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Evans v. Canal Street Brewing Co., LLC

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

April 4, 2019

TRACY EVANS, Plaintiff,
v.
CANAL STREET BREWING CO. LLC, d/b/a FOUNDERS BREWING COMPANY, Defendant.

          Elizabeth A. Stafford Magistrate Judge

          OPINION AND ORDER GRANTING DEFENDANT'S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF #21)

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On August 22, 2018, Plaintiff Tracy Evans, an African-American male previously employed by Defendant Canal Street Brewing Co., LLC, d/b/a Founders Street Brewing Co. (“Founders”), filed a six-count Complaint (ECF #1) against Founders, alleging race discrimination, failure to promote, and retaliation under 42 USC §1981, and Michigan's Elliott-Larsen Civil Rights Act (“ELCRA”), MCL §37.2101, et seq. On October 1, 2018, Plaintiff received a Notice of Right to Sue from the U.S. Equal Opportunity and Human Rights Commission (“EEOC”). On October 12, 2018, Plaintiff filed an eight-count First Amended Complaint (ECF #10), to include two counts under Title VII, 42 USC §2000e, for race discrimination and retaliation, as follows:

Count I: Racial Discrimination - 42 USC §1981
Count II: Denying Promotion on the Basis of Race - 42 USC §1981
Count III: Retaliation - 42 USC §1981
Count IV: Racial Discrimination - ELCRA, MCL §37.2101 et seq.
Count V: Denying Promotion on the Basis of Race - ELCRA, MCL §37.2101 et seq.
Count VI: Retaliation - ELCRA, MCL 37.2101 et seq.
Count VII: Racial Discrimination - Title VII, 42 USC §2000e
Count VIII: Retaliation - Title VII, 42 USC §2000e

         Before the Court is Defendant's Amended Motion for Partial Summary Judgment (ECF #21) seeking dismissal of portions of Plaintiff's Amended Complaint on the grounds that his claims are predominantly barred by a contractual period of limitations within the Confidentiality Agreement that Plaintiff executed before he commenced his employment with Founders. (Def.'s Am. Mot. Nov. 20, 2018, ECF #21, PgID 214.) Defendants do not seek dismissal of Plaintiff's claims for discriminatory and/or retaliatory termination under ELCRA, Section 1981, and Title VII or other discriminatory and/or retaliatory conduct occurring after February 23, 2018 under ELCRA and Section 1981.

         On October 22, 2018, Founders answered the Amended Complaint. (ECF #13.) On November 30, 2018, Founders filed the instant Motion for Partial Summary Judgment. (ECF #15.) On December 21, 2018, Plaintiff filed his Response (ECF #17), and on January 3, 2019, Founders filed its Reply in support of its Motion (ECF #18). Defendant filed an Amended Motion for Partial Summary Judgment on March 12, 2019 to comply with rules regarding font size. (ECF #21.) The Court held a hearing on Defendant's Motion on March 29, 2019.

         II. FACTS

         Plaintiff, an African-American male, began his employment with Founders on November 4, 2013 as a Packaging Machine Operator at its Grand Rapids, Michigan facility. (Am. Compl. ECF #10, PgID 76, ¶9; Def.'s Am. Mot. ECF #21, PgID 214.) On October 29, 2013, six days before beginning his employment, Plaintiff signed a Confidentiality Agreement (“Agreement”) with Founders, which contained, on Page One, the following “Limitation on Claims:”

By accepting or continuing employment at the Company, you agree that any action or suit arising out of your employment or termination of employment, including but not limited to, claims arising under state, federal or local statutes or ordinances, must be brought within the following time periods: (a) for lawsuits requiring a Notice of Right to Sue from the EEOC, within 90 days after the EEOC issues that Notice; or (b) for all other lawsuits, (i) within 180 days of the event(s) giving rise to the claim, or (ii) the time limits specified by statute, whichever is shorter. I waive any statutes of limitation that exceed this time limit.

         (Answer to Am. Compl., Oct. 22, 2018, ECF #13-1, Ex. A, PgID 118.) An applicant's signed document was a condition precedent to employment at Founders.

         During Plaintiff's tenure at the Grand Rapids facility, he claims that he was subject to intentionally discriminatory acts, such as receiving harsher discipline than his white co-workers for tardiness. (Am. Compl., ECF #10, PgID 76, ¶13.) In 2015, Plaintiff discovered that the upstairs and downstairs office printers were differentiated with discriminatory names (“white guy printer” and “black guy printer”). (Id. at PgID 76, ¶14.)

         Also in 2015, Plaintiff claims that two white co-workers were chosen over Plaintiff for promotion to Production Lead, despite the fact they had not been at Founders as long as Plaintiff, and both white employees had committed “terminable” offenses prior to their promotions. (Id. at PgID 77, ¶15.)

         In October 2017, Plaintiff applied for and received a “lateral” transfer to become “Events and Promotions Manager” in the newly-opening taproom in Detroit, Michigan (“Taproom”). Before he moved to Detroit, a Grand Rapids employee allegedly stated to Plaintiff, “What's up with Detroit my n*****?” Plaintiff complained to the employee and to Defendant's human resources department, which did not terminate that employee. (Id. at PgID 77, ¶16.) The Amended Complaint alleges that “similar racial incidents continued to occur in Detroit as well.” (Id.) Plaintiff does not provide the dates or approximate dates of these incidents.

         One alleged incident at the Taproom involved a discussion of Detroit's Ex-Mayor Kwame Kilpatrick, where a white co-worker allegedly stated that he needed to explain the meaning of “head n***** in charge” to Plaintiff. (Id. at PgID 76, ¶10.) Plaintiff complained to human resources employee Marguex Bouwkamp and General Manager Dominic Ryan, who “wrote up” the employee but allegedly did nothing further. (Id. at PgID 78, ¶19.) Plaintiff later “heard” that this employee was “still making racist comments about how ‘dark' the [T]aproom's cliental [sic] is.” (Id. at PgID 78, ΒΆ20.) Plaintiff also stated that he was given projects to complete ...


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