UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
November 15, 1996
FARHOOD AZAR, Plaintiff, against TGI FRIDAY'S, INC., Defendant.
The opinion of the court was delivered by: SPATT
MEMORANDUM AND ORDER
SPATT, District Judge.
This case concerns a charge of national origin employment discrimination brought under Title VII of the Civil Rights Act of 1964. The plaintiff, a former employee of the defendant TGI Friday's, Inc., contends that he was discriminated against and discharged at the TGI Friday's Huntington restaurant because he is of Iranian national origin, as evidenced, in part, by referring to the plaintiff as the "Ayatollah" in a persistent and derogatory manner.
THE TRIAL - FINDINGS OF FACT
The plaintiff Farhood Azar (the "plaintiff" or "Azar") was born in Tabriz, Iran and arrived in the United States on October 9, 1979. He is married and is presently a United States citizen. Azar speaks with a noticeable foreign accent. The defendant TGI Friday's, Inc. (the "defendant" or "TGI Friday's") is a corporation that owns and operates restaurants which serve a "broad spectrum of different diverse foods" including salads, sandwiches, burgers, pasta and baked foods. (Tr. at 276)* . TGI Friday's also owns an affiliate restaurant known as Dalt's in Addison, Texas.
Azar had an extended employment history with TGI Friday's restaurants. The plaintiff first worked for the defendant in its Dalt's affiliate in Addison, Texas as a baker prep cook from September 10, 1982 to May 5, 1984. A baker prep cook prepares the baked goods such as cakes and desserts for use in the restaurant. He was then employed by TGI Friday's in Addison, Texas, again as a baker prep cook, from May 10, 1984 to November 15, 1984. Azar was then employed at the TGI Friday's in Plano, Texas as a baker prep cook from February 27, 1985 to April 30, 1985. Then Azar returned to Dalt's as a baker prep cook from May 2, 1985 to May 23, 1985.
With regard to Azar's first employment in Dalt's, he was disciplined twice for lateness. However, on January 10, 1983, it was noted in his personnel file that he was a "valuable asset to the setup of the salad area. Works fast and organized." (Defendant's Exh. F). On or about May 5, 1984, during a shift at Dalt's, Azar walked out and he was terminated. During his employ at the TGI Friday's at Addison, Azar received a warning for unsatisfactory performance and tardiness (Defendant's Exh. G). While at TGI Friday's at Addison, on October 16, 1984, he was the subject of a "Notation of Incident" in which it was stated "Two hours late for his shift. Action taken warning." (Defendant's Exh. G). Azar was terminated from TGI Friday's at Addison on November 15, 1984 because of "failure to comply with work rules - follow recipes and uncooperative work attitude" (Defendant's Exh. G).
Azar's employment at TGI Friday's at Plano, Texas was terminated on April 30, 1985, after two months on that job, because he walked off his shift (Defendant's Exh. H). His second employment at Dalt's was terminated on May 23, 1985, after 21 days, when he did not arrive for his shift and, when called, "stated he wasn't coming in for work" (Defendant's Exh. I). Azar testified that he was unhappy with the work conditions at Dalt's. Prior to that termination, Azar received a warning and Notation of Incident for poor performance and tardiness (Defendant's Exh. I). Azar testified as to these four successive terminations from the Texas TGI Friday's and Dalt's that he was not harassed at these restaurants and that he "walked out three times" and was fired one time.
The Court finds that the plaintiff tried to conceal his prior employments with TGI Friday's and Dalt's by failing to disclose these positions when he filled out a job application on June 17, 1993 (Defendant's Exh. AR), in which he made other false statements. In addition, on April 19, 1994, Azar filled out another job application in which he again failed to mention any of the four TGI Friday's - Dalt's employments. (Defendant's Exh. AV). The plaintiff explained this failure to reveal his prior TGI Friday's employments by noting that the positions he was applying for were in cost accounting and that, therefore, his "baker prep" jobs would not be relevant.
