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Henry v. Outback Steakhouse of Florida, LLC

United States District Court, E.D. Michigan, Southern Division

April 18, 2017

BOBBIE HENRY, Plaintiff,

          Anthony P. Patti Magistrate Judge.



         Plaintiff Bobbie Henry worked at the Flint, Michigan Outback Steakhouse from 1997 until 2014. She was also a licensed medical marijuana caregiver, and one of her patients was a coworker at the Flint Outback. In the process of investigating four other Flint Outback employees for suspected drug activity, several of Henry's coworkers told management that Henry was selling drugs on the restaurant premises. When interviewed, Henry admitted she had sold medical marijuana to a coworker. As a result of this investigation, Henry and five other employees were terminated. Though the other five employees who were terminated were younger than she was, Henry now alleges that her termination was motivated by age discrimination. After careful consideration of the briefs and thorough review of the record, the Court finds that oral argument will not aid in resolving the pending motion. See E.D. Mich. LR 7.1(f)(2). Because Henry cannot raise a genuine issue of material fact as to whether Defendants' stated reason for termination-drug activity-was pretext for age discrimination, Defendants are entitled to summary judgment.


         Before the Court summarizes the record evidence in the case, it must address a discovery issue. Several of the witnesses in this case failed to appear for their scheduled depositions (or evaded service of subpoenas), but have offered affidavits in support of Henry's allegations of age discrimination at the Flint Outback.[1] Specifically, Chad Vining avers that he was formerly employed at the Flint Outback and heard managing partner Christine Tate say that they “wanted young blood to work in the restaurant.” (R. 49, PID 1412.) Kelana Fordham now denies making statements that Henry was selling drugs during an interview with management. (R. 49, PID 1403.) Similarly, Alex French now avers that she “never told [anyone on the management team] that Bobbie Henry was selling, buying, or using drugs while on the premises of Outback.” (R. 49, PID 1408.) Defendants say that Henry should not be allowed to rely on these affidavits in her summary-judgment response because these witnesses failed to appear for their depositions even as they remained in contact with Henry, and Henry told at least one of these witnesses that she could “hide” from Defendants' process server who was attempting to serve a deposition notice. (R. 47, PID 1345, 1361; R. 50, PID 1450.)

         Case law from this district supports this Court's authority to strike an affidavit from a witness who failed to appear for a deposition. In Dedvukaj v. Equilon Enters., LLC, 301 F.Supp.2d 664, 668 (E.D. Mich. 2004), aff'd, 132 F. App'x 582 (6th Cir. 2005), the court struck the affidavit of a corporate officer of the Plaintiff, where that officer did not appear for a deposition. As a general matter, the court reasoned, “defendant was entitled to receive such evidence, and digest it, during the discovery period prior to filing this summary judgment motion.” Id. It would be “unreasonable to rely on affidavit ‘evidence' from an individual who has made himself unavailable for discovery and for whom there is even no indication he will be available for trial, ” the court concluded. Id. The Dedvukaj court relied on Federal Rule of Civil Procedure 37(d), which allows a court to issue “orders in regard to the failure as are just” concerning the testimony of any “party or an officer, director, or managing agent of a party” who fails to appear for deposition.

         Courts in this district have applied Dedvukaj's reasoning to a situation where the non-appearing affiant was not an officer, director, or managing agent of a party. See McKellar v. State Farm Fire & Cas. Co., No. 14-cv-13730, 2016 U.S. Dist. LEXIS 8613, at *21 (E.D. Mich. Jan. 26, 2016); Bumpas v. Ryan, No. 3:07-cv-0766, 2013 U.S. Dist. LEXIS 77507, at *6 (M.D. Tenn. June 3, 2013). The McKellar court reasoned that allowing such a witness to offer “unchallenged affidavit testimony . . . would clearly violate the purpose of discovery.” McKellar, 2016 U.S. Dist. LEXIS 8613, at *22.

         One court has distinguished Dedvukaj, reasoning that “[t]he affiant who did not appear for deposition in this case was a third party, not under subpoena or other Court process, ” whereas in Dedvukaj, “the witness (affiant) who did not appear was an officer of the plaintiff corporation[.]” Airojet Charters, Inc. v. Catlin Ins. Co., No. 10-61671-CIV, 2011 U.S. Dist. LEXIS 159256, at *2 (S.D. Fla. June 9, 2011). Yet, Airojet does not help Henry: in that case, there were no allegations that the plaintiff had anything to do with the witness's failure to appear for deposition. Id. In this case, it does appear that Henry's conduct had something to do with Defendants' inability to depose the witnesses. During discovery, the Court held several phone conferences regarding Henry's contacts with French. During her deposition, Henry admitted to sending the following text message to French: “I want you to know they [Defendants] are trying to serve you [with a deposition notice]. I promise it is not from my lawyer. He promised to leave you alone, so hide if you want to. Have a great day.” (R. 43-3, PID 660.) And Henry also testified at her deposition that she exchanged text messages with Vining regarding his affidavit and promised she would “make it worth [his] while” by paying for the notary. (R. 43-3, PID 679.) Defendants inform the Court that in fact, they were unable to serve French, and Vining never appeared for his deposition. (R. 50, PID 1450.) And there is no indication that any of these three witnesses will voluntarily appear for trial, though it does appear that all three may live within this Court's subpoena power.

