December 14, 2012
U.S. Equal Employment Opportunity Commission
131 M Street, NE
Washington DC 20507
Re: Alfred David Davis v. Slacker Dan
Dear Sir:
This letter represents the statement of position of Slacker Dan, the respondent in the above captioned case. The charging party, Alfred David Davis, alleges that he was discriminated due to his ADD disability on December of 2012. This allegation is without merit and should be dismissed because: (1) the complainant did not meet their duties and responsibilities as a manager according to the employment terms; (2) he did not make the management aware of his disability during the hiring and employment period. Therefore, this charge should be dismissed in its entirety.
Facts
Background
Dan’s restaurant is a for profit business, that offers gourmet and continental dishes. The complainant joined the restaurant in August of 2012 as the Chief Chef and Kitchen Manager. He left the restaurant in November 2012.
In August 2012, the Restaurant needed to hire a Chief Chef and Kitchen Manager
In August 2012, the owners and named partners of the restaurant, Slacker Dan and Wags, sought to hire a Chief Chef and Kitchen Manager. The restaurant hired Alfred David Davis after a successful interview with 20 applicants. The duties and roles of Davis as a Chief Chef entailed the direction and planning of food preparation, and various cooking activities in the restaurant. This also entails the consultation and understanding of food requirements with clients, the planning of menus, and making sure that food items met quality standards. In addition, as a Chief Chef, they were responsible for the estimation of the requirements of food, food costs, and labor. They were also responsible for the supervisions of the specialist chefs, cook chefs, and sous-chefs, the arrangement for the purchase of food ingredients and kitchen appliances.
As a kitchen Manager, He was required to maintain and manage all kitchen related third party contracts and administration. Maintain and manage correct staffing levels, make use of food development plan to improve the sales margin and thereby the profitability of the restaurant, and assist in the attainment of financial targets set for the restaurant. Maintain the correct food ordering, and stock levels, including kitchen related materials, and manage wastage by correct measurement of products. They have the duty of adhering to restaurant procedures and policies, and carry out instructions given by head management.
Alfred David Davis, did not meet their role and duties as Chief Chef and Kitchen Manager
Alfred David Davis was a great chef that created new tastes and smells that invigorated customers, dinner covers boomed.
However, Davis did not meet his management duties and responsibilities. Davis paid too much attention to the preparation of food, leaving management, and administration duties to fail. Davis would fail to get the payroll on time causing late payment to employees and complaints from disgruntled employees. Davis would also forget to make shift schedules creating confusion in workplace, poor labor supply at peak times, and high labor supply during off-peak hours.
In addition, he would not order supplies from the distributor on time, causing a lack of foods in the menu, poor stock levels creating shortages, and causing poor food ordering. The lack of correct food requirements ordering resulted in food costs higher than prices at 67%, creating a large unacceptable loss for the restaurant. These poor kitchen management practices were against the business strategy and objectives of the restaurant.
Davis did not change their administration and kitchen management practices following the repeat advice and discussions with Dan, the owner and named partner in the restaurant. Davis repeatedly held to their belief that the only thing that mattered was the quality of food. Dan then gave warnings, to Davis concerning his managerial and administration duties in the kitchen.[1]
Davis Quit his Job
Following his refusal to meet his managerial and Chief Chef Duties, and responsibilities, Dan took away his managerial duties and gave them to Wags. This led to Davis to get angry, and willingly quit the job. Therefore, Dan did not fire Davis but Davis walked away from his duties as the Chief Chef and Kitchen Manager without consultation. Davis quit his job and abandoned his duties that were in violation of the restaurants policy and standards. Upon employment, the restaurant requires all employees to meet their duties and be at the workplace on time and on duty unless stated otherwise with the consent of management. Davis did not make any formal notification that he was resigning, therefore, his conduct violate the restaurants rules and regulations.
The Restaurant was not Aware Davis had ADD
Davis did not indicate he had ADD during hiring or during the employment tenor. The complainant did not make it aware to the management that he had ADD even when discussions over the issues of management arose. In the months that Davis worked in the restaurant, he did not mention to anyone that he had ADD or any other disability. Therefore, the manager did not discriminate him for his disability since he was not aware that Davis had ADD. At no time during his hiring or while working did Davis indicate that any impairment caused interfered with his job such that it would draw the attention of others.
The Restaurant does not Discriminate against Add or any other form of Disability
The restaurant does not discriminate ADD or any other form of disability, as it has an equal employment opportunity for all regardless of race, creed, ethnicity, color, or language. The restaurant applies equal employment for all employees as per the Americans with Disability Act (1990). The restaurant does not discriminate persons with physical or mental impairment. However, the restaurant will not hire an employee with a disability that will impair their abilities to work creating an unsafe working environment, especially given the hazardous nature of the kitchen. Moreover, the restaurant will not hire or retain an employee with a disability that causing conduct that is contrary to the policy and standards of the restaurant or that puts the life of other employees and clients in harm’s way.
