Smith v. Cracker Barrel Old Country Store, Inc.
OPINION AND ORDER GRANTING IN PART and DENYING IN PART 55 MOTION for Summary Judgment by Defendant Cracker Barrel Old Country Store, Inc. Parties ORDERED to file a Joint Status Report by 10/5/2017 regarding their willingness to engage in a settlement conference before a Magistrate Judge. A trial date will be set under separate Order. Signed by Senior Judge James T Moody on 9/22/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
TILLIE A. SMITH,
CRACKER BARREL OLD COUNTRY )
No. 2:14 CV 123
OPINION and ORDER
This matter is before the court on the motion of defendant Cracker Barrel Old
Country Store, Inc. (“Cracker Barrel”) for summary judgment on all claims raised by
plaintiff Tillie A. Smith. (DE # 55.) For the reasons set forth below, the motion is
granted, in part, and denied, in part.
Plaintiff, a white female, began working as server at Cracker Barrel’s Merrillville
location in 2011. (DE # 56-4, Pl. Dep. 35.) By July of 2012, plaintiff had at least one
disciplinary infraction on her employment record for speaking disrespectfully to a
supervisor, which was labeled as a “Final Written” counseling report. (DE # 56-2 at 6.)
On July 7, 2012, a confrontation ensued between plaintiff and another server, an
African-American male named Jared Baity. According to plaintiff, Baity blew on her
neck and into her ear, and she responded by moving her hand in that direction, making
contact with Baity’s face. (DE # 56-4 at 38.) In a written statement following the incident,
she described her action as a “slap” (id.), though she later testified that she moved her
hand to her ear because she thought that the ceiling was blowing down. (DE # 56-4, Pl.
Dep. 71.) According to plaintiff, later that shift, Baity commented that her breasts were
large and made sucking noises. (DE # 56-4 at 38.) A few minutes later, Baity came up
behind plaintiff, said “‘excuse me’ as he put his hand on my right hip then slid his hand
on to my butt to the point of sliding my body to the left.” (Id.) Plaintiff asserted that
Baity had touched her “privates.” (Id. at 40.) At her deposition, she stated that Baity’s
hand was “right up to my vagina.” (DE # 56-4, Pl. Dep. 74.)
Plaintiff attested that she “might have said a cuss word” in response to Baity’s
conduct. (DE # 56-4, Pl. Dep. 82.) She further stated that she told Baity: “I bet if I was
Paul [plaintiff’s boyfriend] you wouldn’t be touching me like that, and how would you
like it if Paul came up here and touched you like that.” (Id., Pl. Dep. 87.) According to
Baity, plaintiff said “fu** [sic] you Jared” and called him a “faggit [sic],” loud enough
for guests to hear. (DE # 56-2 at 16.) Baity further claimed that plaintiff said that “Paul
going to come up here and whoop my ass.” (Id. at 17.)
Plaintiff claims that she immediately reported the incident to Associate Manager
Ken Janda. (DE # 56-4, Pl. Dep. 90-91.) She also claims that she reported Baity’s actions
to General Manager Hans Oskam, who told her that Baity “is just friendly,” but that he
planned to “open an investigation.” (Id., Pl. Dep. 105-06.) Ultimately, Oksam concluded
that plaintiff had slapped Baity and that both employees contributed to the
confrontation, but he could not determine whether any inappropriate touching had
occurred. (DE # 56-2 at 3-4.) Ultimately, both plaintiff and Baity were fired. (Id. at 4.)
Plaintiff’s’ termination sheet provided the following rationale for her firing: “You
behaved inappropriately regarding the situation [with Baity]. Your [sic] are already on
a final written warning for hospitality 1st, and you admitted to hitting another
employee. You threatened him, and also used profanity on the wait aisle.” (DE # 56-2 at
Plaintiff sued under Title VII of the Civil Rights Act of 1964 for sexual
harassment, sex discrimination, race discrimination, and retaliatory discharge, plus the
state law torts of wrongful termination in violation of public policy and negligent
supervision. (DE # 1.) Cracker Barrel has moved for summary judgment on all claims.
(DE # 55.) Plaintiff concedes that summary judgment is appropriate on her wrongful
termination claim, but insists that genuine issues of material fact exist as to the
remainder of her claims.
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after
adequate time for discovery, 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[S]ummary judgment is appropriate–in fact, is mandated–where there are no
disputed issues of material fact and the movant must prevail as a matter of law. In other
words, the record must reveal that no reasonable jury could find for the non-moving
party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotation marks omitted).
The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’–that is,
pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
The court begins with plaintiff’s race discrimination claim, which plaintiff
addressed with only a few sentences in her response brief. Under the familiar burdenshifting framework initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), it is first plaintiff’s burden to establish a prima facie case of intentional racial
discrimination. To do this, a plaintiff must provide evidence that: (1) she is a member of
a protected class; (2) she was meeting his employer’s legitimate performance
expectations; (3) she suffered an adverse employment action; and (4) other
similarly-situated employees outside of the protected class were treated more
favorably. Huang v. Cont’l Cas. Co., 754 F.3d 447, 450 (7th Cir. 2014). However, plaintiff
has not set forth sufficient evidence to establish the fourth element. Both plaintiff and
Baity were terminated, and though plaintiff has pointed to one race-related remark by a
Cracker Barrel employee (specifically, that Cracker Barrel was afraid to fire Baity
because Baity would “throw the race card”), the statement is inadmissible hearsay and
the declarant was not a decision-maker so the statement has virtually no relevance.
Even assuming plaintiff could establish a prima facie case regarding race
discrimination, Cracker Barrel has articulated a legitimate, non-discriminatory reason
for firing plaintiff by pointing to her prior warning and her behavior in the midst of the
conflict with Baity (i.e., hitting, threatening, and using profanity), so the burden shifts
yet again to plaintiff, who must present evidence that this reason is pretext for unlawful
racial discrimination. Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014).
This, plaintiff has not done. Plaintiff claims that black employees were not disciplined
as harshly as white employees, but this assertion is not borne out by the evidence.
Accordingly, summary judgment is appropriate on plaintiff’s claim for racial
However, genuine issues of material fact exist with regard to plaintiff’s claims for
sexual harassment, sex discrimination, retaliation, and negligent supervision. These
claims must be evaluated by a fact-finder, and cannot be resolved at the summary
judgment stage. Fed. R. Civ. P. 56. Accordingly, Cracker Barrel’s motion for summary
judgment is denied as to these claims.
For the foregoing reasons, Cracker Barrel’s motion for summary judgment (DE
# 55) is GRANTED, in part, and DENIED, in part. The parties are ORDERED to file a
joint status report regarding their willingness to engage in a settlement conference
before a Magistrate Judge by October 5, 2017. A trial date will be set under separate
Date: September 22, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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