Lisa A. Amato, OSB No. 920253 

e·mail: laa@wysekadish.coll1 

WYSE KADISH LLP 

621 SW Morrison. Suite 1300 

Portland, Oregon 97205 

Telephone: (503) 228-8448 

Facsimil e: (503) 273 -9135 

Of Attomeys for Defendant 

BURGERVILLE, LLC 

UN ITED STATES DISTRICT COURT 

FOR TH E DISTRICT OF OREGON 

SYLV IA M. PHARR, 

Plaintirr, 

v. 

BURGERV ILLE, LLC, dba 

BURGERVILLE, 

Defendant. 

(Portland Division) 

) Case No. 3: I4-cv-I404-PK 

) 

) 

) DECLARATION OF GEOFF HELZER 

) IN SUPPORT OF DEFENDANT'S 

) MOTION FOR SUMMARY JUDGMENT 

) 

) 

) 

) 

----------------------- ) 

I, Geoff Helzer, do depose and state as fo llows: 

A. Burgervillc, LLC 

I. I am the General Manager of the Burgerville Hawthorne location. I was the 

General Manager during Sylvia Pharr's employment. 

2. This Declaration is based on my personal knowledge orthe facts and circlIlllstances 

of this maller, Burgerville 's poli cies and procedures, and Ms. Pharr's pe rsonnel fil e. 

3. Specific to Ms. Pharr's employment, I consulted and worked directl y with Ms. 

PAGE - I DECLARATION OF GEOFF HELZER IN SUPPORT OF DI::FEN DANT'S MOTION FOR SUMMARY 

JUDGMENT 
Pharr, Assistant Managers Leah Huntington and Pangia Xiong, and Lacey Halpern at Xenium. 

Burgerville utili zes Xellium, a human resources consulting firm, and Lacey Halpern, PHR, was the 

designated HR Business Partner for Burgerville on this matter. 

4. Crew Members perform the bulk of tile work associated with serving Burgerville's 

customers. The duties of the Crew Members include taking Clistomer orders while standing at the 

cash register or drive-through window; gathering food items to fill clistomer orders; operating the 

grills; cleaning and mopping the entire restaurant and collecting litter in the parking lot; restocking 

supplies and maintaining equipment as needed throughout the day; and replenishing soft drinks 

and french fries, among other tasks. Crew Members perform these duties as assigned, based on 

their skills and performance, but they are all part of the same job description and pay range. 

Exhibit I is a true and correct copy of Burgerville's Position Description for Crew Member. 

5. Burgerville has a zero tolerance policy toward drugs and/or alcohol in the 

Workplace and where Burgerville has probable cause that an employee is in violation of this 

policy, the employee wi ll be required to submit to testing to determine the presence, or use or any 

involvement with alcohol or drugs. An employee's failure to provide samples for testing will be 

considered insubordination and grounds for immediate suspension and later termination. Exhibit 2 

is a true and correct copy of Burgerville's Alcohol and Dmg Free Workplace Policy and Probable 

Calise Drug Test signed by Ms. Pharr. 

B. Plaintiff Sylvia Pharr's Employment 

6. Ms. Pharr was hired as a Crew Member on March 4. 2012, and initially indicated 

that she was available to work "all days and all hours." Exhibit 3 is a true and correct copy of Ms. 

Pharr's work availability on her date of hire. 

7. Burgerville managers took Ms. Pharr' s availability preferences and skills into 

consideration when assigning her work shifts, which needed to be balanced with the preferences 

and ski lls of the nearly 40 other Crew Members at this restaurant. 

8. Ms. Pharr had some diffi culty with some of the duties of her position, but continued 

to work toward improvement. 

9. In September, 20 12, Ms. Pharr had a "till shortage," and received a corrective 

action. Exhibit 4 is a true and correct copy of the September 3, 20 12 Employee Corrective 

Action. 

10. In late 2012 Mr. Pharr began to ask to be assigned for more hours and to work at the 

drive-through. In response to Ms. Pharr's requests, she began to be trained on the drive-through 

window. In total, she was assigned three separate training or shadow shifts on the drive through. 

but she made several mistakes, including double-made milk shakes, a back-up on food being 

served, and not keeping up with making fries. Exhibit 5 is a true and correct copy of Ms. 