Conclusion
Davis was not wrongfully discharged from the restaurant. Davis quit his duties and responsibilities as the Chief Chef and Kitchen Manager, prompting the management to find a replacement. This is after the management repeatedly requested him not to neglect his management and administration duties, to which he replied his focus was on preparation and presentation of quality food. Since, he could not meet managerial duties, which caused problems, chaos and losses to the restaurant, a manager was sought to take up the management duties. Therefore, Davis was not fired, but was given an opportunity to continue working as the Chief Chef without the administration duties. However, this aggravated him, and led him to walk away and quit his job. Finally, two days after he quit, he filed a disability discrimination claim, without further consultation with management. Moreover, his claim of disability had not been indicated to the management upon his employment, or during the course of his work. Therefore, the complainant presents no evidence that the restaurant’s management had cause for discrimination.
ARGUMENT
Dan and the Restaurant were not aware of Davis’s Disability
Davis claim for disability discrimination is based on four claims: (1) He is disabled since he has attention deficit disorder; (2) he is qualified for the job; (3) he was fired; and (4) a non-disabled person was hired.
The first statement alleges that he was discriminatory fired for he was disabled from ADD is not true. This is because in no case since the complainant did not in any manner indicate that he was disabled, since according to the Americans with Disability Act of 1990, did not present any mental or physical impairment that limited his activities in the workplace. In addition, Davis did not have any credible record to indicate his disability, and he has never been regarded as impaired.[2]
Davis was not discriminated in his hiring or employment as a disabled person, since he was hired based on his qualifications. During the employment period, the restaurant management recognized Davis’s qualification as an excellent Chef, and noticed his negligence of his duties and responsibilities as a manager. At no point during the employment tenor did the management discriminate against his work as a disabled person. Dan qualified Davis as a capable chef, who could meet and carry out the functions of his job, use appliances and kitchen equipment effectively. Dan established that Davis could perform his duty and role of a chief chef, working with kitchen appliances, therefore, in no way was he treated as a disabled person.
In the ADA framework section 501, disability is any condition that makes the person unable to do their job, and therefore, an employer does not have to hire or retain that person. Dan was not aware that Davis was disabled, and hired him on his qualifications as a Chef, therefore, Dan did not have a cause to not hire or retain him. The fourth claim made by the complainant that he was fired, and a non-disabled person employed is false. Dan opted to relive Davis of his management duties and leave him with the duties of a Chef since he had proven exception good in preparation of quality food. Dan did not fire Davis, but assigned management responsibilities to Wags to prevent further losses to the business. This action made Davis angry leading him to quit on his own recognizance.
Davis Was a Terrible Manager
In the second argument, Davis claims that he is qualified for the job. Dan established that Davis was qualified for the job, and hence hired him for the role of the Chief Chef and Kitchen Manager. According to the Americans with Disability Act section 501, Dan fired Davis for his inability to perform his duties as a qualified Chief Chef and according to the standards of the restaurant.[3] Davis proofed to be capable in his duties as an excellent Chef, who made good meals. However, Davis completely failed in meeting his duties and responsibilities according to the terms of employment and standards of the restaurant. The management as unfit for the management positions identified Davis since his inability to perform his duties also affected other employees. Following his workplace habits, Dan established that Davis was not a qualified Kitchen manager and could not fulfill his management duties as a Chief Chef.
As the Chief Chef and Kitchen Manager, Davis was expected by the restaurant to manage and maintain the correct staffing levels and administration duties. Davis failed in this for often he did not create and maintain work shift schedules causing confusion in the labor supply. At the same time, Davis often prepared or failed to prepare the payroll causing a delay in payment of employees.
This is because, Davis did not meet the requirements and standards of the restaurant, which required him to make estimations of the requirements for food, food costs, and labor requirements. Davis did not meet the requirement of a manager as the responsible for the arrangement of the purchase of foods, correct food ordering, stock levels, and management of waste. Davis did not order for foods from the distributor on time and did not keep proper inventory records, causing lack of common and basic food ingredients in the menu. His mismanagement of the food requirements, ordering, and menu preparation was causing losses of close to 67%.
As an employee of the restaurant, Davis was expected to adhere and follow the policies and procedures of the restaurant, while following the instructions of the head management. Davis failed in this duty for he did not meet his Chief Chef and Kitchen management duties and responsibilities. In addition, Davis did not heed to the discussions with Don concerning the negligence of his management duties, as he insisted on maintenance of food quality over management. Davis did not heed to the warnings from management concerning his actions, which were causing massive losses to the restaurant contrary to the business’s profit strategy.
Therefore, there is no Prima Facie case of Disability Discrimination.
In Brohm V. JH Properties, Inc. 1998, after the ADA analyzed the case according to its framework, it established that the hospital conceded that the complainant was a qualified individual with a disability, but contended he was not terminated solely for his disability. The doctor had urged to the Sixth Circuit Court to adopt the approach of allowing an employee to establish that there were fired solely for the reason of their disability, if they can prove that they were fired for conduct related to their disability. The Sixth Circuit identifies that the hospital had direct evidence that the doctor was sleeping on the job, a conduct that rendered him unqualified for perform his duties.
