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Final Order
Hearings Unit: Final Order
 
BEFORE THE COMMISSIONER OF THE BUREAU OF LABOR AND INDUSTRIES OF THE STATE OF OREGON
 
 
In the Matter of
THOMAS P. MYERS dba CHUBBY´S,
Respondent.
Case Number 44-95

FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER
 

 
SYNOPSIS

Complainant, a black person, alleged that she was subjected to a hostile and abusive work environment by Respondent based on her race and color and further alleged that she was constructively discharged based on her race and color. The Forum found that Complainant had been subjected to racial harassment and constructively discharged and awarded Complainant $1,257.50 in back pay and $20,000 for mental suffering. ORS 659.010(6); ORS 659.030(1)(a-b).
 

 
The above-entitled case came on regularly for hearing before Alan McCullough, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on March 21 and 22, 1995, and on January 9 and 10, 1996, at the office of the Oregon Employment Department, 119 North Oakdale Street, Medford, Oregon. The Bureau of Labor and Industries (the Agency) was represented at all stages of the hearing by Judith Bracanovich, an employee of the Agency. Thomas P. Myers (Respondent), was present throughout the hearing and was represented on March 21 and 22, 1995, by Scott A. Norris, Attorney at Law, and on January 9 and 10, 1996, by Larry B. Workman, Attorney at Law. Alice Ferguson (Complainant) was present throughout the hearing and was not represented by counsel. The Agency called the following witnesses: Complainant; Complainant´s husband Jack Chadd; Complainant´s former co-workers Matt Coughlin, Brenda Dodson, Edith Grimshaw, Patrick Ludden, Theresa Nichols, Rebecca Pinnock-Ward, and Deborah Rand; and Agency Civil Rights Division Senior Investigator Susan Moxley.
 
The Respondent called the following witnesses: Respondent Thomas P. Myers; Vocational Rehabilitation Consultant Bruce E. McLean; Respondent´s former employees Patricia Stedmon, Jennifer McAuliffe, Elaine Keffer, Kristine Hickman; Respondent´s stepfather Richard Taylor, Sr.; Respondent´s mother Jacqueline Taylor; Respondent´s girlfriend Jeanne Mayer; Respondent´s former customers Ronald Hickman, Dan Stebbins, and Wendell Haynes.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
 