Huntington's note to Ms. Pharr's personnel file documenting Mr. Pharr's performance on the drive 

PAGE - 2 DECLARATION OF GEOFF HELZER IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY 

JUDGM ENT 
through. 

11 . On January 11,2013, Ms. Pharr asked Ms. Huntington ifshe could have more work 

hours. Exhibit 6 is a true and correct copy of Ms. Huntington's note to Ms. Pharr's personnel file 

documenting Mr. Pharr's request for more hours. 

12. On January 18,20 13, Ms. Pharr asked Ms. Huntington if she could have more 

hours and be scheduled on drive-through. Exhi bit 7 is a true and correct copy of Ms. 

Huntington's note to Ms. Pharr's personnel fi le documenting Mr. Pharr's request. 

13. On February 18, 2013, Ms. Huntington and I tal ked with Ms. Pharr about her 

requests for more hours and to work at the drive-through. Generally, once an employee shows 

proficiency on counter i.e. limited errors, strong multi-tasking ability we schedule a person for a 

shadow shift on drive-th rough to initially see ifit is a fi t, whi ch we did for Ms. Pharr in December 

2012. If the drive-through experience goes well we move forward with a morc formal training 

process on drive-through. In Ms. Pharr's situation, we were not seeing proficiency with her 

counter duties. She was not a strong multi-taske r and made significant errors as compared to 

other employees. We explained to Ms. Pharr that her outgoing demeanor was beller suited for the 

slower pace of counter with more time to interact with guests and a much more forgiving 

atmosphere for potential errors. Exhibit 8 is a true and correct copy or Ms. Huntington 's note to 

Ms. Pharr's personnel file documenting the conversation. 

14. In March 2013, Ms. Pharr continued to press for more hours and to work the 

drive-through and we met with her aga in to explain to her that her skill set was best assigned to the 

counter. Exhibit 9 is a true and correct copy of Ms. I-!untington's note to Ms. Pharr's pe rsonnel 

fi le documenting the conversation. 

15. In May 20 13, Ms. Pharr had her first formal performance review in which we noted 

areas of improvement, including improvement in areas of speed, accuracy, communication, and 

time management. As part of the perfonnance review, Ms. Pharr completed a self-appraisal and 

she noted similar areas for her improvement. Exhibit lOis a true and correct copy of Ms. Pharr's 

May 2013 performance review and self-appraisal. 

16. On June 4, 20 13, Ms. Pharr reduced her availabil ity for work and no longer wanted 

to work Friday or Saturday after 5:00 p.m. Exhibit 11 is a true and correct copy of Ms. Pharr's 

work availability as of June 4, 2013. 

17. Ms. Pharr continued to have performance deficiencies wi th accuracy, efficienc y, 

communication and "listening and recall awareness" such as being able to fill a guest's order with 

the correct side dishes without having to repeatedly check the order). J and the Assistant 

Managers spoke with Mr. Pharr about these performance deficiencies frequent ly. 

18. On June 19, Ms. Halpern and I met with Ms. Pharr to discuss her job performance. 

Ms. Pharr asked for written feedback and communication to hclp her better perform her job duties. 

PAGE - 3 DECLARATION OF GEOFF HELZER IN SUPPORT OF DEFENDANT' S MOTION FOR SUMMARY 

JUDGMENT 
I prepared an Individual Development Plan (IOP) which is a tool used by Burgerville to 

communicate areas for improvement. 

19. On June 26, 2013, Ms. Halpern and I met with Ms. Pharr to discllss the lOP and 

further discuss the areas in which we wanted to see improvemenl. Exhibit 12 is a true and correct 

copy of the lOP given to Ms. Pharr. 

20. On July 29, 2013, at the end of Ms. Pharr's shift (approximately 11:00 p.m.). Ms. 

Pharr confronted Ms. Huntington in a confrontational and aggressive tone regarding her 

displeasure with her schedul e and Ms. Huntington's failure to honor her preferences for Friday and 

Saturday nights off. At the end of this conversation, Ms. Pharr accused Ms. Huntington of being 

a racist for not scheduling her at the drive-through and for req uiring her to work the lot/lobby shifts 

and closing shifts. Exhibit 13 is a true and correct copy of the written report prepared by Ms. 