Therefore, this argument sites there is no prima facie case of disability discrimination, since the restaurant has evidence that Davis’s negligence of managerial duties and refusal to act on administrative work rendered him unqualified. In no instance did the restaurant relate his lack of qualifications as a Chief Chef and Kitchen Manager as related to his ADD disability. This is because at no time at hiring or during the employment did Davis indicate he was disabled. In Brohm V. JH Properties, Inc. 1998, the Sixth Circuit found that there was no foundation to conclude that the doctor was terminated by the hospital because of his chronic sleep deprivation, when the institution was not even aware of the doctor’s condition. Therefore, in the same manner, the EEOC cannot conclude that there is a foundation that the restaurant terminated Davis due to his attention deficit disorder, it was not aware that he had the condition.
In Brohm V. JH Properties, Inc. 1998, the Sixth Circuit found the doctor without a prima facie case of disability discrimination. The Sixth Circuit also found that even though the doctor had established his condition, the hospital had a legitimate reason for firing him. The Sixth Circuit cited that it is unsafe to employ an anesthesiologist who sleeps while performing duties. Therefore, the burden moved to the doctor to offer evidence of the discriminatory termination by the hospital. In the same manner, Davis has not proof that the restaurant terminated him because of his disability. He also has no proof that his termination was related to his actions that were a result of his disability. Moreover, He was not terminated but abandoned his duties as a Chef, after the manager assigned managerial duties to Wags. Even, where Davis can proof that the restaurant was aware of his disability and was terminated on this basis, the establishment has enough proof of the unsafe working condition he was creating. There is ample evidence that the Chief Chef working in a busy kitchen with sharp and dangerous Kitchen appliances needs to perform his duties of administration and management effectively. Aside from proper preparation of quality food, there is evidence that Davis created an unsafe working environment in which orders were not filled in time, poor labor supply, late payment to employees, and a refusal to follow restaurant standards.
This case sites that the complainant does not meet the standards for the ADA for disability discrimination at the workplace. In price v. S-B Power Tool,[4] the court of appeals judgment summary affirmed for the employer. In this case, the court found that the employee, who suffered from epilepsy, failed to make a prima facie case since they could not show that she was treated any harshly for her absenteeism than other non-disabled employees, absent as she was.
In Lindgren v. Harmon Glass Co.,[5] Minnesota’s Court of Appeal rejected the argument made by the complainant that the employer should have made reasonable accommodations for absenteeism. This accommodation was to be made for a long-term employee who had missed work because of a rheumatoid arthritis treatment. The employer testified that the dismissal of the employees was due to her absenteeism regardless of the cause.
In Despears v. Milwaukee County, [6] the Seventh Circuit Judge explained that a dismissal following a fourth arrest for drunk driving does not violate the ADA, though it is occasioned to an extent by the plaintiff’s alcoholism. The circuit court noted that alcoholism was the cause but not only cause for drunk driving, since the employee also made a choice to drive under the influence of alcohol. This is because though the ADA makes accommodations for employee’s disabilities, they do not think it reasonable to require accommodation to overlook infractions of law. In this case, the restaurant cannot overlook the infractions Davis made by breaking company policy and standards.
In Jones v. American Postal Workers Union,[7] the court of appeals held that the postal service had the right to dismiss an employee that threatened the life of his supervisor though the threat was made in relation to his disability. The Fourth Circuit cited that the America with Disability Act 1990, that “Because the ADA does not require an employer to ignore such egregious misconduct by one of its employees, even if the misconduct was caused by the employee’s disability, we remand this case to the district court for entry of judgment in favor of the defendants.”[8] Therefore, Davis negligence of his managerial duties, his admittance that food is the only important thing, and quitting under his own recognizance is does not warrant a disability discrimination suit against the employer. Further, the employees conduct in the workplace and gross negligence of his duties and warnings, does not require the employer to ignore his misconduct under the ADA since he was not made aware of the disability.
Conclusion
Davis was not as a matter of law, discriminated for ADD or any disability or fired. Davis accepted the duties and responsibilities of upon employment as a Chief Chef and Kitchen Manager, therefore, for the reasons stated herein, the respondent respectively requests that this claim be dismissed in its entirety.
[1] The Restaurant’s policy requires all employees to:
- carry out instructions given by the head office and management partners,
- always adhere to the restraints procedures and policies,
- assist in meeting the financial targets set by the restaurant,
[2] Americans with Disability Act (1990) section 501 of the Rehabilitation Act.
[3] “ADA 1990 section 501: if an employee’s disability prevents the employee from performing the essential functions of the job in accordance with your company’s standards, he can be terminated. However, the employer must consider such mechanism or accommodations that might enable him to perform up to those standards.” (Robinson David A. Some Tips to Prevent Employment Discrimination Lawsuits: A Faith-Based Legal)
[4] 75 F.3d 362 (Eighth Circuit, 1996)
[5] 489 N.W.2d 804, 807 (Minnesota Court of Appeal 1992) (Affirming summary judgment for employer on state handicap discrimination claim).
[6] 63 F.36 635 (Seventh Circuit 1995).
[7] 192 F.3d 417 (Fourth Circuit 1999).
[8] 192 F.3d 429 (Fourth Circuit 1999).
