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Davis v. Wings Twenty Six Inc.

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

December 19, 2017

SAUL DAVIS, Plaintiff,
v.
WINGS TWENTY-SIX, INC., JASON GARRITY, and ERIC FRIESNER, Defendants.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [#14] AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT [#17]

          Denise Page Hood, United States District Court Chief Judge

         I. INTRODUCTION

         Pro se Plaintiff filed this action on May 18, 2016, alleging that Defendants discriminated against him on the basis of his race, in violation of The Civil Rights Act of 1991 (42 U.S.C. § 1981) and the Michigan Elliott-Larsen Civil Rights Act (M.C.L. § 37.2101, et seq.). On March 24, 2017, Defendants filed a Motion for Summary Judgment. [Dkt. No. 14] Plaintiff did not file a response to Defendants' Motion for Summary Judgment prior to the hearing held on June 21, 2017. Plaintiff appeared at a June 21, 2017 hearing, and the Court granted Plaintiff the opportunity to file a response after the hearing. Plaintiff filed a response on June 28, 2017, and Defendant filed a reply on July 7, 2017.

         On April 24, 2017, Plaintiff filed a Motion for Leave to File and Serve a First Amended Complaint on Consent or with Leave of the Court (“Motion for Leave”). [Dkt. No. 17] Defendants filed a response to Plaintiff's Motion for Leave, and Plaintiff did not filed a reply. The Court held a hearing on Defendants' Motion for Summary Judgment and Plaintiff's Motion for Leave on June 21, 2017. On July 5, 2017, Plaintiff filed a Motion for Rule 11 Sanctions. [Dkt. Nos. 25/26] Defendants filed a timely response to Plaintiff's Motion for Rule 11 Sanctions. The Court, having concluded that the decision process would not be significantly aided by oral argument, orders that the Motion for Rule 11 Sanctions be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R. 7.1(f)(2).

         For the reasons that follow, the Court grants the Motion for Summary Judgment and denies the Motion for Leave and the Motion for Rule 11 Sanctions.

         II. BACKGROUND

         Plaintiff, an African-American male, worked for Defendant Wings Twenty Six, Inc. (d/b/a Buffalo Wild Wings) (hereinafter “BWW”) in Ann Arbor, Michigan, from February 2014 until he was terminated in April 2016. In addition to working at the Ann Arbor BWW, Plaintiff had worked intermittently at two other BWW restaurants owned by BWW's parent company, JK&T Wings, Inc. (“JK&T Wings”), since 2005.

         Defendants Jason Garity (general manager) and Eric Friesner (manager) were Plaintiff's direct supervisors at the Ann Arbor BWW during Plaintiff's employment term at that restaurant. Joel Dover was the regional manager of JK&T Wings when Plaintiff's employment at BWW ceased.

         Plaintiff worked as a server and bartender at the Ann Arbor BWW, and he was a “certified trainer, ” which meant that he also trained other BWW employees. To become a “certified trainer, ” he had to demonstrate extensive knowledge of BWW's and JK&T Wings' employee handbook, policies, practices, and operations. The Employee Handbook for BWW and JK&T Wings employees provides, in part:

In order to ensure the safety of our employees and customers, the Company strictly prohibits the possession, use or being under the influence of alcohol, drugs and controlled substances on Company premises or while on Company business. Actions such as, but not limited to, the following are prohibited . . . The use, possession, transfer or trafficking of such intoxicants . . . in any manner during work hours . . . [or] on Company property.

[Dkt. No. 14, Ex. 5 at 34] According to Dover, employees also are prohibited from leaving the restaurant with alcohol. [Dkt. No. 14, Ex. 1 at ¶ 4] Plaintiff acknowledges having received the Employee Handbook and understanding the policies in it, which he had to in order to be a certified trainer. [Dkt. No. 14, Ex. 2 at 24, 27-28; Ex. 6]

         On Sunday morning, April 17, 2016, Plaintiff departed the Ann Arbor BWW's after working the closing shift. When he left the restaurant to get into his car, it is undisputed that he took a “to go” cup with him, and the “to go” cup contained beer. [Dkt. No. 14, Ex. 2 at 51 and 54] Friesner observed Plaintiff's conduct and, though he believed that Plaintiff's actions violated BWW policies, he did not state anything to Plaintiff because Friesner was not responsible for employee discipline. [Dkt. No. 14, Ex. 4 at ¶ 4] At his deposition, Plaintiff stated that he had engaged in the same conduct (taken a “to go” cup with beer in it) “pretty regular[ly].” [Dkt. No. 14, Ex. 2 at 59] Plaintiff states that he does not know whether Defendant (or any Defendant employee) was aware that Plaintiff engaged in that conduct prior to April 17, 2016, and Defendants deny any such knowledge. [Dkt. No. 14, Ex. 2 at 59; Ex. 3 at ¶ 7; Ex. 4 at ¶ 5]

         On April 18, 2016, Friesner informed Garrity of Plaintiff's conduct, and Friesner and Garrity reviewed security camera footage that showed Plaintiff pouring a beer into a “to go” cup. Garrity and Friesner then contacted Dover and shared that information with Dover. Dover states that he made the decision to discharge Plaintiff for violating BWW's policies against leaving the restaurant with alcohol. On April 21, 2016, Garrity and Friesner met with Plaintiff, informed Plaintiff that he was discharged and the reason for discharge, and gave Plaintiff a Performance Counseling Record that he signed. [Dkt. No. 14, Ex. 2 at 51-52, Ex. 7]

         Pursuant to an affidavit, Dover states that he has discharged at least three other employees for the same conduct (leaving a BWW restaurant with alcohol in a “to go” cup): (1) Sean B., from the BWW Ann Arbor restaurant; (2) Ryan S., from another BWW restaurant; and (3) Tony C., from another BWW restaurant. All three of those former BWW employees are Caucasian. Sean B. and Ryan S. held similar positions and performed substantially the same job duties as Plaintiff, and Tony C. was a manager. Dover asserts that BWW and JK&T Wings discharge all employees reported leaving their restaurants with alcohol.

         The Court finds that Plaintiff has not offered any evidence to refute the evidence submitted by Defendants. Plaintiff testified at his deposition that Friesner said the word “n ----- ” in Plaintiff's presence but not directly to Plaintiff. [Dkt. No. 14, Ex. 2 at 81] Plaintiff also testified that Friesner was joking when he said it. Id. Plaintiff testified that no ...


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