Judge Denies Hooters Argument to Dismiss Case

Roseville – Eastpointe Eastsider

Robin Ruehlen, C & G Staff Writer
September 1, 2010

ROSEVILLE - It could be up to a jury to decide the fate of a weight discrimination lawsuit filed by two ex-Hooters waitresses last spring. In a written opinion issued Aug. 23, Macomb County Circuit Court Judge Peter Maceroni denied a summary disposition by Hooters of America Inc. that claimed defendants Cassandra Marie Smith and Leanne Convery were bound by an arbitration agreement signed upon their hire.

Maceroni wrote that the defendants "may not have knowingly waived their right to litigate their claims in court should their claim be proven that they were never afforded an opportunity to take the agreement with them to consult with counsel." In the disposition, Hooters of America Inc. alleged that the women signed an agreement that effectively would waive their rights to a jury trial in the event of a legal dispute, along with other employment papers.

However, the plaintiffs argued that not only was the arbitration agreement not explained during the hiring process, but that they were not allowed to take the documents off the premises for an attorney to review.

Maceroni wrote that although the court did not find the arbitration agreement to be deceptive, there might not have been "a meeting of the minds or mutual assent regarding the plaintiff’s requirement to submit to arbitration." Kristin Priest, a spokeswoman for the plaintiffs ‘attorney, Richard Bernstein, said the opinion was "the best possible outcome." "The Bernsteins consider it to be a big victory at this stage of the case," she said.

Smith, a Roseville resident, filed a civil lawsuit against the company on May 24, claiming that she was "admonished, disciplined and counseled" by supervisors about the fit of her uniform, and told to join a gym in order to lose weight and improve her looks within 30 days, or face termination.

The 5-foot-8 inch tall, 132.5-pound college student wore an extra-small size uniform, and has said she was actually 145 pounds at the time she was hired.

The attorney for Hooters of America Inc., Daniel G. Cohen said the company is confident that the legal position in Maceroni's opinion won't be sustained, and is now considering procedural options.

Cohen said Hooters' employment application specifically informs all applicants in capital letters at the top of the application that:

The application will be considered only after you have agreed to arbitration.
You may obtain a copy of this agreement and the arbitration rules upon request.
You may take as much time as you like to review this agreement.
You are encouraged to seek legal advice before signing the agreement to arbitrate.

"Accordingly, no new hire can claim they were blindsided by the presentation of an arbitration agreement after they were hired, and Hooters ultimately expects to prevail on this issue," Cohen said. Convery filed a similar lawsuit on June 2 claiming she was hired at the Roseville location in March of 2004 and later terminated in August of 2009 for violating "weight probation policies."

At 4 feet 11 inches tall and 115 pounds, Convery said was told on July 6, 2009, that she had 30 days to make her extra-small tank top and shorts "fit more properly" or lose her job. She then launched into a crash diet, losing 15 pounds in 30 days, but was fired anyway on Aug. 10 for showing "no improvement." The suit also alleges Convery was encouraged by fellow Hooters employee to take weight suppression drugs.