Azar was hired at the TGI Friday's at Huntington, the restaurant at issue in this case, on July 24, 1989 and he was involuntarily terminated on September 11, 1989. He worked at the Huntington restaurant for approximately one month and 18 days, or 35 working days. He was initially hired as a baker prep cook. He also worked as a fry cook making fried food such as french fried potatoes and fried shrimp. In 1989, at the time of his employment, Frank Kasper ("Kasper") was the General Manager of the restaurant, Lance Wolff ("Wolff") was an Assistant Manager and Terrance O'Deens ("O'Deens") was the Kitchen Manager. General Manager Kasper was in overall charge of the restaurant and "does the hiring and firing" (Tr. at 70). Kitchen Manager O'Deens directly supervised the cooks in the kitchen. However, Azar testified that most of the time, Assistant Manager Wolff also supervised the kitchen personnel.
Azar explained that the term Ayatollah "means the leader who threw away the Shah of Iran" (Tr. at 72). He testified that the term "Ayatollah" was stated by persons in the kitchen of TGI Friday's at Huntington to refer to him in a derogatory fashion. In particular, Azar testified that two days after he was hired, Wolff said to him, "I didn't know he is a fucking Iranian." After that, Wolff started calling him Ayatollah. Azar testified that when Wolff used the term Ayatollah, he did so with hate and anger "in his face. . . like I have a disease." Azar testified that only one other person called him Ayatollah, a cook shift leader named "John", who stopped using that name as soon as Azar told him not to do so.
Azar further testified to this name calling:
Q How often did Mr. Wolff call you Ayatollah?
A Every shift I was working with him.
Q Did he call you any other names or terms?
A Yes, sir.
Q What were they?
A Ayatollah, fucking rocking roller. Ayatollah, assholer.
Q How often did Mr. Wolff give -- call you those names?
A Every time he was reading, and he started calling -- wasn't calling my name, Fred, he was saying Ayatollah, two french fries, Ayatollah, two fried mushrooms, like that, every time he was reading the order.
Q And how long did the use of those two names go on, those names?
A During the time I was employed at TGIF during Huntington.
. . . .
Q And when did you have such conversations with him?
A Well, I tried to ignore him. But one time in the meeting he made fun of my nationality. He made joke of my nationality and everybody laughed.
Q Mr. Azar, I want you to go back a step.
First of all, when was that meeting?
A That was one of the daily meetings. We have everyday meeting before the shift starts.
Q And what did Mr. Wolff say specifically?
A He said, Fred, aren't you glad you are in America, you are not in Iran no more? And he said something, I don't remember. And everybody laughed.
So, when the meeting is over, I called him and I told him, I don't like calling me the name. I don't like making joke of me. My name is Fred.
(Tr. at 73-75).
The Court credits this testimony and finds that these occurrences took place.
Azar testified that, despite his telling Wolff not to call him by that term, he continued to do so. Wolff called the plaintiff Ayatollah for the entire time the plaintiff worked in the Huntington restaurant. Azar denied that he himself used the term Ayatollah to describe himself. The Court credits this testimony. In this regard, the Court finds that Azar did not refer to himself as the "Ayatollah". This was a name fostered on him by the TGI Friday's employees, notably Lance Wolff. The Court notes the following testimony by Azar, which the Court believes:
Q Did you hear him (Kasper) describe Ayatollah as a pet name of yours?
A Yes, I heard that.
Q What was your reaction to that?
A When, yesterday?
Q When you heard him say that was your pet name?
A It wasn't my pet name. I didn't call myself pet name. That's not true.
Q Why not?
A Because this man destroyed my country. I have bad memory from him. Ayatollah Khomeini killed 100,000 people. He destroyed my country. He took freedom of my people in my country and on top of this, he killed my father.
(Tr. at 417).
