Kyle Smith and David Mellon’s victory in Labor & Employment Law

August 29, 2011

Sirote attorneys Kyle Smith and David Mellon’s recent victory in a Labor & Employment Law case was featured in the July 23 edition of The Voice, a newsletter of The Defense Research Institute. The article is below:

DRI members Kyle Smith and David Mellon of Sirote & Permutt, P.C. in Birmingham, Alabama, recently obtained a favorable verdict for the defendant, a fast food restaurant franchise, in a Title VII race discrimination case tried in United States District Court in Gadsden, Alabama. The two African-American plaintiffs, an aunt and her niece, claimed they were terminated from employment due to their race. The jury ruled in favor of the defendant restaurant, despite the testimony from both plaintiffs who alleged that two months prior to their termination they overheard the regional manager tell the store manager, “there’s too many blacks in this store and we need to get rid of some of them.”

The employer offered evidence at trial that one of the plaintiffs, a cashier, was terminated for cash shortages and giving away food to customers. Testimony and documents indicated that the other plaintiff, a line cook, was terminated for insubordination, including cursing at her supervisors. The plaintiffs countered with evidence that the employer’s written policies and procedures were not consistently followed in disciplining the plaintiffs and that the defense witnesses gave contradictory testimony regarding the reasons for termination. The plaintiffs also introduced a chart showing that there was a decrease in the number of black employees hired at the restaurant after the statement was allegedly made by the regional manager. However, the defense introduced unrebutted evidence that at least 15 other employees—more Caucasian than black—were terminated from the restaurant for the same or substantially similar misconduct that resulted in the plaintiffs’ terminations.

Ultimately, the case came down to the credibility of the two plaintiffs, as compared to the credibility of the management employees of defendant. Notably, the three managers who testified are Caucasian, and none of them were still employed by the defendant at the time of trial. In fact, two of them had also been terminated for cause. All of the defense witnesses denied that the regional manager made the alleged discriminatory statement. The plaintiffs’ credibility was damaged by their failure to report the statement to anyone for almost two years after it allegedly occurred. Although the plaintiffs alleged they overheard the statement in September 2008, they did not report the statement to anyone connected with the employer during the remainder of their employment through October and November. Further, they failed to reference the alleged statement in their sworn EEOC Charges of Discrimination filed in March 2009. The statement was not even included in their judicial complaint filed in February 2010. Moreover, the first time either plaintiff gave any notice or made any allegation about the alleged statement by the regional manager was in their depositions taken in August 2010. The plaintiffs offered implausible reasons in their testimony as to why they waited so long to disclose the alleged statement.

The presentation of evidence took two full days of trial. On the third day, the parties gave closing arguments and the case was submitted to the jury. The jury deliberated for just one hour on the claims of both plaintiffs before returning a verdict favoring the defense.

Kyle Smith and David Mellon’s victory in Labor & Employment Law

Associated Attorneys

For Businesses

For Individuals