Huntington in Ms. Pharr's personnel file. 

21. Upon learning about the July 29, 2013 incident, I wanted Ms. Pharr's all egations of 

discrimination investigated. I asked Ms. Halpern to promptly investigate this allegation of 

discrimination. 

22. On or about August 13, 2013, Ms. Halpern and I met with Ms. Pharr to discuss the 

July 29 incident and to learn from her what happened. 

23. On August 25, 20 13, Ms. Pharr again reduced her availabi lity for work and no 

longer wanted to work any day after 5:00 p.m. Exhibit 14 is a true and correct copy of Ms. Pharr'S 

work availability as of August 5, 2013. 

24. On approximately August 30,2013, Ms. Halpern finished her investigation of Ms. 

Pharr's allegations of discrimination and concluded that there was no evidence of discrimination. 

25. I finalized the verbal warning for Ms. Pharr's inappropriate behavior on July 29. 

On September 4, 2013 , Ms. Halpern and I met with Ms. Pharr and discussed with her the verbal 

warning. Exhibit 15 is a true and correct copy of the verbal warning. 

26. The original lOP was scheduled to proceed for 30 days at which point we were 

going to assess Ms. Pharr's improvement. During that 30 day period and before the July 29, 2013 

incident with Ms. Huntington, Ms. Pharr took personal leave from work and there was insufficient 

time to allow Ms. Pharr to improve under the lOP. I discussed this with Ms. Pharr and she agreed 

that we should restart the lOP to give her time to improve and for Burgerville time to help Ms. 

Pharr in her improvement. Exhibit 16 is a tme and correct copy of the restarted lOP dated 

September 4, 2013. 

27. Following the restart of the lOP, Ms. Pharr asked for additional written 

communication about her day~to-day performance so we established a seri es of Records of 

Conversation and Coaching. The goal was that on each shift, a manger or team lead would 

PAGE - 4 DECLARATION OF GEOFF HELZER IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY 

JUDGMENT 
provide Ms. Pharr about timely feedback on her performance each day. Exhibit 17 is a true and 

correct copy of the Records of Conversation and Coachi ng. 

28. On November 9, 2013, Ms. Pharr's supervisors were Leah Huntington and Pangia 

Xiong. I received a call from Ms. Huntington informing me that she and Ms. Xiong felt they had 

probable cause to conduct an on-the-job alcohol sobri ety test based on Burgerville's policies and I 

asked them to complete an observed behavior checklist. 

29. Ms. Huntington and Ms. Xiong completed the observed behavior checklists and 

documented their observations, pursuant to the Probable Calise Drug Test policy in which a 

manager verifi es observations if possible. Exhibit 18 is a true and correct copy of Ms. Huntington 

and Ms. Xiong's observed behavior checklists and summary of their observations. 

30. After completion of the observed behavior checklist and consulting with me, 

American Medical Response (AMR) was called to conduct an alcohol breathalyzer test based on 

reasonable suspicion that she was under the innucnce of alcohol in violation of Burgerville's 

policies. 

3 1. Ms. Pharr was given a urine drug test by the AMR tech. When the AMR tech 

attempted to give Ms. Pharr the breathalyzer test, Ms. Pharr refused the test. Ms. Pharr then left 

the Hawthorne store premises, Safe transportation to her place of residence was also offered, 

which she refused. Exhibit 19 is a true and correct copy of the AMR incident report. 

32. After the alcohol testing incident, I consulted with Ms. Huntington and Ms. 

Halpern about the incident and we evaluated Ms. Pharr's continued employment. I decided that 

pursuant to Burgerville's Alcohol and Drug Free Workplace Policy that Mr. Pharr's employment 

would be terminated as of November 9, 2013. Exhibit 20 is a true and correct copy of Ms. Pharr's 

termination notice. 

I dechlre under pemllty of perjury under the Imvs of the United Stl:ltes of America that the 

foregoing statements are true and correct. 

Dated this i h day of August, 2015. 

BY: lsi Geoln-lelz~~Y ~-~, Geoff Helzer ~ 

PAGE - 5 DECLARATION OF GEOFF HELZER IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY 

JUDGMENT