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LARSEN v. CLUB CORP. OF AMERICA

June 1, 1994

DIANE LARSEN, Plaintiff,
v.
CLUB CORPORATION OF AMERICA, INC., Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Diane Larsen ("Larsen") has sued Club Corporation of America, Inc. ("CCA") and various of its subsidiaries' *fn1" (defendants are collectively referred to as "Clubs"), charging that they violated a provision of the Fair Labor Standards Act ("FLSA") (29 U.S.C. ยง 215(a)(3)) *fn2" by refusing to allow her to fill jobs at two clubs and by including false statements in her personnel file in retaliation for her asserting a right to overtime wages. *fn3" Clubs have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn4" For the reasons set forth in this memorandum opinion and order, Clubs' motion is granted.

 Facts5

 Larsen first started working for CCA-affiliated clubs in 1978, ultimately working for a total of five such clubs by transferring from one to another (D. 12(m) P 17; Larsen Dep. II 72 *fn6" ; Larsen Dep. II Ex. 2). On March 23, 1989 she resigned her job as a pastry chef at the Metropolitan Club of Chicago, Inc. ("Metropolitan"), a wholly-owned subsidiary of CCA, to become the Food and Beverage Manager at the Lakeshore Athletic Club ("Lakeshore"), which is managed by Lakeshore Management (D. 12(m) PP 2, 3).

 Shortly after that transfer (on April 7, 1989) Larsen consented to become a plaintiff in Avitia v. Metropolitan Club of Chicago, 1989 U.S. Dist. LEXIS 10411, No. 88 C 6965 (N.D. Ill.), a pending lawsuit that charged Metropolitan with violations of FLSA for failure to pay overtime wages (D. 12(m) P 4; P. 12(n)(2) P 18). *fn7" While at Lakeshore Larsen was neither harassed nor discriminated against because of her participation in that suit (D. 12(m) P 5). Ultimately on April 2, 1993 she was awarded $ 12,621 in damages for that claim (P. 12(n)(2) P 19; P. Ex. 21).

 Meanwhile, in May 1990 Larsen had telephoned head chef James Draveneck ("Draveneck") at the CME Club ("CME"), a private club managed by Exchange, to inquire about the possibility of a job (D. 12(m) P 7). *fn8" On May 28 the two of them met with CME manager Donna Kozak ("Kozak") to discuss that possibility (P. 12(n)(2) P 8; Larsen Dep. I 18). According to Larsen, she was told that a position would be available shortly because an employee was going to take maternity leave (D. 12(m) P 18; Larsen Dep. I 19). Assertedly Kozak said the position would pay $ 10 an hour, but then agreed to the $ 12 an hour that Larsen "thought [she] was worth" (Larsen Dep. I 19). After the meeting Larsen says she spoke alone with Draveneck in his office, and he told her that she was to start the first Monday after July 4 and her hours were to be 5 a.m. to 1 p.m. Monday through Friday (Larsen Dep. I 19-20; P. 12(n)(2) P 8). *fn9"

 About a week before Larsen thought that she was to begin working at CME she called Draveneck, who told her that "I can't hire you. . . .Donna [Kozak] said [I] couldn't hire [you]" (D. 12(m) P 9; Larsen Dep. I 22). Larsen promptly called Meadow's chef Greg Carso ("Carso") to apply for the sous chef position that Robinson had vacated to fill the position that Larsen had left at Lakeshore (D. 12(m) P 22). According to Larsen, Carso told her that he needed "some help" but would first have to discuss the matter with Meadow's manager Steve Strumpf ("Strumpf") (P. 12(n)(2) P 30; Larsen Dep. I 25). When Larsen again called on July 4, Carso said he could not hire her but didn't say why (P. 12(n)(2) PP 32, 33; Larsen Dep. I 26-27). Larsen then called Meadow's restaurant manager Mark Condie ("Condie"), who said that he would look into the matter (P. 12(n)(2) P 34) and who later met with Carso. According to Condie, Carso said that Larsen would not be hired "because she has a lawsuit going against CCA or Metropolitan Club" (P. 12(n)(2) P 35; Condie Dep. II 11). *fn10"

 Larsen also attempts to create the inference that CCA regional manager Richard Barbrow ("Barbrow"), who supervised CME and Meadow in addition to other clubs (P. 12(n)(1) P 25), ordered that she not be hired in retaliation for pursuing a FLSA claim. Larsen argues that such an inference is reasonable based on Barbrow's knowledge of her involvement in Avitia and his supervisory role over CME and Meadow. That contention must be and is rejected. Although Barbrow knew at some unspecified time that Larsen was a plaintiff in Avitia (Barbrow Dep. 21-22), he swore that he was not aware that she had applied for positions at CME and Meadow and that he never directed any club not to hire her (Barbrow Aff. PP 3-4). *fn11" Larsen has offered nothing substantive to contradict or even to discredit that. *fn12"

 As to Larsen's application for a position at CME, both Kozak and Draveneck state that after their meeting with Larsen the two of them discussed the matter later that same day. At that time Kozak decided not to fill the position Larsen was applying for in order to cut costs, so she told Draveneck not to hire Larsen (D. 12(m) P 18; Kozak Aff. P 3; Draveneck Dep. 35-36). At the time that decision was made, neither was aware that Larsen had a suit pending against Metropolitan (Kozak Aff. P 5; Draveneck Dep. 29-30). Moreover, Larsen admits that she knows of no one other than those two who was involved in the decision not to hire her at CME (D. 12(m) PP 15, P 18).

 As for Larsen's effort's to get a job at Meadow, Strumpf attested that he met with Carso and "decided not to incur the payroll expense of an additional employee," so that no one was hired for the position (Strumpf Aff. P 5). Strumpf swore that during that meeting he did not know that Larsen had applied for Robinson's old position, and in fact her name was not mentioned at all (id. P 7). Similarly, Carso testified that Larsen's involvement in Avitia was not a factor considered in the decision not to hire her, but rather that the decision was made in light of the fact that Meadow's actual revenues were roughly $ 125,000 below budget (D. 12(m) PP 27, 28).

 To this day (or more precisely, as of the time that the filings were made in connection with Clubs' current motion) neither of the positions for which Larsen applied has even been filled--part of defendants' continuing efforts to cut costs (D. 12(m) PP 18, 29; Kozak Aff. P 3; Strumpf Aff. P 6). Exchange has continued to operate without the kitchen job that had been held by the employee who left for maternity leave (D. 12(m) P 18), while Meadow has permanently reduced its staff from two sous chefs to one (id. P 29). That means that between 3 and 3-1/2 years have elapsed with no one holding either of the jobs that Larsen claims were denied to her as a retaliatory measure.

 On May 21, 1991, roughly a year after Larsen left Lakeshore, either Robinson or Lakeshore's Controller Michael Dow filled out an "EMPLOYEE SEPARATION FORM." *fn13" That form listed Larsen's last day as April 1, 1990 and, under the section headed "QUIT," listed as the reasons for her leaving two items: ...


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