Azar conceded that he did not speak to General Manager Kasper about the name calling. However, he testified that Kasper overheard Wolff calling him Ayatollah and smiled. The Court credits this testimony.
With regard to the quality of his work at the Huntington restaurant, Azar testified that he was not evaluated. However, he stated that "they used to pat me in the shoulder and telling [sic] me I did a good job. . ." (Tr. at 85). He stated that neither Kasper nor Wolff nor anyone else ever criticized his work. He was paid an hourly wage, which was $ 8.00 per hour. Azar worked different time schedules and worked overtime from time to time. Even though Azar was supposed to check in with his time card, he testified that on many occasions, he was told that the manager would check him in. With his overtime Azar averaged approximately $ 500.00 per week. His benefits included sick leave, medical benefits, vacation and holidays.
As to punctuality, Azar testified that he was late on only one occasion, when there was an accident on the road, and he was 20 to 25 minutes late. He states that he received no written memorandum or oral reprimand with regard to this lateness. This issue was disputed by the defendant. The Court finds that the defendant intentionally and falsely enhanced the lateness issue, as will be explained later in this opinion.
On September 11, 1989 Azar was discharged. He testified that he was fired by Kasper and Wolff. The reason they gave was that he was "slow." Azar stated that he was never told previously that his work was slow, nor did he receive any such notification in writing. In addition, he testified that nothing was mentioned about him being late. The Court credits this testimony concerning the plaintiff's alleged lateness.
Azar was familiar with the contents of the TGI Friday's "Employee Handbook." He knew about the "Open Door Policy" of the company "to treat one another with respect and dignity. . .(and) to prohibit racial or ethnic slurs or racial or ethnic joking among employees." In the event of such discriminatory conduct, the Handbook advised employees to report such activity to their supervisor. The Handbook further relates "should the activity continue, call the Manager of Employee Relations, 1-800-347-5757, ext. 5408 at the company's expense." In addition, the Handbook stated:
This being so, the Company maintains an Open Door Policy. All employees can ask questions of anyone, at anytime, about anything, and receive an answer. It is the employees' responsibility to respond quickly and clearly to questions asked of them, to insure clarity and understanding throughout our organization. You are encouraged to take full advantage of this opportunity, without fear of reprisal. When you have a question or concern, your supervisor is in the best position to respond quickly and accurately. If you want further clarification, speak with any other person in management, regardless of title, with whom you feel comfortable.
Notwithstanding Azar's conceded familiarity with the Handbook, and the above-cited provisions in particular, he made no complaints to his supervisors about discriminatory practice but he did call to discuss this matter with Juanita Nanez, the Director of Employee Relations after his termination.
On August 10, 1989, while working at the Huntington restaurant, Azar was late for work and a Notation of Incident was placed in his personnel file (Defendant's Exh. J). As stated above, he testified that he was late for work that day because "there was a car accident on the road." However, according to the TGI Friday's time cards, the plaintiff was late ten times in the less than two months he worked at the Huntington restaurant. Azar denied he was late except for the one incident on August 10, 1989, described above. The Court does not credit these alleged nine other late incidents. The time cards are marked with the handwritten word "late", written in by Kasper, all apparently at the same time. The words "late" were apparently inserted in the time cards by Kasper after the plaintiff was terminated.
On August 24, 1989, Azar was the subject of another "Notation of Incident" (Defendant's Exh. S). This concerned his "low out-put" and stated "Fred is not being productive. He has to work faster and pick up his pace. Second time he was spoken to." While Azar denied that this incident took place or that Manager Kasper spoke to him concerning this matter, he conceded that Kasper told him, "you can do better."
Azar was terminated on September 11, 1989. The time record indicates that Azar arrived on the job that day at 15:11 (3:11 P.M.) and left at 15:32 (3:32 P.M.). In a meeting with Manager Kasper, he was told that his production was not good and he was "kind of slow." Azar denied that this was true and contends that his production was good and he was not slow.