FINDINGS OF FACT -- PROCEDURAL

1) On December 28, 1993, Complainant filed a verified complaint with the Civil Rights Division of the Agency alleging she was the victim of the unlawful employment practices of Respondent. (Testimony of Complainant, Exhibit A-2) 2) After investigation, the Agency issued an Administrative Determination finding substantial evidence of an unlawful employment practice in violation of ORS 659.030 by Respondent. (Testimony of Moxley; Exhibits A-7, A-8)
3) On February 3, 1995, the Agency prepared Specific Charges that were duly served by certified mail on Respondent. (Exhibit X-3)
4) With the Specific Charges, the Agency served on Respondent the following: a) a Notice of Hearing setting forth the time and place of the hearing in this matter; b) a Notice of Contested Case Rights and procedures containing the information required by ORS 183.413; c) a complete copy of the Agency´s administrative rules regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. (Exhibits X-2, X-3)
5) On February 23 1995, Respondent, through counsel, filed an answer. (Exhibit X-4)
6) On February 28, 1995, Respondent counsel issued a subpoena to the Adult and Family Services Division (AFS) commanding AFS to produce all AFS files related to Complainant. (Exhibit X-5)
7) On March 3, 1995, the ALJ issued a discovery order to the participants, directing them each to submit a Summary of the Case. (Exhibit X-4a)
8) On March 7, 1995, the Agency filed a motion to limit discovery by prohibiting Respondent from obtaining Complainant´s Adult & Family Services Division (AFS) file absent a showing of relevance. On March 8, 1995, the ALJ conducted a prehearing conference regarding the Agency´s motion. During the conference, Respondent counsel argued that the AFS file was relevant in that the records it contained might show that Complainant had a criminal conviction or contain other impeachment evidence. At the conclusion of the conference, the ALJ granted the Agency´s motion and quashed the Respondent´s subpoena based on Respondent´s failure to establish relevance and confirmed the ruling in writing later that same day. The ALJ also declined to review the AFS file in camera. (Exhibits X-5, X-6)
9) On March 13, 1995, the Agency filed a Summary of the Case. (Exhibit X-7)
10) On March 13,1995, the Respondent submitted a Summary of the Case. Respondent submitted an addendum on March 15, 1995. (Exhibit X-8, X-9)
11) On March 21, 1995, the hearing was convened. At the outset of the hearing, the Agency moved to amend the Specific Charges to name Richard Taylor, Sr., and Jackie Taylor as additional Respondents on a successor-in-interest theory based on newly acquired evidence obtained by the Agency on March 19, 1995, of the transfer of Chubby´s from Respondent Myers to the Taylors on February 24, 1995. Respondent did not object. The ALJ declined to rule on the Agency´s motion at that time and the Agency presented its case. At the start of the second day of hearing, the ALJ granted the Agency´s motion, but ruled that the Taylors would have to be served with Amended Specific Charges and have an opportunity to file an answer before the hearing could be reconvened. The Agency moved to further amend the Specific Charges to name Richard Taylor, Jr., as an additional Respondent. Respondent did not object and the motion was granted. The hearing was then adjourned. (Statement of the ALJ)
12) On April 4, 1995, the Agency prepared Amended Specific Charges naming Thomas P. Myers, Richard A. Taylor, Jackie Taylor, and/or Richard Taylor, Jr., all dba Chubby´s, as Respondents. (Exhibit X-10)
13) On April 13, 1995, Respondent Myers, through counsel Norris, filed an answer to the Amended Specific Charges. (Exhibit X-11)
14) On April 14, 1995, the hearing was scheduled to reconvene on June 1, 1995. (Exhibit X-12)
15) On April 20, 1995, Respondents Taylor, through counsel, filed an answer to the Amended Specific Charges. (Exhibit X-14)
16) On May 2, 1995, the Agency requested that a transcript be prepared of the tapes recorded during the hearing on March 21-22. This request was granted on May 17, 1995. (Exhibits X-15, X-17)
