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Howard Cohen v. Chln

July 13, 2011

HOWARD COHEN,
PLAINTIFF,
v.
CHLN, INC. AND MARK HINDS, DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Presently before the Court is the Motion for Summary Judgment by Defendants CHLN, Inc. and Mark Hinds. For the following reasons, the Motion is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

This action concerns the alleged discriminatory termination of Plaintiff Howard Cohen, former general manager of the Philadelphia Chart House restaurant, on the basis of his disability. Plaintiff Cohen was initially hired by Landry's Restaurants, Inc. ("Landry's") in 1998. (Pl.'s Resp. Opp'n, Ex. A, Dep. of Howard Cohen, 13:14-25, Oct. 27, 2010 ("Cohen Dep.").) He managed a number of the entity's restaurants between 1998 and 2006, at which time he left for a year to manage a new restaurant. (Id. at 13:19, 19:21). Plaintiff returned to Landry's in 2007 upon the invitation of his former supervisor, Director of Operations Charles Mayer. (Id. at20:16-18.)

Following his return to Landry's on July 30, 2007, Plaintiff was asked to spend six months training a new management team at Charlie's Crab House in Grand Rapids, Michigan. (Id. at 22:3-23, 24:5-8.) On December 28, 2007, Plaintiff was issued a Disciplinary Action Report and suspended for one week without pay. (Decl. of Mark Hinds ¶ 7, Mar. 14, 2011 ("Hinds Decl.").) The Report cited "Unprofessional Behavior" as the reason for the suspension, and stated that Plaintiff had "made some unprofessional comments to some employees and did not act in the best interest of his staff as a leader." (Id., Ex. A.) Plaintiff denies these allegations, but acknowledges the suspension. (Cohen Dep. 34:18-20.) He was then transferred to the Philadelphia Chart House, another Landry's-owned restaurant, one month before his assignment in Grand Rapids was scheduled to end. (Id. at 32:19-22.)

On July 13, 2008, Defendant Mark Hinds, Regional Vice-President of Landry's Management, L.P., and Plaintiff's immediate supervisor, presented Plaintiff with an annual performance evaluation. (Hinds Decl. ¶ 9.)*fn2 The evaluation noted problems with the restaurant's food sanitation, poor Secret Shopper scores, and numerous guest complaints. (Id., Ex. B.) It also stated that Plaintiff needed to improve his organizational skills to prevent recurring issues, and to work on communicating with others with tact and professionalism. (Id.)

Beginning in November of 2008, the Chart House underwent a $750,000 renovation to improve the structure and appearance of the restaurant. (Id. ¶ 11.) Despite these improvements, routine inspections by management personnel in the months following the renovation revealed significant sanitation and maintenance issues. (Id.) Plaintiff acknowledges Chart House's ongoing sanitation issues, but avers that these problems began long before he joined the staff. (Cohen Dep. 36:14-20.)

In January of 2009, executives from Defendant CHLN visited the Chart House, including Howard Cole, Senior Vice-President and Chief Operating Officer of Landry's Restaurant Group. (Decl. of Howard Cole ¶ 4, Mar. 11, 2011 ("Cole Decl.").) These executives were "extremely upset at the condition of the restaurant, finding it to be dirty, dusty, and unkempt." (Hinds Decl. ¶ 12.) Cole advised Hinds that if the restaurant did not improve, someone would be fired. (Cole Decl. ¶ 4; Hinds Decl. ¶ 12, Ex. D.) Hinds asserts that he told Plaintiff of this conversation. (Hinds Decl. ¶ 12.)

Hinds visited the Chart House on April 29, 2009, during which he "observed numerous cleanliness issues, including dusty surfaces throughout the restaurant, dirty carpets, kitchen floors and air vents, mold on walls, improperly stored food, debris under equipment, and a failure to ensure that employees were properly trained." (Id. ¶ 13, Ex. E.) That same day, the company posted a job opening for a new general manager for the Chart House. (Id. ¶ 14.)

In May 2009, the company's Human Resources Department received an anonymous call on the Employee Hotline stating that Plaintiff "did not help the staff, was unwilling to get involved in any issues pertaining to the restaurant, and talked down to the employees." (Hinds Decl. ¶ 17.) The caller also complained that the restaurant's environment was unprofessional and that Plaintiff had made inappropriate comments. (Id.) As a result of this call, Hinds held an employee meeting on May 27, 2009 to determine how the staff felt about their work environment. (Id. ¶ 18.) During the meeting, the staff informed Hinds of "several ongoing equipment and facilities issues, as well as concerns regarding a lack of professionalism among the staff, and their perception that management was not addressing inappropriate behaviors." (Id.) "Specifically, employees advised [Hinds] that one of the managers had required employees to pay for a shortage, which is against company policy." (Id. ¶ 19.) Hinds determined that Plaintiff "knew of the incident but failed to take corrective or disciplinary action." (Id.) After investigating these concerns, Hinds issued another Disciplinary Action Report to Plaintiff for failure to uphold and adhere to company policy, and additional Reports to Plaintiff and the rest of his management team for "allowing an unprofessional atmosphere to exist." (Id., Ex G.)