         The Court is troubled by Henry's contact with non-party witnesses who provided affidavits, yet failed to appear for scheduled depositions or evaded service. On these facts, Henry had some control over these witnesses and seeks the benefit of their affidavits, yet defendants have been denied the ability to depose them. In this situation, where one party has been in continued contact with non-party affiants but the other party has been denied the ability to question their statements, the Court finds that Dedvukaj's reasoning applies and the affidavits should be stricken. See Englar v. 41B Dist. Court, Civil Action No. 04-CV-73977, 2009 U.S. Dist. LEXIS 100949, at *14-15 (E.D. Mich. Oct. 29, 2009) (“To not permit the reconvening of Judge Cannon's deposition after he refused to answer questions at the first deposition, thereafter submitting two affidavits [offered in support of the plaintiff's case], would subvert the Court's obligation to ensure justice.”). Accordingly, the Court will not consider the affidavits of Kelana Fordham, Chad Vining, and Alex French on summary judgment.


         The Court now turns to the rest of the summary-judgment record. Where there are disputes, the Court views the facts in the light most favorable to Henry, the non-moving party.


         Plaintiff Bobby Henry has worked in the restaurant industry since 1984. (Id. at PID 429.) In 1996 or 1997, she started working at the Flint, Michigan location of Outback Steakhouse. She worked as a server, bartender, and “bar rep, ” doing the ordering and end-of-the-month supply counts. (Id. at PID 433.) Around the time of her termination, Henry was working as a bartender, but had moved to day shifts and would serve some tables as well. (R. 43-2, PID 447-48.) Henry says that she did well as an employee, citing an undated certificate for “Top Performing Bar Team.” (R. 49, PID 1427) and a note from Steve Rossi “express[ing] [his] appreciation on the exemplary comments we received from a grateful customer.” (R. 49, PID 1429.) In November 2014, at age 48, Henry was terminated. (Id.) She filed this lawsuit, alleging that she was terminated because of her age. (R. 43-2, PID 433.)

         Henry says that in November 2012, when Christine Tate took over as managing partner, the environment at the Flint Outback changed. (See R. 43-2, PID 434.) (Even so, during that time, Henry recommended that a high school friend, Michelle Edmonds, apply to work at Outback, calling it a “great place to work.” (R. 43-12, PID 1154.)) As managing partner, Tate was responsible for the hiring and firing of hourly employees. (R. 43-4, PID 714.) Assisting Tate during Henry's last year of employment at Outback was the manager for the Flint Outback, Toriano (“Tory”) Vancobb, and the restaurant's kitchen manager, Brian Gudzik. (R. 43-7, PID 884, R. 43-8, PID 979.) In turn, Tate reported directly to Jennifer Szewc, who is the joint-venture partner responsible for overseeing the Detroit-area Outback Steakhouse restaurants. (R. 43-6, PID 815.)

         Henry said that, after Tate took over, her shifts changed and she thought perhaps it was “[b]ecause I had been there for so long. Maybe they figured my age, I'm not a hundred percent. All I know is I was treated differently than the other younger employees who were doing the same job I was.” (R. 43-2 PID 453.) For example, there was an incident where Henry was required to purchase a certain type of slip-resistant shoe for work while the rule was not enforced for younger employees. (Id.) In her response brief, Henry says that her pay rate was also decreased without explanation, but she does not cite any evidence in the record to support that assertion.

         Michael Aplin avers that he was employed at the Flint Outback for approximately one year and quit because he felt management was being disrespectful to him because of his age (he is now “fifty plus” but his affidavit does not specify how old he was when he worked at Outback), that Tate and Vancobb would make “old people jokes, ” and that Henry was denied assignments in favor of younger employees, though he did not specify exactly what those assignments were. (R. 49, PID 1432.) Aplin elaborated on these statements at his deposition. He said that Vancobb would call him “old man, ” and call Henry an “old timer, old lady.” (R. 43-11, PID 1062.) He thought that Vancobb did this because he “really did think he was being funny.” (R. 43-11, PID 1064.) He testified that management “suddenly started asking every 21-year-old girl there . . . if they wanted to bartend, people that had never bartended before, and within a week they were working Friday and Saturday nights, which used to be Bobbi's shifts.” (R. 43-11, PID 1068.) It seems, however, that Henry asked to be put on the daytime shift: “[T]hey needed a daytime bartender because nobody else would do it. So, I said-I went to the manager and asked if I could just be the daytime bartender and still take tables and he informed me that is what they had planned for me.” (R. 43-2, PID 447-48.) Similarly, Michelle Edmonds testified that Vancobb called her “grandma”-but in a joking manner. (R. 43-12, PID 1166.) Finally, Davonte Smith testified that Christine Tate “had it out” for Henry, not because of her age, but because she had been working there for longer than other employees. (R. 43-10, PID 1028.)