17) On May 18, 1995, the Agency filed a motion to amend the Amended Specific Charges based on newly acquired evidence obtained on May 17, 1995, indicating that Respondents Taylors had sold Chubby´s on March 20, 1995. Specifically, the motion sought to delete Jackie Taylor and Richard Taylor, Jr. as Respondents and to add David Graf, Linda Graf, David Stoutenburgh, and Karen Stoutenburgh, each dba Chubby´s, as Respondents based on a successor-in-interest theory. At the same time, the Agency moved for a postponement of the hearing based on the addition of the Grafs and Stoutenburghs as new Respondents and the need to serve them with the Second Amended Specific Charges. (Exhibit X-18)
18) Respondents did not object to a postponement of the hearing and on May 19, 1995, the Agency´s motion for a postponement was granted. (Exhibit X-19)
19) On May 22, 1995, Respondent Myers, through counsel Norris, filed an answer to the Second Amended Specific Charges. (Exhibit X-20)
20) On May 25, 1995, Respondents Taylor, through counsel, filed an answer to the Second Amended Specific Charges in which they objected to the addition of Respondents Graf and Stoutenburgh as successors-in-interest to Respondents Myers and Taylors. (Exhibit X-21)
21) On May 30, 1995, the Agency´s motion to amend the Amended Specific Charges was granted on the basis that the Agency had no way of knowing about the transfer of assets from Respondent Myers to Respondents Taylor and from Respondents Taylor to Respondents Graf and Stoutenburgh until after the hearing had already commenced. At the same time, the hearing was set to reconvene on July 25, 1995. (Exhibit X-22)
22) On June 2, 1995, Respondent Taylor, through counsel, filed an answer to the Second Amended Specific Charges. (Exhibit X-24)
23) On June 20, 1995, Respondent Myers retained counsel William V. Deatherage to represent him in place of Scott Norris. (X-26)
24) On June 20, 1995, Respondent Myers requested a postponement of the hearing based on the fact that Myers´ new counsel had been previously scheduled to appear at a trial commencing July 25, 1995. (Exhibits X-26, 27)
25) On June 23, 1995, the Agency moved for an Order of Default against Respondents Graf and Stoutenburgh based on their failure to file a timely answer. (Exhibit X-28)
26) On June 27, 1995, the ALJ issued an Order of Default to Respondents Graf and Stoutenburgh in which said Respondents were given until July 7, 1995, to request Relief from Default. (Exhibit X-29)
27) On June 27, 1995, Respondent Myers´ motion for a postponement was granted on the basis that Respondent Myers had not requested a previous postponement, that the request was timely, and there was no reasonable alternative to postponement, given the previous trial schedule conflict on the part of Respondent Myers´ counsel. (Exhibit X-30)
28) On July 5, 1995, Respondents Graf and Stoutenburgh, through counsel, filed a motion for relief from default, in which it was represented, among other things, that Respondent Taylor sold Chubby´s to Graf & Stoutenburgh, Inc., an Oregon corporation. (Exhibit X-32)
29) On July 17, 1995, the Agency filed a response to Respondents Graf & Stoutenburgh´s motion for relief from default, indicating, among other things, that it would be appropriate to substitute Graf & Stoutenburgh, Inc. for Respondents Graf and Stoutenburgh if documentation was provided to establish ownership of the franchise and business assets in the name of Graf & Stoutenburgh, Inc. (Exhibit X-34)
30) On July 20, 1995, Respondents Graf & Stoutenburgh, through counsel, provided an Agreement for Sale showing that Graf & Stoutenburgh, Inc., purchased Chubby´s from Respondent Taylor. (Exhibit X-36)
31) On July 31, 1995, the Agency requested that "Graf & Stoutenburgh, Inc." be substituted, by interlineation for Respondents Graf and Stoutenburgh as individuals. (Exhibit X-38)
32) On August 1, 1995, the Agency´s motion was granted. At the same time, Respondents Graf & Stoutenburgh were relieved of default and the charges against them dismissed. Respondent Graf & Stoutenburgh, Inc., was given until August 11, 1995, to file an answer to the Second Amended Specific Charges. (Exhibit X-39)
33) On August 7, 1995, Respondent Graf & Stoutenburgh, Inc., through counsel, filed an answer to the Second Amended Specific Charges. (Exhibit X-43)
34) On August 15, 1995, the hearing was scheduled to reconvene on January 9, 1996. (Exhibit X-44)
