Grant v. Westfam Restaurants Inc et al

Filing 92

MEMORANDUM OPINION re: motion for partial summary judgment. Signed by US Magistrate Judge T Michael Putnam on 1/31/2013. (KAM, )

FILED
2013 Jan-31 PM 05:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TYRONE C. GRANT,
Plaintiff,
v.
WESFAM RESTAURANTS, INC.,
et al.,
Defendants.

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Case No. 5:10-cv-3457-TMP

MEMORANDUM OPINION
The matter before the court concerns plaintiff Tyrone C. Grant’s (hereafter
“plaintiff’) Motion for Partial Summary Judgment (Doc. 54), filed on November 15,
2011. The motion is supported by evidence such as depositions, documents, and
affidavits. Defendants Wesfam Restaurants, Inc. (hereafter “Wesfam”), Richard
Wyckoff, Thomas Dockery, and David Oakley (hereafter “defendants”) responded in
opposition to the motion (Doc. 63) on December 8, 2011. The plaintiff filed a reply
(Doc. 83) on January 12, 2012. Having considered the briefs and evidence submitted
by all parties, the court finds that the Motion for Partial Summary Judgment is due
to be DENIED.

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I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The party
seeking summary judgment “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
former FED. R. CIV. P. 56(c)). The movant can meet this burden by presenting
evidence showing there is no dispute of material fact, or by showing that the
nonmoving party has failed to present evidence in support of some element of its case
on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. There
is no requirement, however, “that the moving party support its motion with affidavits
or other similar materials negating the opponent’s claim.” Id. at 323.
Once the moving party has met its burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions of file,’ designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (quoting former FED. R. CIV. P.
56(e)). The nonmoving party need not present evidence in a form necessary for
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admission at trial; however, the nonmovant may not merely rest on its pleadings.
Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(a) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Id. at 322.
After the nonmovant has properly responded to a motion for summary
judgment, the court “shall” grant the motion if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court’s guide is the same standard necessary
to direct a verdict: “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52; see also Bill Johnson’s Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party “must do

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more than show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The evidence supporting a claim must be “substantial.” Marcus v. St. Paul Fire
and Marine Ins. Co., 651 F.2d 379, 382 (5th Cir. 1981). A mere scintilla of evidence
is not enough to create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d
859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381
F.3d 1243, 1249-50 (11th Cir. 2004). If the nonmovant’s evidence is so thoroughly
discredited by the rest of the record and is evidence that no reasonable jury could
accept, that evidence fails to establish the existence of a genuine issue of fact
requiring a jury determination. See Scott v. Harris, 550 U.S. 372, 380-81 (2007)
(“Respondent's version of events is so utterly discredited by the record that no
reasonable jury could have believed him. The Court of Appeals should not have relied
on such visible fiction; it should have reviewed the facts in the light depicted by the
videotape.”); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1290 n. 3 (11th
Cir. 2009). If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted);
see also Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989).
Furthermore, the court must “view the evidence presented through the prism
of the substantive evidentiary burden” so that there must be sufficient evidence on
which the jury could reasonably find for the nonmovant. Anderson, 477 U.S. at 254;
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Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir. 1988).
Nevertheless, credibility determinations, weighing of evidence, and the drawing of
inferences from the facts are the function of the jury, and therefore the evidence of
the nonmovant is to be believed and all justifiable inferences are to be drawn in its
favor. Anderson, 477 U.S. at 255. The nonmovant need not be given the benefit of
every inference but only of every reasonable inference. Brown v. City of Clewiston,
848 F.2d 1534, 1540 n.12 (11th Cir. 1988).

II. Relevant Facts
Applying these standards, the following facts appear to be undisputed or, if
disputed, are taken in a light most favorable to the non-moving defendants. This
action was filed by an African-American plaintiff for employment discrimination and
retaliation under Title VII, 42 U.S.C. § 2000e-5; the Civil Rights Act of 1991, 28
U.S.C. § 1981; and the Equal Pay Act, 29 U.S.C. § 206(d). There were additional
state law actions pleaded for abuse of process, defamation, invasion of privacy,
outrage, civil conspiracy, and negligence. The court dismissed certain claims in the
Order (Doc. 43) and Memorandum Opinion (Doc. 42) filed on May 20, 2011, but
claims remain pending under Title VII and Section 1981 for discriminatory denial of
promotion as to defendant Wesfam only and the Equal Pay Act for retaliation against
defendant Wesfam only. Additionally, plaintiff still has claims for abuse of process
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against all defendants,1 defamation against defendants Wesfam, Wyckoff, and
Dockery; conspiracy-to-commit-defamation claim as to defendants Wesfam,
Wyckoff, and Dockery; and a negligence claim against all defendants.
Plaintiff’s evidence shows that, from January 2008 to December 19, 2008, he
was employed as a general manager at one of defendant Wesfam’s Burger King
franchise restaurants in Athens, Alabama. His employment ended when defendants
accused him of failing to properly document cash-register “voids,” causing them to
suspect that he was misappropriating money.2 A review of daily packets for
plaintiff’s restaurant during November and early December 2008 revealed that there
were “missing voids” for about $4,000. Defendants Wesfam, Wyckoff, and Dockery
gave information concerning plaintiff’s “missing voids” and management of the
restaurant to the police in Athens, Alabama. This information indicated that plaintiff
was the manager on duty at the time the “missing voids” occurred. Athens police

