MOSTLY HISPANIC KITCHEN STAFF

Mark Austin began working as a cook in the kitchen of Bonefish Grill in April 2015. He was one of two African-Americans working full-time in the kitchen. The other eight kitchen employees were all Hispanic. Kevin Rothery was the restaurant’s on-site manager. When Austin began working in Bonefish’s kitchen, he observed the Hispanic staff would routinely “rub, pinch or smack one another’s backsides as they moved past one another, massage one another’s shoulders and put their arms around one another.” The Hispanic staff also refused to answer Austin’s questions or assist him when he spoke in English. He reported these issues throughout the first few months of his employment without resolution.

A few months after beginning, Austin complained about the kitchen staff’s behavior in touching one another, claiming that both he and the other non-Hispanic employee felt “sexually harassed.” Rothery told Austin that he would “talk to the guys” about the harassment but the behavior did not stop. In fact, Austin’s co-workers began to “look at him and smile” while putting their hands into each other’s pants. Austin voiced his complaints to other managers throughout his employment. He found that “the more he complained, the more vulgar the kitchen staff would get.” He alleged that Rothery was not only aware of the behavior but was “present while the employees mimicked sexual acts.”

COMPLAINTS IGNORED

In September 2015, Austin put his complaints in writing, including the kitchen staff’s “inappropriate sexual games.” Rothery did not follow up on Austin’s written complaint. After Austin complained about a specific employee inappropriately pinching him, Rothery placed that particular employee directly next to Austin on the food prep line.

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8 YEARS of EXPERIENCE AS ACCOUNT EXEC

The fact-pattern is one that is often seen. Justine Larison began working for FedEx as a sales account executive in March 2007 and remained in this position until her termination in July 2015 at the age of 45. Larison’s employment was considered to be generally acceptable for the first five years of her employment until an appreciably younger woman, Stephanie Nardiello, became her manager in 2012, according to the opinion.

NEW MANAGER

Within a year of becoming her manager, Nardiello began to criticize Larison, stating that “she needed to focus on closing new business accounts.” A few months later, in early 2014, Nardiello told Larison that her sales activity was “unacceptable and needs to improve” within the next 60 days, the opinion said. Nevertheless, in June 2014, Nardiello rated Larison’s over-all performance as “generally acceptable” and specifically rated her sales performance as “meets some expectations.” As such, when Nardiello requested the authorization to terminate Larison in August, 2014, FedEx’s human resources adviser denied the request. Instead, Nardiello issued Larison a “warning letter regarding her deficiency in closing new business,” along with a plan to regularly meet with Larison.

Two weeks later, however, Nardiello requested that her weekly coaching meetings with Larison be canceled because Larison was complaining about them. Her request to human resources added, “I plan on pursuing this at the end of her second warning letter on Sept. 29.” The human resources adviser believed that the “this” was Larison’s termination. Larison was not terminated at the end of September 2014. In December, Nardiello issued yet another warning letter to Larison. This, despite the fact that Larison’s sales performance had improved.

This article was originally published by The Legal Intelligencer. Click here to continue reading.