35) On September 19, 1995, all Respondents were notified that the hearing tapes from the first portion of the hearing had been transcribed and that transcription copies were available upon request. (Exhibit X-45)
36) On October 17, 1995, W.V. Deatherage withdrew as counsel for Respondent Myers. (Exhibit X-46)
37) On December 13, 1995, the ALJ sent out a directive in which all parties were required to submit original or supplemental case summaries and Respondents Taylor and Graf & Stoutenburgh, Inc., were required to inform the ALJ and Agency, no later than December 18, 1995, which of the Agency witnesses who had already testified they wished to cross-examine. (Exhibits X-47, 48)
38) On December 18, 1995, Respondent Taylor requested cross-examination of all of the Agency´s witnesses who had already testified except for Jack Chadd. (Exhibit X-49)
39) On December 20, 1995, the ALJ directed the Agency to make these witnesses available for cross-examination when the hearing reconvened. (Exhibit X-50)
40) On December 20, 1995, Larry B. Workman, attorney at law, notified all participants that he was now representing Respondent Myers. (Exhibit X-51)
41) On December 27, 1995, Respondent Taylor, through counsel, filed a case summary. (Exhibit X-52)
42) On December 28, 1995, the Agency filed a supplemental case summary and sent a copy of the Agency´s original case summary to Respondents Taylor, Graf & Stoutenburgh, Inc., and Respondent Myers´ most recent counsel. (Exhibits X-53, 54)
43) On December 28, 1995, Respondent Graf & Stoutenburgh, Inc., through counsel, filed a case summary. (Exhibit X-55)
44) On December 28, 1995, Respondent Myers, through counsel, filed a case summary. (Exhibit X-57)
45) On December 28, 1995, Respondent Myers, through counsel, filed an answer to the Second Amended Specific Charges. (Exhibit X-56)
46) On January 2, 1996, the Agency advised the forum that an agreement had been reached between the Agency and Respondents Taylor and Graf & Stoutenburgh, Inc. and that it intended to file a motion to strike the answer filed by Respondent Myers on December 28, 1995. (Exhibit X-58)
47) On January 3, 1996, the Agency filed a motion to strike the answer filed by Respondent Myers on December 28, 1995 on the basis that an answer had already been filed by Respondent Myers´ previous counsel, the failure of the most recent answer to be accompanied by a motion to amend, and its untimeliness. (Exhibit X-61)
48) On January 4, 1996, the Agency case presenter, Respondent Myers´ counsel, Larry Workman, and the ALJ participated in a prehearing conference in an attempt to resolve the issues raised by the Respondent Myers´ December 28, 1995, answer and the Agency´s motion to strike. During the conference, Mr. Workman moved to amend the answer and that motion was denied. The ALJ also rescinded the forum´s December 20, 1995, ruling directing the Agency to produce its witnesses for cross-examination for the reason that Respondent Myers´ previous counsel had already cross-examined them at the first hearing. (Exhibit X-62)
49) Other evidentiary issues regarding witness testimony were also resolved, including Mr. Workman´s request to call Ms. Bracanovich as a witness to impeach Complainant´s testimony based on statements the Complainant may have made to Ms. Bracanovich that contradicted her testimony at the first stage of the hearing. The forum denied this request, indicating that the basis for the ruling would be provided in the Proposed Order. The basis for this ruling is stated in the Proposed Opinion.
50) On January 4, 1996, the Agency and Respondents Taylor and Graf & Stoutenburgh entered into a Stipulation Order for Dismissal of Claims, leaving Respondent Myers as the lone remaining Respondent. (Exhibit X-59)
51) At the commencement of the hearing, pursuant to ORS 183.415(7), the ALJ orally advised the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the ALJ)
52) During the hearing, the Agency moved to amend the amount of back pay sought by Complainant downward to $1,257.50, representing back pay from September 6, 1993, through the end of the third week in December 1993, computed as follows: (a) 15 weeks x 14 hours/wk. x $4.75/hr. = $997.50, plus (b) 14 weekends x $40 tips = $560, less (c) $300 in interim earnings. The Agency´s motion was granted.
53) On February 21, 1996, Respondent, through counsel, filed Exceptions to the Proposed Order.
 