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The defendants’ motion to dismiss did not challenge the abuse-of-process and negligence
claims pleaded in the amended complaint; therefore, the court had no occasion to consider them at
that time.
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“Missing voids” is the term used to describe when a “void” is reflected on a cash register,
but for which the supporting documentation is missing. A “void” can occurred properly when a
customer is refunded a purchase or a purchase is canceled before the customer makes payment. In
such instances, Wesfam procedures required the manager to approve the void and that the void be
documented. Documentation of the void required the manager to sign and retain the canceled sales
receipt showing the actual transaction that was voided. The voided sales receipts then were used to
reconcile the cashier’s cash drawer against the sales reflected on the cash register at the end of the
shift. The reconciliation reports, including the retained “voided” receipts, were stored as part of a
“daily packet.” Thus, a “missing void” is void reflected on the cash-register tape, but for which the
signed sales receipt is missing.
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investigators conducted an investigation and presented the evidence to a grand jury,
which indicted the plaintiff for theft. The criminal case remains pending in the
Limestone County Circuit Court.
During his employment, plaintiff complained to his supervisor, Oakley, and
others that he suffered a racially hostile and discriminatory work environment. He
complained to management about racially derogatory statements made by coemployees, denial of promotions, denial of transfers, and racially discriminatory pay,
and he asserts that these complaints resulted in retaliatory termination of his
employment with Wesfam.
A “void” occurs when a sales transaction reflected on a cash register is voided
either to cancel the transaction with the customer or to refund money to the customer.
A void indicates that no money was actually received from a customer as part of a
transaction recorded on the cash register tape. The manager of the restaurant is
responsible for making sure that voids are properly documented to ensure that they
are real voids and not simply attempts to cover up theft by claiming the transactions
were canceled or the money refunded to customers.
A “missing void” is a void for which there is no legitimate supporting
documentation. The concern with missing voids arises from the inability of Wesfam
to know whether a real void occurred (i.e., the transaction was canceled when the
customer did not pay or the customer was refunded the money after a transaction) or
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whether an employee has stolen the money and attempted to cover up the theft by
claiming a transaction was a void. While Wesfam expects a certain number of
undocumented voids, an excessive number of missing voids signals, at the least, cash
management problems the restaurant, or worse, theft.
After termination of his employment with Wesfam, plaintiff sought
unemployment benefits. On or about January 4, 2009, the Alabama Department of
Industrial Relations (hereafter “ADIR”) denied plaintiff unemployment benefits on
the ground that he was ineligible because he had been terminated from his
employment for “misconduct” due to improper cash handling procedures. Plaintiff
appealed, and on or about April 21, 2009, received notice of a telephonic appeal
hearing to be conducted on April 29, 2009. There is no evidence on file that
defendant Wesfam received notice of this hearing and Olivia Chilton, a corporate
representative of Wesfam, has testified that Wesfam did not receive such notice and
therefore did not attend the telephonic hearing.
After the telephonic hearing, the ADIR hearing officer determined that plaintiff
was not properly discharged for misconduct because he had no control over the
missing voids.

Plaintiff was determined to be eligible for unemployment

compensation, which he began receiving. When defendant Wesfam, apparently after
the fact, learned of the appeal hearing and decision, it sought to appeal the

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determination to the full appeal board, but this application was denied. Wesfam did
not seek a review in circuit court.
In the instant case, plaintiff filed his Motion for Partial Summary Judgment
arguing that the finding of the appeal hearing officer that he was terminated from his
employment with Wesfam due to missing voids that were beyond his control estops
defendants from arguing that plaintiff was terminated for cause. For the foregoing
reasons, the court is unpersuaded by plaintiff’s argument and his motion is due to be
denied.

III. Analysis
Plaintiff contends that collateral estoppel, also known as issue preclusion,
forecloses defendants from arguing that plaintiff was terminated for legitimate cause,
because there has been an administrative finding that plaintiff was terminated for
missing voids that were beyond his control. (Doc. 54). However, plaintiff is
incorrect for several fundamental reasons and, given this, his Motion for Partial
Summary Judgment is due to be denied.
Collateral estoppel is a principle for determining the conclusiveness of prior
judgments and prevents relitigation of issues already decided in a prior judgment. See
Conley v. Beaver, 437 So. 2d 1267, 1269 (Ala. 1983). Federal courts must apply the
collateral estoppel rules of the forum state, including in Title VII cases. Carlisle v.
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Phenix City Board of Education, 849 F.2d 1376, 1378 (11th Cir. 1988); Mitchell v.
Humana Hospital-Shoals, 942 F.2d 1581, 1583 (11th Cir. 1991). This court must
therefore apply the collateral estoppel law of Alabama.
The elements of collateral estoppel, as set forth by the Supreme Court of
Alabama, are (1) the issue to be estopped must be identical to the one involved in the
prior suit, (2) that issue must have been actually litigated in the prior suit, and (3) the
resolution of that issue must have been necessary to the judgment in the prior suit.
Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala. 1982);
see also Conley, 437 So. 2d at 1269. In order for collateral estoppel to give
preclusive effect to an issue decided in an administrative proceeding, as is the case
here, (1) there must be identity of the parties or their privies, (2) there must be
identity of the issue to be estopped, (3) the parties must have been afforded an
adequate opportunity to litigate the issue to be estopped in the administrative
proceeding, (4) the issue to be estopped must have been actually litigated and
determined in the administrative proceeding, and (5) the findings on the issue to be
estopped must have been necessary to the administrative decision. Ex parte Shelby
Medical Center, Inc., 564 So. 2d 63, 68 (Ala. 1990); see also Ex parte Smith, 683 So.
2d 431, 433 (Ala. 1996). The court finds that plaintiff’s motion is due to be denied
primarily because there is no identity of the issue to be estopped.

