Crowley v. OSI Restaurant Partners, LLC

907 F. Supp. 2d 1318, 2012 WL 6025605, 2012 U.S. Dist. LEXIS 172012, 116 Fair Empl. Prac. Cas. (BNA) 1349
CourtDistrict Court, M.D. Florida
DecidedDecember 4, 2012
DocketCase No. 8:11-CV-249-T-23TGW
StatusPublished
Cited by1 cases

This text of 907 F. Supp. 2d 1318 (Crowley v. OSI Restaurant Partners, LLC) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowley v. OSI Restaurant Partners, LLC, 907 F. Supp. 2d 1318, 2012 WL 6025605, 2012 U.S. Dist. LEXIS 172012, 116 Fair Empl. Prac. Cas. (BNA) 1349 (M.D. Fla. 2012).

Opinion

ORDER

THOMAS G. WILSON, United States Magistrate Judge.

The plaintiff, Dennis C. Crowley, brought this lawsuit alleging that defendants OS Restaurant Services, Inc. and Outback Steakhouse of Florida, LLC (collectively “Outback” or “defendants”) terminated his employment on the basis of his age, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. 621 et seq., and the Florida Civil Rights Act of 1992 (“FCRA”), Ch. 760, Fla. Stat. Crowley also asserts that Outback breached his employment agreement by terminating him without cause.

Outback has filed a motion for summary judgment on all counts of the amended complaint (Doc. 76). Viewing the evidence in the light ihost favorable to Crowley, there are genuine issues of material fact regarding whether his termination was due to age discrimination. Therefore, Outback’s motion for summary judgment will be denied.

I.

Crowley, who was 62 years old when terminated, worked for Outback from 1990 until August 2009 (Doc. 19, ¶¶ 60, 74-75; Doc. 90, ¶ 4). Outback operates a chain of Australian-themed restaurants, which are committed to' delivering “serious food” and “concentrated service” (Doc. 76, p. 2).

At the time of his termination, Crowley was the managing partner of the Outback restaurant on Fourth Street in St. Peters-burg, Florida (Doc. 19, ¶¶ 38, 61). Crowley initially reported directly to Jim Pollard, who was a joint venture partner and then a regional joint venture partner. Beginning in December 2006, however, Crowley was supervised by Pam Murphy, a joint venture partner. Murphy reported to Pollard until his resignation in January 2008. Thereafter, Murphy reported to Bowen Eason, a regional vice president. Eason reported to the senior vice president of operations, Steve Erickson.

As a managing partner, Crowley was responsible for the management and training of employees, the profitability of the restaurant, and meeting Outback’s standards for “serious food” and “concentrated service” (see Doc. 89, ¶ 5). A managing partner ensures that his restaurant is sell[1320]*1320ing “serious food” by performing line checks, labeling food items with an expiration date and disposing of expired food, and adhering to Outback’s recipes (Doc. 76, pp. 2-3; Doc. 89, ¶¶ 8-10). “Concentrated service” involves training and feedback for employees and customer satisfaction (Doc. 76, p. 3; Doc. 89, ¶¶ 11-12).

In August 2007, Crowley entered into the last of several employment agreements with Outback (Doc. 19-1). The agreement provided Crowley with a term of employment until August 2012, subject to early termination for cause (id., ¶ 1). With respect to “cause,” the agreement states, in pertinent part (id., ¶ 8(c)(i)) (emphasis in original):

Failure of the Employee to perform the duties required of the Employee in this Agreement in a manner satisfactory to the Employer, in its sole discretion; provided, however, that the Term of Employment shall not be terminated pursuant to this subparagraph (i) unless the Employer first gives the Employee a written notice (“Notice of Deficiency”). The Notice of Deficiency shall specify the deficiencies in the Employee’s performance of the Employee’s duties. The Employee shall have a period of thirty (30) days, commencing on receipt of the Notice of Deficiency, in which to cure the deficiencies contained in the Notice of Deficiency. In the event the Employee does not cure the deficiencies to the satisfaction of the Employer, in its sole discretion, within such thirty (30) day period ... the Employer shall have the right to immediately terminate the Term of Employment....