FINDINGS OF FACT -- THE MERITS

1) Beginning July 19, 1993, and continuing throughout the duration of Complainant´s employment, Respondent Thomas P. Myers (hereinafter "Respondent") owned and operated a restaurant in Ashland, Oregon, under the assumed business name of Chubby´s, and was an employer in the State of Oregon who engaged or utilized the personal services of one or more employees, reserving the right to control the means by which such services were performed. (Exhibits X-2, X-4; Testimony of Myers) 2) Complainant is African-American, Irish, and English. Complainant appears to be African-American and Respondent was aware that Complainant was African-American while Complainant was employed by Respondent. (Entire Record; Observation of ALJ)
3) In or around September 1992, Respondent´s stepfather, Richard Taylor, obtained a franchise from Chubby´s, a California-based restaurant chain, and opened a Chubby´s restaurant in Ashland, Oregon. (Testimony of Respondent, Taylor)
4) Complainant was hired as a waitress when Taylor first opened the Ashland Chubby´s (hereinafter "Chubby´s"). Complainant worked as a waitress throughout her employment at Chubby´s. (Testimony of Complainant, Respondent)
5) Shortly after Chubby´s opened, Respondent was hired as a waiter with the idea that he would learn the business and eventually assume management functions. Respondent began performing management duties approximately six months after he was hired. (Testimony of Respondent)
6) On July 19, 1993, Respondent became the sole owner of Chubby´s. (Testimony of Respondent; Exhibits X-2, X-4)
7) Complainant and Ervil Jack, a male cook, were the only African-American persons employed by Chubby´s during Complainant´s tenure of employment. Everyone else, including Respondent, was Caucasian. (Stipulation of the parties)
8) During Complainant´s employment at Chubby´s, Respondent referred to Complainant as a "black bitch", a "nigger", a "nigger bitch", and a "stupid nigger" in conversations with employees of Chubby´s. (Testimony of Rand, Nichols, Ludden)
9) During Complainant´s employment at Chubby´s, Respondent also referred to a Caucasian dishwasher, Charlie Golden, as "my nigger who does nigger work in the back." (Testimony of Rand, Nichols, Ludden)
10) In August 1993, one of Respondent´s cooks who knew he was looking for another cook suggested checking with the Oregon Employment Division. Respondent replied that he had already tried the Division and they had sent him "nothing but niggers and bums". (Testimony of Grimshaw)
11) During Ervil Jack´s employment in July or August 1993, Respondent told an employee that he felt uncomfortable hiring Jack because he would be cooking in front of the public and he wasn´t sure Ashland would be able to handle having a black man in the kitchen. (Testimony of Dodson)
12) A number of Respondent´s employees, Respondent´s stepfather, and some regular customers never heard Respondent make any racial comments about black or African-American individuals. (Testimony of Pinnock-Ward, Taylor, Stedmon, McAuliffe, Keffer, Stebbins, K. Hickman, R. Hickman)
13) Respondent referred to Complainant as a "stupid nigger" in the presence of Matt Coughlin, one of Respondent´s cooks. (Testimony of Coughlin)
14) Respondent never made any racial comments about African-American individuals in Complainant´s presence. (Testimony of Complainant, Respondent)
15) Respondent had a volatile temper and became easily upset. (Testimony of Respondent, Mayer, Complainant, Pinnock-Ward)
16) Respondent was very concerned about employees failing to charge for food and became upset when he suspected that a waitress had not charged a customer for an item of food. (Testimony of Respondent, Complainant, Pinnock-Ward)
17) Deborah Rand, a waitress and Complainant´s co-worker, failed to charge a customer for a food item on one occasion that Respondent was aware of. Respondent verbally counseled her, but did not write her up or threaten her with termination. (Testimony of Rand)
18) Theresa Nichols, a waitress and Complainant´s co-worker, never failed to charge any customers for food items, but was accused by Respondent on one occasion of doing so. She was not written up or disciplined on this occasion. (Testimony of Nichols)
19) Rebecca Pinnock-Ward, a waitress and Complainant´s co-worker, forgot to charge a customer for a food item "once in awhile," but always caught her error before the customer left. Respondent accused her more than once of giving away food and yelled at her on those occasions and threatened to write her up. (Testimony of Pinnock-Ward)
20) Patrick Ludden, one of Respondent´s cooks who was in charge when Respondent was not at Chubby´s, was instructed by Respondent to check the waitress´ tickets to make sure all food items were punched in. There were times Ludden observed that waitresses had failed to write down all food items that had been served to the customer. Ludden communicated these failures to Respondent. Respondent did not issue written warnings in response. (Testimony of Ludden)
21) Matt Coughlin, another cook employed by Respondent, observed that occasionally a waitress would forget to charge for a food item and that Respondent would get upset when aware of this, sometimes making waitresses make up the difference out of their tips and threatening to write them up.
22) On at least three occasions, Respondent or a cook discovered that Complainant had forgotten to charge a customer for an item of food. On one of these occasions that occurred before Respondent became owner, Respondent yelled at Complainant in front of customers and accused her of "ripping off" Chubby´s. (Testimony of Grimshaw, Complainant)
23) On Thursday, August 26, 1993, Nichols told Complainant that Respondent had called Complainant a "fucking nigger" and that Respondent had called Charlie Golden "his nigger" who did "nigger work". (Testimony of Nichols, Complainant)
24) Between August 26, 1993, and September 4, 1993, Rand told Complainant that Respondent had called her a "black bitch". (Testimony of Complainant, Rand)
25) Nichols´ and Rand´s statements shocked Complainant and made her feel hurt and angry. She was upset in part because she realized that these comments had been circulating around behind her back for an undetermined amount of time. (Testimony of Complainant, Chadd)
