Veteran restaurant server sues former employer, alleges firing due to age

A 64-year-old suburban Philadelphia man who alleges his firing from his job as a server at a city restaurant was related to his age has filed a federal discrimination complaint against the business and its parent company.

Penndel, Pa. attorneys Timothy M. Kolman, Wayne A. Ely and Eman Abouelseoud filed the civil action April 18 at the U.S. District Court for the Eastern District of Pennsylvania on behalf of Wynnewood, Pa. resident Mickey DeVivo.

Named as defendants in the lawsuit are the Philadelphia-based Butcher & Singer restaurant, and its parent group, SBI Restaurant Partners, L.P.

According to the complaint, DeVivo, who has had more than four decades of experience as a restaurant server, was fired from his job of nearly three years at Butcher & Singer on May 18, 2011.

The lawsuit claims that DeVivo, who was the oldest member of the wait staff at the restaurant – he was more than 20 years older than most of the other servers – was fired for discriminatory reasons.

Starting in August 2010, the suit claims, DeVivo began to notice that more work hours were assigned to younger male and female servers, which directly affected DeVivo’s pay.

From October 2010 until March 2011, DeVivo complained to management about the disparity in assignments, but nothing was done to address his concerns, the complaint alleges.

DeVivo’s original manager resigned in April 2011, and the server got a new supervisor, who went on to formally write DeVivo up in early May 2011 after a complaint from a customer who was allegedly asked by DeVivo to “smile when he approached the table,” the lawsuit states.

DeVivo, who apparently never had any disciplinary problems during his job prior to this alleged incident, then called out of work on May 16, 2011, informing the restaurant that he was distraught because of his father’s poor health.

DeVivo was soon told by his supervisors that he was “too old for this job,” and he was instructed in a May 17, 2011 phone call to not report to work the following day.

On May 18, DeVivo was brought into a meeting with an assistant manager who informed DeVivo he was being terminated, allegedly for receiving 12 disciplinary write-ups stemming from customer complaints during the prior few years.

“The reason for Plaintiff’s termination was entirely bogus and pretextual because Plaintiff did not receive or see all twelve write-ups and upon belief did not have twelve write-ups in his file,” the lawsuit states. “He only had three in those three years.”

The complaint alleges that younger servers who received customer complaints were not disciplined in the same manner as DeVivo.

DeVivo filed charges of discrimination with the Pennsylvania Human Relations Commission and the U.S. Equal Employment Opportunity Commission in mid June 2011.

The lawsuit, which contains counts of discrimination and retaliation, accuses the defendants of violating the federal Age Discrimination in Employment Act.

DeVivo seeks to have the defendants enjoined from discriminating and retaliating against employees.

He also demands unspecified compensatory and punitive damages, liquidated damages, actual damages and litigation costs.

A trial by jury is being demanded.

 

The federal case number is 2:12-cv-02036-PD.