         What ultimately led to Henry's termination was a “conduct unbecoming” investigation of several other Flint “Outbackers.” On November 16, 2014, Gudzik (the kitchen manager) observed employees Corey Avant and Mariah Nash exchange money for a “small black object, ” which the two later claimed was a bridge card. (R. 43-7, PID 910-19; 43-8, PID 990.) Shortly thereafter, Gudzik observed Avant exit the restaurant and exchange a small package with another employee, Kelana Fordham. (R. 43-7, PID 914; R. 43-8, PID 981.) Around that time, Vancobb saw Trressa Moore exchange money with Avant. (R. 43-7, PID 915.) Vancobb was unsure the purpose of the exchange between Moore and Avant. (R, 43-7, PID 916.) Moore later said that Avant needed change. (R. 43-7, PID 915.) Gudzik's suspicion, however, was that the exchanges had something to do with drugs. (R. 43-8, PID 979.) Henry asserts that she was not on the premises for these events or the three days afterward. (R. 49, PID 1385.)

         On November 18, 2014, Tate, Vancobb, Gudzik, and Szewc, had a conference call with Ladonis Toney-Pierce, Outback's Employee Relations Manager. (R. 43-8, PID 979.) After hearing a description of the activity of November 16, Toney-Pierce recommended to terminate all four employees-Avant, Nash, Fordham, and Moore. (R. 43-8, PID 979.) Those employees were ultimately terminated, but the management team first gave them the opportunity to meet with management and explain the activity. (R. 43-8, PID 991.) Their interviews implicated Henry.

         Gudzik initially testified that during those interviews, “The four Outbackers [who were terminated] had said that Bobbi was selling drugs to the staff and to the customers.” (R. 43-8, PID 991.) Later, however, he clarified that he only remembered that Fordham had said Henry was selling drugs. (Id. at PID 994.) Vancobb said that only Fordham mentioned that Henry was selling drugs (though it is unclear whether he was present for all of the interviews), and that Fordham became “emotional” during her interview: “I don't remember every word she used, but pretty much, I can't believe that I'm getting fired for this when Bobbie is dealing dope behind the bar, Dave's passing out candy to everybody who works.” (R. 43-7, PID 928.)

         As a result of this new information, the management team conducted additional interviews-fifteen, according to Tate. (R. 43-7, PID 921; R. 43-5, PID 782.) Tate testified that two additional employees, Alex French and Kelsie Corbray, stated that Henry was selling marijuana on the restaurant premises. (R. 43-5, PID 783; R. 43-7, PID 923.) Thus, Tate said, in taking subsequent action on Henry, she relied on reports from French, Corbray, and Fordham. (R. 43-5, PID 783.) It does not appear that anyone took notes during the interviews-Tate said she did not take notes, and was not sure whether Gudzik and Vancobb had either. (R. 43-5, PID 773.) No notes appear in the record.


         On November 20, 2014, Szewc attended a previously-scheduled meeting with other managers in the region. (R. 43-6, PID 818.) Toney-Pierce participated by phone. (R. 43-6, PID 817.) The Flint management team explained to Szewc and Toney-Pierce the situation with Henry and that they were still following up with the employees, and they would update her after that was done. (R. 43-6, PID 818.) Szewc stated, “We had some very clear conversation with Ladonis about [Henry's] tenure because she was the most tenured individual out of that entire group. . . . [A] 17-year career in a company, we take pride in that. And we don't take that lightly.” (R. 43-6, PID 819.) Thus, Szewc testified, “We hadn't decided anything at the time of the conversation.” (Id.) But Gudzik testified that even in light of the ongoing nature of the investigation, a decision was made that morning that because at least two people had made a statement that Henry was selling drugs on the restaurant premises, she should be terminated. (R. 43-8, PID 994.) That is, the management team had the “go-ahead, to support the decision to fire her, after they had talked to Bobbi.” (R. 43-8, PID 995.) Szewc stated that she would not say that Gudzik was “not correct. I know that they were given direction by Ladonis to follow up with some conversations in the restaurant. We had-that wasn't the only time they had talked to Ladonis.” (R. 43-6, PID 820.) In any event, it appears that the decision that Henry should be terminated came from Toney-Pierce, after she heard the reports accusing Henry of drug activity from the Flint management team. Szewc testified that “the decision that [Toney-Pierce] had advised ...

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