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Collateral estoppel in the present matter depends on whether the issue of racial
discrimination was actually litigated and decided in the administrative proceedings;
if not, identity of the issue is lacking and collateral estoppel cannot apply. Carlisle,
849 F.2d at 1379. The court notes that, while the Carlisle decision is Eleventh
Circuit precedent, it was approved of and adopted by the Supreme Court of Alabama
as a correct statement of Alabama collateral estoppel law in Carlisle v. Phenix City
Board of Education, 543 So. 2d 194, 195 (Ala. 1989). Therefore, the principles of
the federal Carlisle decision are applicable.
Consistent with this principle, other Alabama federal courts have found a lack
of issue identity in similar matters. See Dickinson v. Springhill Hospital, Inc., 397
F. Supp. 2d 1337, 1345-46 (S.D. Ala. 2005) (holding that, while an administrative
hearing officer ruled upon plaintiff’s eligibility for unemployment compensation, the
issue before the court in a Title VII action is whether defendant acted with an
intentional discriminatory purpose). The issue before the ADIR hearing officer was
whether Grant was eligible for unemployment benefits, but the issue in the present
case is whether defendants acted with intentional discriminatory animus under Title
VII and Section 1981. See id. Because the issue at hand differs from the central issue
in the administrative proceedings, collateral estoppel does not bar defendants from
arguing that plaintiff was terminated for cause.

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The crux of the issue at hand is intent. The issue in the administrative
proceedings was whether plaintiff was eligible for unemployment benefits and not
whether Wesfam terminated him because of discriminatory animus under Title VII
and Section 1981. Plaintiff’s discrimination claims require a finding of intent on the
part of defendants, but the issue of intent was not present in the administrative
proceedings, or, if it was, it is not apparent from the administrative record as noted
below. The ADIR officer’s finding that plaintiff was terminated for missing voids
that were beyond his control does not implicate discriminatory animus on the part of
defendants in any way nor does it foreclose the possibility that defendant Wesfam
terminated plaintiff mistakenly but honestly. Thus, defendants are not foreclosed
from arguing that plaintiff was terminated for cause. There is simply no identity of
the issue to be estopped here necessary for collateral estoppel to apply.
The court also finds that the parties were not afforded an adequate opportunity
to litigate the issue in the administrative proceedings. It appears from the record that
defendant Wesfam was not given notice of the telephonic appeal hearing and thus did
not attend. (Doc. 64-1, pp. 144-45, 147, 151). Plaintiff has presented no evidence
that defendant Wesfam received notice of the hearing, only evidence that he himself
received such notice. (Doc. 65-2, p. 43). Because defendant Wesfam did not receive
notice of the hearing, defendant did not have an adequate opportunity to litigate the
issue in the administrative proceeding. Had Wesfam been afforded such an adequate
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opportunity, the finding of the ADIR officer may have differed. However, this is
essentially a moot point given that the issue in the administrative hearing is not the
issue in the present matter.
Furthermore, it is not entirely clear precisely what issues were actually decided
in the administrative proceedings. If it is not clear from the administrative record
what issues were actually litigated and decided, collateral estoppel cannot operate.
Mitchell, 942 F.2d at 1584; Fisher v. Space of Pensacola, Inc., 461 So. 2d 790, 793
(Ala. 1984). No evidence has been presented that the administrative hearing officer
ever considered whether race discrimination was a reason for the termination of
plaintiff’s employment. No transcript of the telephonic hearing has been submitted.
Thus, even if discriminatory animus was at issue in the administrative proceedings,
that is not at all clear from the record, rendering collateral estoppel inappropriate.
The only issue that was clearly decided in the administrative proceedings was
whether or not plaintiff was eligible for unemployment benefits and, as noted, that is
not the central issue in this Title VII and Section 1981 cause of action.
IV. Conclusion
Primarily because the issue decided upon in the administrative proceedings
differs from the issue to be estopped in the present matter, the court finds that
collateral estoppel does not operate to prevent defendants from arguing that plaintiff

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was terminated for cause.

Therefore, plaintiff’s Motion for Partial Summary

Judgment (Doc. 54) is due to be and is hereby DENIED.
DONE and ORDERED this 31st day of January, 2013.

T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

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