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November 22, 1985


The opinion of the court was delivered by: SWEET


The defendants in this action, Albert L. Bonfanti III ("Bonfanti"), Fast Food Operators, Inc., d/b/a Popeyes Famous Fried Chicken and Biscuits ("FFO"), Hyman Schifrin ("Schifrin"), Alan Altman ("Altman"), Stanley Ratner ("Ratner") and Steven Roman ("Roman") have moved for summary judgment dismissing the complaint pursuant to Fed.R.Civ.P. 56. For the following reasons defendants' motion will be granted in part and denied in part.

Pleadings and Facts

 Plaintiff Albert P. Abel ("Abel") filed this action in December, 1984 after being fired from his position as vice president of FFO. Abel, who is a white male employee, alleges in his complaint the violation of his civil rights, 42 U.S.C. §§ 1981, 1982, conspiracy to violate his civil rights, 42 U.S.C. § 1985, illegal wiretapping, 18 U.S.C. §§ 2511, 2520, breach of contract, fraud, defamation and tortious interference with his business and occupation.

 Abel's complaint is based on the following set of facts drawn from the affidavits submitted with this motion. The facts, of course, must be construed in a manner most favorable for the party resisting summary judgment.

 In January, 1984, the then-president of FFO, Aaron R. Fodiman ("Fodiman"), resigned. The Board of Directors of FFO hired Bonfanti to replace Fodiman as president and chief financial officer of FFO. Abel was then, as he had been since April, 1982, FFO's Director of Operations. As such, abel was responsible for the daily operation of the ten Popeyes' Fried Chicken restaurants, and the hiring, firing and training of all management and supervisory personnel.

 1. Alleged discriminatory acts

 Around January 6, 1954 Bonfanti met with FFO's managers and supervisors to discuss his position as president of the corporation and the policies he intended to implement. Bonfanti stated to those managers and supervisors that FFO would no longer permit the hiring of individuals whose religious beliefs required the wearing of head coverings or beards. While this policy had not been enforced by the previous management, it was required under the pre-existing FFO Employee Guide. Abel contends that Bonfanti stated privately to him that FFO should cease the practice of hiring non-Americans.

 Abel asserts that FFO's Middle Eastern managers were extremely upset at this new discriminatory policy that attacked their religious beliefs and wrote a letter to the Board of Directors expressing their fears and their support for Abel. These letters, however, do not include any indication of Bonfanti's alleged discrimination or of any discriminatory practices at FFO. Instead, they establish, at most, a strong personal allegiance to Abel and disappointment that Abel was not selected to become president of FFO.

 On February 3, 1984, just two weeks after Bonfanti joined FFO, Abel tendered his written resignation of the entire Board of Directors of FFO, allegedly because he objected to Bonfanti's racially discriminatory policies regarding the Middle Eastern and other non-white managers and supervisors. The other reason cited by Abel for his tendered resignation was his frustration with overseeing Bonfanti's expenses in his duty to act as a comptroller over the FFO operations. At a meeting with Schifrin and Altman, Abel was persuaded to remain with FFO and was allegedly promised that he could be terminated only for cause.

 In March and April of 1984, Abel alleges that Bonfanti discriminatorily ordered the firing of three Sikh Indians. With regard to these three Indian managers, Messrs. Dhawan, Singh and Chawla, the uncontradicted evidence establishes that each of these managers' personnel records contained reprimands by store supervisors which requested (requested) that the managers be terminated. Mr. Ajit Dhawan was fired on March 8, 1984 after verbal and written reprimands from his store supervisor, Beverly Levinson. Mr. Gucharran Singh was reprimanded by his supervisor Malek Sulaiman on May 7, 1984 and after several more reprimands, quit voluntarily on June 11, 1984. Finally, Mr. Surinder Singh Chawla was reprimanded in several occasions by supervisors Vikvam Bhalla and Malek Sulaiman and was finally fired on July 30, 1984.

 It is further uncontested that after Bonfanti began working as president of FFO and throughout the time period of Abel's complaint, FFO continued to hire a very high percentage of minority management employees. Thus, out of 27 management employees hired between January 26 and October 1, 1984, four were white Americans, six were black, six were from Latin America or the Caribbean, and eleven were from Pakistan or India.

 Abel asserts that three of the white Americans and two light-skinned Latin Americans were hired as a result of Bonfanti's preference and favoritism of "whites" over "non-whites." However, each of these employee candidates were previously associated with Bonfanti in the food business which he operated prior to joining FFO. Moreover, several of those forced hires were soon fired either by Abel or Bonfanti. Abel has also submitted evidence that the minority management employees earned on average approximately $100 less per week than the white and Hispanic managers. At the same time, however, it has been established that, within the small sample examined by Abel, the white and Hispanic employees had almost eight years of prior experience in the food services business while the minority employees had only about four years of prior experience.

 2. Alleged wiretapping acts

 Around February, 1984, Bonfanti installed a voice activated tape recorder which could continuously record all calls on one of FFO's four telephone lines. The recorder was concealed beneath Bonfanti's office desk, and he did not reveal its existence to any subordinates. Bonfanti indiscriminately taped conversations placed on that telephone line. In April, 1984, Abel learned of the existence of this tape recording device from another employee and having found the device under Bonfanti's desk, removed one tape. Abel brought the tape recording to FFO's in-house counsel, Altman, who destroyed the tape recording and advised Bonfanti that he should discontinue his practice of tape recording calls placed over that line. Upon the uncontradicted affidavit of Bonfanti, it appears that Bonfanti immediately disconnected the tape recorder. Abel made no further complaints about any wiretapping, but claims to have seen the recording device in Bonfanti's office on October 2, 1984, the day of his dismissal.

 3. The dismissal

 Over the months following the withdrawal of his resignation in February, 1984, Abel allegedly discovered numerous blatantly illegal practices and acts by Bonfanti including deliberate misrepresentations on an SEC filing, fraudulent insurance claims, fraudulent expense vouchers and the recruitment of an employee of FFO's franchise to engage in industrial espionage. ...

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