Cynthia Harris, formerly known as Cynthia Gordon, was employed by the defendant as a line cook from 1987 to March 7, 1992. Harris was terminated by TGI Friday's when she returned from a vacation one day late. She supported the plaintiff's testimony as to the use of the word "Ayatollah" by personnel at the Huntington TGI Friday's. Harris testified that she heard the term "Ayatollah" first used by Assistant Manager Mark Soroka. Then, she stated, the term was "carried on, like a domino effect" by the entire line of cooks and all the managers. She named the managers who used this term as Assistant Managers Lance Wolff, Mark Soroka and John Hugill and Manager Frank Kasper, and "some that left." Harris further testified that the managers used the term "whenever he was on, whenever he worked." She stated that it started to be used by Soroka "like the song." After a few weeks, Azar started "getting a little upset when the term was used . . . he wanted us to stop . . . it never stopped." She heard Azar speak to Wolff on several occasions and tell him that "it bothered him, it offended him," but it never stopped. Harris stated that Manager Kasper was not present at any of these conversations. Harris was asked to describe the manner in which the term "Ayatollah" was used:
Q And when they used this term to describe Mr. Azar, was it said directly to him or was it said to other people?
A I don't know. They would stand at the end of the line.
I have to say this: It was a fun place to work. We were all like family. So it wasn't directed to him. Like when they would come on the shift or whatever, that was a way of like saying, you know, hi, or whatever.
Like we had different names for certain people. It didn't start off like harsh to this man until it started to become upsetting to him. It wasn't like, you, Ayatollah, until after it became upsetting.
Q After it started to upset him, did they ever stop using the term?
(Tr. at 17-18).
Harris further stated that the plaintiff never used the term "Ayatollah" to describe himself or about himself. The Court credits this testimony. Asked to describe the manner in which Azar performed his job, she stated "his food came out good in my opinion, very good."
Harris testified that she was familiar with the defendant's "open door policy" against discrimination and to respect each other and that the policy was followed in the Huntington restaurant kitchen in 1989. Harris received negative evaluations on June 28, 1991, July 8, 1991, July 17, 1991, December 9, 1991 and March 6, 1992. Harris disputes some of these poor performance citations. She was discharged by Manager Kasper on March 7, 1992 for not returning from vacation on time.
In the defendant's case, Juanita Nanez, the TGI Friday's Director of Employee Relations, explained the company's "open door policy," which encourages all employees to complain about any discrimination conduct without fear of retaliation. She reviewed the defendant's "Credo" or philosophy which is to treat all persons with respect and fairness.
In 1989, the plaintiff called Nanez after his termination. He said he was harassed and terminated because of his national origin. Nanez investigated the plaintiff's allegations by reviewing his work records and interviewing the Manager and Assistant Manager at the Huntington restaurant. She concluded that Azar had a poor work history in the company and "there was no harassment and that his termination had nothing to do with his national origin." Nanez based this latter conclusion on the information furnished by the manager that "he (Azar) called himself the name Ayatollah, and in fact, introduced himself as such and would joke about it." As stated above, the Court finds that the use of the term "Ayatollah" was not initiated by the plaintiff himself.
On cross-examination, Nanez testified that Frank Kasper wrote the word "late" on the plaintiff's time cards, and that she relied on Kasper's notations. The time cards indicated that Azar was late ten times as set forth in the Nanez letter to the Human Rights Commission dated December 20, 1990 (Defendant's Exh. AA) as follows:
July 26, 1989 - 2 hours and 45 minutes late
July 30, 1989 - 3 hours and 12 minutes late
August 3, 1989 - 30 minutes late
August 10, 1989 - 25 minutes late
August 21, 1989 - 3 minutes late
August 22, 1989 - 2 minutes late
August 28, 1990 - 13 minutes late
September 1, 1989 - 4 minutes late
September 4, 1989 - 3 minutes late
September 11, 1989 - 11 minutes late
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