On June 11, 2009, Hinds gave Plaintiff his annual performance review, which had decreased by two percent since the previous year. (Id. ¶ 20, Ex. H.) The review stated that Plaintiff needed improvement in the following categories: Job Knowledge, Development, Quality of Work, Cooperation, and Work Habits. (Id.) Hinds specifically noted that Plaintiff needed to "develop and maintain a professional work environment, improve on food sanitation and security procedures, and discipline employees consistently." (Id.)

Subsequent inspections in July 2009 revealed continued cleanliness and maintenance issues. (Id. ¶ 15, Ex. F.) According to Hines, the company "continued to receive numerous guests complaints about poor service and the cleanliness of the restaurant." (Id. ¶ 15.) When Hines attempted to counsel Plaintiff about the condition of the restaurant, Plaintiff attributed -- and continues to attribute -- these conditions to improper actions by the staff. (Id. ¶ 16; Pl.'s Resp. Opp'n4.)

Another inspection of the Chart House on August 26, 2009 revealed continuing issues with cleanliness and maintenance. (Id. ¶ 21, Ex. I; Cole Decl. ¶ 5.) In response to yet another failed inspection, upper-level executives exchanged several emails the following day discussing the need to fire Plaintiff. (Hinds Decl. ¶ 22, Ex. J; Cole Decl. ¶ 6, Ex. A.) In an email sent at 6:41 a.m. on Thursday, August 27, Jeff Cantwell, an employee in Development, stated, "Guys, I don't know what we need to do here but it is painfully obvious that this management team will not keep this store clean which excelerates (sic) deterioration and the need for capital repairs. Please advise." (Cole Decl., Ex. A.) At 9:41 a.m., Cole -- whose approval was required to terminate Plaintiff -- responded, "I told them to Fire him." (Id.) At 10:34 a.m. that day, Hinds sent an email to Charles Mayer, stating, "I have to fire [Plaintiff] 911, he is a 12 year GM but I have given him all the direction and systems in the world, he just doesn't care. I will call you today, I need to make this happen today if possible, think about it, I will call you." (Hinds Decl. Ex J.) At some point thereafter, Hinds contacted Jeff Laver, General Manager of the Crab House in Edgewater, New Jersey. (Hinds Dep. 334:4-24; Pl.'s Resp. Opp'n, Ex. F, Dep. of Jeffrey Laver, 47:17-49:1, Jan. 26, 2011 ("Laver Dep.").) During this call, Hinds instructed Laver to report to the Chart House on Saturday, August 29, for Plaintiff's termination and to serve as Interim General Manager. (Id.) A factual dispute exists as to when Hinds contacted Laver.

At 5:24 p.m. the following evening, Friday, August 28, Hinds received an email from Plaintiff stating that he had an appointment with a surgeon that Monday to discuss the possibility of surgery for his "sciatica/ruptured disk (sic) issues." (Hinds Decl., Ex K.) He stated, "My back is now worse than ever, I can barely get up and down the stairs. I may need to get the disc surgury (sic) done, which would put me out of action for a few weeks, we can discuss the best time for this to happen, I may be able to hold off for up to a month if needed, I will have moreinformation on Monday afternoon." (Id.) Plaintiff had been suffering from back problems since the end of April or beginning of May. (Cohen Dep. 124:19-21.) At the time Plaintiff sent this email, he had received two epidural steroid injections to help alleviate his pain, on June 19 and July 2, 2009, but these injections only provided temporary relief. (Id. at 124:19-125:7; Pl.'s Resp. Opp'n, Ex. D.)

Hinds terminated Plaintiff the following day. (Hinds Decl. ¶ 26.) During the termination, Hinds "informed [Plaintiff] that he was being discharged for poor leadership, which included his inability to maintain a clean restaurant, inability to achieve consistent Secret Shopper Report scores, excessive guest complaints, reoccurring poor procedures, and failure to correct issues noted in inspections." (Id.) Plaintiff responded that he was "good at taking a store from shitty to 80 percent, but that [he was] not good at the details." (Cohen Dep. 122:24-123:4.) Plaintiff concedes that nothing was said to lead him to believe that his termination was based upon anything other than his poor performance. (Id. at 149:19-150:4.) He contends, however, that the temporal proximity of his firing and the email he sent Hinds regarding his back issues suggests that he was terminated on the basis of his back condition. (Id. at 139:6-11.)

Plaintiff commenced this action on February 4, 2010. He filed an Amended Complaint on September 24, 2010, alleging discrimination and retaliation on the basis of his disability in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"). Defendants filed a Motion for Summary Judgment on March 15, 2011, and Plaintiff filed ...


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