O.C. Chef Fired Because of Age Wins Appeal

An appeals court ruled Thursday that a 63-year-old chef, fired from his job at a Black Angus restaurant in Garden Grove, was a victim of age discrimination and entitled to $290,932 in compensation.

In its ruling, the appeals court pointed to a note by the chef’s boss which said, “On or about March ’87 we are going to get rid of all chefs over 40.”

The 4th District Court of Appeal upheld a jury verdict in favor of chef Rex Kinney, who in 1981 was named the American Culinary Federation’s local chef of the year.

“Many a drop of good broth is made in an old pot,” wrote Presiding Justice David G. Sills in a unanimous decision laced with culinary references.

“I feel great. I’m on cloud nine,” said Kinney. Unable to find a comparable job or collect the money while the case was on appeal, Kinney said he sold his house in Santa Ana and moved to Texas.

Reached there Thursday evening, Kinney, now 67, was preparing a gourmet meal for 160 people as a volunteer chef at the local Lion’s Club.

“It should send a message to the people who own these big companies that they can’t just discriminate against older people because of their age,” he said, “and I think it should send a message to the employees as well, that they shouldn’t sit down and take it.”

Kinney worked for Black Angus, a chain of steak houses owned by American Restaurant Group, from 1979 until he was fired in 1987.

His attorney, Dirk Bruinsma, said, “These people just willy-nilly went through and got rid of all the old people.” Five other Black Angus employees were also fired, he said Thursday.

Attorneys for American Restaurant Group could not be reached for comment Thursday. The restaurant’s attorneys had argued before the appeals court that the verdict against the firm was not warranted and the amount of the damages was excessive.

But the justices disagreed. Kinney, who was responsible for training other chefs, often worked 12 to 16 hours a day, never refused night or weekend shifts and never complained of any medical problems, the justices noted. “In fact, once, when he hurt his back picking up something heavy, he still managed to get to work by having his wife drive him,” Sills wrote.

Kinney said Thursday he also trained student chefs at Golden West College, taught chefs at Goodwill Industries how to cook for soup kitchens, and volunteered for the Boy Scouts of America Inc. He said he wanted to continue working until at least age 70.

The Orange County jury that first heard Kinney’s case ruled in his favor in a 12-0 verdict, awarding him $196,359 in economic damages. With a 10-2 split, the “ticked-off” jurors also awarded him $40,000 in punitive damages, Bruinsma said.

Former Orange County Superior Court Judge Gary L. Taylor, now a federal judge, also awarded Kinney $54,573 in attorneys fees and costs, according to the decision.

The American Restaurant Group “contends the trial judge committed a baker’s-dozen errors,” Sills wrote. “We disagree and affirm.

“The first batch of errors ARG attempts to bake concerns sufficiency of the evidence,” Sills wrote, concluding that the evidence of age discrimination was indeed ample.

American Restaurant Group took over the Black Angus sometime after June, 1986, and Tony Bacerra was named “executive chef,” Sills wrote.

“One of Bacerra’s responsibilities was the ‘termination’ of Black Angus employees,” the justice wrote. “Like the Lord High Executioner in the Mikado, Bacerra developed a little list of those he thought never would be missed. Kinney’s name was on the top.”

In May, 1987, Bacerra told other employees that Kinney “wasn’t young enough to stay on his feet as many hours as they looking for,” that he “was just too old to be a chef in the company” and that he lacked the stamina of a younger person, Sills wrote.

The following month, Bacerra asked Kinney to resign and promised him a retirement package of eight weeks of pay and 10 days vacation, Sills wrote.

“Kinney was ‘terminated’ at the end of June, 1987, and replaced by a man 23 to 25 years old. . . ,” Sill wrote. “Bacerra’s statements clearly show Kinney was slated for the chopping block because of his age. . . .”

“The jury was entitled to conclude ARG was trying to deceive Kinney by cooking up a bogus retirement plan--in effect, trying to mask the rotten meat of age discrimination with the spice of a bogus ‘retirement plan,’ ” Sills wrote.

The court also rejected arguments by the restaurant chain that the damages awarded Kinney were unjustifiably high, that the lawyers’ fees were excessive, and that Judge Taylor had erred in allowing the introduction of evidence about Kinney’s past job performance.

“An age discrimination case which does not allow the plaintiff to introduce evidence of good job performance is like an omelette without eggs. . . ,” Sills wrote.

The court affirmed the trial court decision “in its entirety,” enabling Kinney to collect in compensation the entire jury verdict, his attorney’s and court costs. In addition, the justices said, ARG should pay the costs of Kinney’s appeal.

Kinney said Thursday he has not been able to find a job equal to his experience and is “pretty much retired now” though he works part-time doing demonstrations at food shows.

He said he plans to use the money to build a house in Texas and start a small cattle ranch.

As to the secret of his youthful vitality, Kinney said: “I don’t smoke. And I always have good women. And I eat good food.”