Labor & Employment Law Daily Manager’s comment that he ‘didn’t need a Jew working for him’ bolstered plausibility of waiter’s wrongful discharge claims
Friday, May 25, 2018

Manager’s comment that he ‘didn’t need a Jew working for him’ bolstered plausibility of waiter’s wrongful discharge claims

By Marjorie Johnson, J.D.

A Jewish waiter who, after taking a brief hiatus from his job at the airport restaurant, was purportedly overly scrutinized by a supervisor who also delayed paperwork required for his airport badge renewal, and was also ignored by a general manager who eventually terminated him, saying he “didn’t need a Jew working for him,” plausibly alleged religious-based Title VII and race-based Sec. 1981 wrongful termination claims, ruled a federal district court in Illinois. However, his hostile work environment claims were tossed (with leave to replead), as well as his Title VII claims against the individual defendants and his Section 1981 against all individuals except the general manager (Simon v. Elfie’s Canteen, d/b/a Chicago Cubs Bar & Grill, May 22, 2018, Feinerman, G.).

Ignored and avoided. The waiter began working at the airport restaurant in the summer of 2014. After later taking two brief hiatuses—one to pursue another job and the other health-related—he returned to his full-time shift in August 2015. Over the next three months, the general manager purportedly ignored and avoided him “at all costs.” For instance, the manager would pointedly fail to greet him when making his morning rounds and deliberately walk in the opposite direction so as not to interact with him. The manager also regularly purchased coffee for other coworkers but never for him.

Overly scrutinized. In November 2015, the waiter’s airport badge (a prerequisite for working at the restaurant) was up for renewal. A supervisor initially told him that he would have to wait several weeks to complete the relevant paperwork. Then, on November 24, the supervisor told him that he would have to speak with the co-owner’s husband about the badge renewal. The supervisor also began to scrutinize the orders he entered into the restaurant’s computer system. Later that day, he spoke to the co-owner’s husband, who told him to speak to the general manager about the badge issue.

Offensive remark upon firing. When the waiter telephoned the general manager and asked for help in renewing the badge, he purportedly responded, “hell no.” The waiter then asked if he was being fired and the manager told him that he had a “bad attitude” and refused his request for a termination letter for unemployment compensation purposes. The manager ended the call by stating that he “[didn’t] need a Jew working for [him].” Meanwhile, the employee claimed that had an been an exemplary worker with high sales and no record of discipline.

Title VII claims against individuals tossed. The waiter filed this suit asserting Title VII and Section 1981 claims against the restaurant, its two co-owners and their spouses, and the general manager. However, as the employee’s own attorney acknowledged, his Title VII claims against the individual defendants were due to be dismissed with prejudice. He alleged that only that the restaurant employed him and individual people who are agents of the employer cannot be sued as employers under Title VII.

Section 1981 claim proceeds against general manager. Section 1981, on the other hand, provides for individual liability where the defendant is alleged to have taken an adverse employment action against the plaintiff based on their protected characteristic (here, the waiter’s being Jewish). Therefore, since the waiter alleged that the general manager fired him because he did not want “a Jew working for [him],” he stated a plausible Sec. 1981 wrongful termination claim against him. And because he claimed that the manager was acting on the restaurant’s behalf, he also stated a plausible clam against the restaurant as well.

However, his Sec. 1981 claims against the restaurant’s co-owners and their spouses were dismissed without prejudice since he failed to allege that any of them took any adverse action against him, let alone that they discriminated against him because he was Jewish. In fact, he alleged that he rarely, if ever, saw the two co-owners at work, and that he and their spouses had previously participated in several other business ventures together. And while he asserted that one of the spouses told him to call the general manager about the airport badge renewal, he did not claim that the spouse discriminated against him in doing so.

Hostile work environment claims tossed. The court also dismissed his HWE claims without prejudice since the alleged conduct was not actionable. He contended that the general manager went out of his way not to interact with him and treated other waiters at the restaurant more favorably. While that may have been “immature and unprofessional,” it was not sufficiently offensive to have created a HWE for Title VII purposes. His other allegations, including that the day he was terminated, his supervisor gave extra scrutiny to the orders he entered into the restaurant’s computer system, were likewise insufficient.

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