26) Complainant had been a loyal employee and excellent waitress who felt pride in her work and these statements made her believe that Respondent perceived her as "just a nigger". (Testimony of Complainant, Chadd, Grimshaw, Nichols, Dodson, Pinnock-Ward, Ludden, Richard Taylor)
27) After August 26, Complainant worked with Respondent on August 28 and 29, 1993, then did not work again until September 4 and 5, on which days Respondent was away from Chubby´s on vacation. (Testimony of Complainant, Respondent; Exhibit A-13)
28) On August 28, 1993, Complainant forgot to write up a side order of sausage on a customer´s ticket. Respondent became aware of this and told Complainant of her error and that he had deducted the price of the sausage from Complainant´s tip. Later that day, Respondent instructed Ludden to give Complainant a written warning over the incident, and dictated the wording of the warning to Ludden. (Testimony of Complainant, Ludden, Respondent; Exhibit A-3)
29) Respondent believed that he had the right to fire employees for their shortcomings, that he was obligated to go through a certain procedure before firing them, and that "to write anybody up was my last resource". (Testimony of Respondent)
30) At the time of the sausage incident, Respondent told Complainant that she would be fired if she forgot to charge a customer again. (Testimony of Complainant)
31) On August 28, 1993, Ludden gave Complainant a written warning that stated: "Improper use of register. All items written on guest checks shall be entered into register using proper procedures. Register tape is then stapled to guest check. Any items that are not on register tape and is given to a customer is considered improper procedures. This improper procedures is in reference to guest check #53101. If this improper procedure continues you will be reprimanded."
(Exhibit A-3) 32) Complainant was the first waitress to be issued a written warning, a fact Complainant was aware of at the time she received the warning. Complainant was also aware that other waitresses had forgotten to charge for food items and had not been given written warnings. (Testimony of Complainant)
33) When she received the written warning, Complainant believed that Respondent was either trying to get her to quit or "setting the stage" to fire her. (Testimony of Complainant)
34) On August 28, 1993, after receiving the written warning, Complainant decided to resign. Complainant telephoned Jack Chadd, her boyfriend at the time and present husband, and stated that she could not work for Respondent any longer knowing that Respondent was referring to her as a "nigger" and a "black bitch" behind her back. Complainant was crying and very upset during this conversation. (Testimony of Complainant, Chadd)
35) Although Respondent was generally perceived to be a harsh employer, Grimshaw, Dodson, and Complainant perceived that Respondent was particularly critical of Complainant. (Testimony of Grimshaw, Dodson, Complainant)
36) On August 28, 1993, Complainant wrote a resignation letter to Respondent. She delivered this letter to Respondent in person on August 29. The letter read as follows:
"Tom M.; It has been brought to my attention, from fellow staff persons, that you have referred to me, using a racial slur, i.e. "nigger". For this reason and the continual demeaning and disparaging comments you have repeatedly made in regards towards customers, particulary (sic) the elderly and those who either look poor or appear to lead an alternative lifestyle; I can no longer, in good conscience, continue to work for you. I will not work for a company that allows the use of racist terms to be used, particularly, a boss that uses such terms, which I find offensive. My last day will be Sept. 5. I regret that I am not able to give a full two weeks notice, but I feel this will allow you to take your vacation as planned, and not cause hardship on you or the other employees.
Alice Ferguson"
37) Respondent read Complainant´s resignation letter when she delivered it. He responded by telling Complainant "I´m sorry to see you go, Alice, because you were a good worker," but did not deny making the racist statements alleged in Complainant´s resignation letter. (Testimony of Complainant)
38) Complainant did not verbally confront Respondent about the racist statements alleged in her resignation letter because she felt very angry about them and didn´t want to "create a scene" in the restaurant. (Testimony of Complainant)
39) Respondent went on vacation for three days over Labor Day weekend and was absent from Chubby´s during those days. (Testimony of Respondent, Complainant)
40) After submitting her resignation letter, but before September 5, 1993, Complainant told Grimshaw that she had heard Respondent was referring to her by racial names and that she could no longer work for Respondent. Complainant was upset and in tears during this conversation. (Testimony of Grimshaw)
41) After submitting her resignation, but before September 5, 1993, Complainant was told by Christy Pischell, a co-worker, that Respondent had referred to Ervil Jack as a "nigger". (Testimony of Complainant)
42) During a conversation with Coughlin, Respondent referred to Complainant as a "stupid nigger". Complainant was still employed by Respondent at that time. Coughlin did not report this remark to Complainant. (Testimony of Coughlin)
43) Respondent discharged Ervil Jack and Amy Beard, a white waitress, by failing to schedule them for any work hours based on Respondent´s suspicion that one or both were stealing from the till. (Testimony of Respondent)
44) While working for Respondent, Complainant told Dan Stebbins, one of Respondent´s customers, that she couldn´t wait to leave Respondent´s employment and was going to sue Respondent for calling her some unspecified names. Stebbins testified "If someone did that to me, I´d quit on the spot." (Testimony of Stebbins)
45) On September 10, 1993, Complainant sent a five page letter, accompanied by a copy of her letter of resignation, to Chubby´s corporate headquarters. In the letter, she complained that Respondent had referred to her as a "fucking nigger" and a "black bitch", and that Respondent had referred to Ervil Jack as a "nigger" and Charlie Golden as an "ass.