United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [#14] AND DENYING PLAINTIFF'S MOTION FOR LEAVE
TO FILE A FIRST AMENDED COMPLAINT [#17]
Page Hood, United States District Court Chief Judge
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.
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).
reasons that follow, the Court grants the Motion for Summary
Judgment and denies the Motion for Leave and the Motion for
Rule 11 Sanctions.
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
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.
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]
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]
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]
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.
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 ...