA management, defendant's corporate vice-presidents, Robert Wright and Diane Gallagher, and defendant's new general manager of the Bank Exchange, Bill Brooks, were present at the Bank Exchange.

7. Plaintiff Earl Simmons, at the time defendant RMA took over the management of the Bank Exchange Restaurant, was functioning as the manager of the delicatessen section. The delicatessen was patronized by many white women who worked in the area. Plaintiff Simmons supervised two employees, one white woman and one black woman.

8. A. When general manager Bill Brooks arrived at the Bank Exchange, plaintiff Pamela Richardson, assistant manager of the Bank Exchange, Susan Betz (Foley) and the chef, Everett James Marshall, heard Mr. Brooks frequently refer to blacks as "niggers". Brooks admitted that he used the term "nigger" and that vice-president Robert Wright as well as RMA regional manager, Michael Issip also used the term "nigger" when referring to black people. Susan Foley also heard vice-president Wright and regional manager Issip use the term "nigger" on the premises of the Bank Exchange Restaurant.

B. Assistant manager Susan Betz Foley was told by corporate vice-president Diane Gallagher that she would prefer it if blacks were not hired at the Bank Exchange.

C. Shortly after Bill Brooks' arrival at the Bank Exchange, Brooks told chef Everett James Marshall that he was going to get rid of some of the "undesirables" and that plaintiff Earl Simmons was going to be one of the first to go.

D. Prior to firing Earl Simmons, Bill Brooks stood and watched Simmons working for long periods each day. Brooks would not allow plaintiff Simmons to take his regular breaks and would hound plaintiff by snapping his fingers and clapping his hands in Simmons' face. Brooks was not observed "communicating" with any other employees in this fashion.

E. Bill Brooks informed plaintiff Pamela Richardson that he was "outraged" at what he termed plaintiff Simmons' "flirtatious" attitude with white women and Brooks told Pamela Richardson that plaintiff Simmons "did not know his place."

F. Prior to Earl Simmons, Bill Brooks had not worked with any black person who held a managerial position.

9. On April 2, 1975, a few days after defendant began managing the Bank Exchange Restaurant, plaintiff Simmons was ill but appeared for work at his regular hour in order to unlock the delicatessen so that the other two delicatessen employees who reported to work after him would be able to get into the delicatessen. Plaintiff Simmons waited for the chef to arrive. Plaintiff informed the chef upon his arrival that he was ill and then plaintiff went home.

10. On April 2, 1975, plaintiff Simmons was terminated by defendant RMA. He was replaced by a white man.

11. Defendant's stated reasons for plaintiff Simmons' April 2, 1975 termination (given by defendant's general manager Bill Brooks and recorded on defendant's "Employee Record Card" personnel form which terminated plaintiff effective April 2) are that plaintiff Simmons left work suddenly one morning saying that he was ill, that he did not wait for a replacement and that he then did not call the Bank Exchange for two and one-half days. These reasons are pretexts for intentional racial discrimination in that:

A. As of April 2, 1975 (the effective date of plaintiff's termination, and the date the Employee Record Card was completed stating the reasons for plaintiff's termination), it was impossible that two and one-half days had elapsed since plaintiff had left work in the morning because plaintiff Simmons' time card showed that April 2 was the very morning that he had left work early (ill); and

B. During defendant's management of the Bank Exchange Restaurant white employees had left work suddenly saying they were ill, without obtaining replacements, and were neither fired nor disciplined.

12. In mid-February, 1976, approximately ten and one-half months after plaintiff Simmons was terminated, he ran into defendant's general manager of the Bank Exchange Restaurant, Mr. Brooks, at a bar and inquired whether he could obtain another job at defendant's restaurant. Mr. Brooks informed plaintiff Simmons that an opening was coming up and that he should come in to see the chef about it.

13. The following day Mr. Brooks commented to plaintiff Richardson that he had run into "the nigger who used to work down in the delicatessen" and informed plaintiff Richardson with some derisiveness that plaintiff Simmons had asked for his job back.

14. A. Shortly after that plaintiff Simmons went to the Bank Exchange Restaurant to apply for re-hire.

B. Susan Betz (Foley) was surprised to see plaintiff Simmons at the Bank Exchange again, and to learn from Simmons that Brooks had told him to come in for a job, because, according to Susan Betz (Foley) Brooks was "a bit of a Bigot."

C. While at the Bank Exchange plaintiff Simmons left his phone number with the then executive chef for RMA, Rolf Paul.

D. Rolf Paul took plaintiff Simmons' phone number because you can "never tell" when an opening might come up in the future. Rolf Paul remembered that plaintiff Simmons had specifically asked about a cook's job.

E. After plaintiff Simmons left the Bank Exchange, Rolf Paul told plaintiff Richardson that if she hired plaintiff Simmons he, Rolf Paul, would lose his job.

F. Since plaintiff Simmons had been fired by RMA in April of 1975, there had not been more than one black working at a time in the delicatessen.

G. Rolf Paul had told plaintiff Richardson at some time prior to plaintiff Simmons' reapplying for work, that if you have more than one black person working together in a small area (he was referring to the Bank Exchange delicatessen) "they gang up on you."

15. On March 2, 1976 an opening came up at the Bank Exchange for a cook's job and on or about March 4, 1976 an opening came up in the delicatessen, when a woman deli worker took a pregnancy leave of absence. Plaintiff Simmons was not called about either position and was not hired.

16. Plaintiff was denied re-hire by defendant at the Bank Exchange Restaurant because of his race.

17. During defendant RMA's management of the Bank Exchange Restaurant plaintiff Richardson was employed as the Director of Dining Room Services/Head Waitress. During her employment in that capacity plaintiff Richardson was privy to defendant's general manager's (Bill Brooks) frequent use of racial slurs and derogatory comments about black people. Shortly after RMA personnel appeared at the Bank Exchange plaintiff Richardson was told by assistant manager Susan Betz (Foley) that Brooks would not like it if plaintiff hired black waitresses and in July, 1975 plaintiff was not allowed to hire a black woman as hostess (whom plaintiff Richardson had selected as the most qualified applicant) because of the woman's race. In Spring, 1975 when plaintiff Richardson inquired of vice-president Diane Gallagher regarding which RMA forms she should use to record the race and sex of Bank Exchange employees, which plaintiff Richardson believed were necessary for reports required by federal law, plaintiff was told by vice-president Gallagher not to worry about it, "we don't do those." Defendant has admitted that it did not file EEO-1 reports until approximately one year after this lawsuit was instituted (this suit was instituted in April, 1977). At one point plaintiff Richardson was told by Bill Brooks to fire a white waitress whom he saw talking in the lobby of the Bank Exchange with a black...