Crowley alleges that, as a managing partner, he was a top performer in the Tampa region (Doc. 19, ¶ 63). He states that he “repeatedly won awards and commendations for his superior performance. He was consistently recognized for having the top TCI (total controllable income), the best food costs and the best liquor costs” (id., ¶ 64). Pollard testified that Crowley won the partner of the year award multiple times (Doc. 87, pp. 98-100).

According to Murphy, however, Crowley’s performance began to decline in 2008 (Doc. 89, ¶ 14). Although she counseled Crowley on ways to improve, Murphy received several complaints from Outback executives about their experiences at the Fourth Street Outback during 2008 and 2009 (id., ¶¶ 14,16). In addition, Crowley’s restaurant received “many” customer complaints regarding the quality of food and service (id., ¶ 18).

Around April 2009, Murphy • asked Amanda King, a former service tech, to keep notes regarding Crowley’s mistakes, “no matter how minor ... even if the error was as minute as a burnt out light bulb” (Doc. 95-9, ¶7). King states that Murphy told her that she (Murphy) needed support for placing Crowley on a 30-day notice (id.).

The record indicates that Murphy may have made some comments regarding Crowley’s age. King testified that, around the same time Murphy asked her to take notes on Crowley, Murphy began asking if Crowley was “too old to do the job,” and stating that she thought Crowley was “too old to do the job” (Doc. 85, pp. 41-42). Julie Guenther, Murphy’s former assistant, states that Murphy referred to Crowley as an “old dinosaur” (Doc. 84, p. 23). Finally, Tyre Weaver, a former food tech, testified that Murphy said Crowley was “just getting old” (Doc. 88, p. 104). Murphy, however, denies that she made any of these statements (Doc. 86, p. 170).

Murphy evaluated Crowley’s performance in May 2009 (Doc. 86-29; Doc. 89, ¶ 20). At that time, Murphy indicated that Crowley had strengths in staff accountability, serious food and drink, and immaculate standards, but he needed improvement [1321]*1321with respect to communicating with impact, building partnerships, and achieving profitability (Doc. 86-29, p. 3). Murphy again counseled Crowley on ways to satisfy Outback’s standards (Doc. 89, ¶ 20). However, Crowley “failed to improve to [Murphy’s] satisfaction” (id., pp. 5-6).

Murphy spoke with both Erickson and Eason regarding her concerns with Crowley’s performance (Doc. 86, pp: 71-73, 78). During these conversations, Erickson and Eason asked Murphy if she had considered giving Crowley a 30-day notice- (id.).

On July 17, 2009, Murphy issued a notice of deficiency to Crowley, noting problems in the areas of (1) training and development of management and staff; (2) kitchen operations and food quality; (3) leadership; (4) maintaining appropriate staffing; and (5) customer service (Doc. 76, p. 6; Doc. 86-15). In addition, Murphy provided Crowley with a more detailed list of deficiencies (Doc. 86-14; Doc. 89, ¶ 21).

Crowley posted the list of deficiencies on his office wall, and he reviewed it with Joseph DiSanto, his administrative assistant (Doc. 95-4, ¶ 9). DiSanto crossed off items on Murphy’s list as they were completed, and he states that he handled “many of the items” himself (id., ¶¶ 16,19). DiSanto further states that every item was crossed off of the list by the end of the 30-day period (id., 1122).

Murphy inspected the Fourth Street Outback multiple times after issuing the notice of deficiency (Doc. 89, ¶ 22). According to DiSanto, Murphy performed a “final walk through” during one of his shifts at the end of the 30 days (Doc. 95-4, ¶ 23).

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907 F. Supp. 2d 1318, 2012 WL 6025605, 2012 U.S. Dist. LEXIS 172012, 116 Fair Empl. Prac. Cas. (BNA) 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowley-v-osi-restaurant-partners-llc-flmd-2012.