Moore v. Burger King et al
Filing
26
REPORT AND RECOMMENDATIONS - This Court concludes that there are no genuine issues of material fact and that Defendants Burger King and Matthey Dougherty are entitled to judgment as a matter of law. It is therefore recommended that Defendants' Motion for Summary Judgment, (Doc. 22 ), be granted. It is also recommended that judgment be entered in favor of Defendants and against Plaintiff and that the Complaint (Doc. 2 ) herein be dismissed with prejudice. Objections to R&R due by 7/23/2012. Signed by Magistrate Judge Michael R Merz on 7/5/12. (kje1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICKY L. MOORE,
:
Case No. 3:11-cv-151
Plaintiff,
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
-vsBURGER KING, et al.,
Defendants.
:
REPORT AND RECOMMENDATIONS
This case is before the Court on Defendants’ Motion for Summary Judgment. (Doc. 22).
The parties have fully briefed the issues, (Id., Doc. 24, 25), and the Motion is ripe for decision.
Because a summary judgment motion is classified as dispositive under the Magistrate’s Act, the
Magistrate Judge offers the following proposed findings of fact and recommendation for
disposition for final determination by District Judge Rice.
Plaintiff Ricky L. Moore brought this action pro se and is therefore entitled to have his
pleadings liberally construed. Williams v. CSX Transportation Co., Inc. 643 F.3d 502, 510 (6th
Cir, 2011), citing Federal Exp. Corp. v, Holowecki, 552 U.S. 389, 402 (2008); see also, Haines
v. Kerner, 404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v.
United States, 508 U.S. 106, 113 (1993).
Mr. Moore brought this action against his former employer Burger King and his former
supervisor Matthew Daugherty alleging that they retaliated against him in violation of Title VII
1
2
of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Title VII) and the Age Discrimination
in Employment Act, 29 U.S.C. § 623, et seq. (ADEA). (Doc. 2)1. Specifically, Mr. Moore
alleges that in October, 2009, he filed a claim of race and age discrimination with the Ohio Civil
Rights Commission (OCRC) which the OCRC dismissed and which dismissal the Equal
Employment Opportunity Commission (EEOC) affirmed. Mr. Moore claims that Mr. Daugherty
became his supervisor in January, 2010; that in March, 2010, Mr. Daugherty demoted him and
reduced his pay; and that Mr. Daugherty took those actions in retaliation for his (Mr. Moore’s)
previous protected activity of filing charges with the OCRC.
Defendants have moved for summary judgment on several grounds. (Doc. 22). First,
Defendants argue that Mr. Moore’s retaliation claim is without merit because Mr. Moore’s own
deposition testimony establishes that he has no evidence to support his retaliation claims.
Defendants argue next that they have articulated legitimate, nondiscriminatory business reasons
for their actions and Mr. Moore is unable to prove that those reasons were a pretext for
discrimination. Defendants also argue that to the extent that Mr. Moore has alleged race and age
discrimination, those claims are untimely and that, in the alternative, Mr. Moore is not able to
establish a prima facie case of either race or age discrimination.
In opposition to Defendants’ Motion, Mr. Moore has alleged that Defendants have
engaged in unfair labor practices since September, 2008. (Doc. 24). Mr. Moore also argues that
he, a forty-eight year-old Black male, was denied the opportunity to participate in a training
program at a training store whereas a younger white male participated in the program, that
Defendants submitted a forged document to the OCRC investigator, that following his filing a
claim of discrimination with the OCRC., Mr. Daugherty demoted him and reduced his pay, and
1 Mr. Moore does not state that his claims are brought under Title VII. Because he could not sue Mr. Dougherty
individually under Title VII, the Court construes his claims against Mr. Dougherty as brought under Ohio Revised
Code § 4112.02 which does allow for individual liability.
3
that Defendants’ witnesses did not work with him for any length of time. Mr. Moore has not
produced any evidence admissible under Fed. R. Civ. P. 56(c)(1) or (4) to support his opposition
to Defendants’ Motion.
In Reply, the Defendants essentially argue that Mr. Moore has failed to come forward
with any admissible evidence that supports his claim for retaliation or that establishes a causal
connection between his protected activity and any adverse employment action Defendants took
against him that would establish pretext. (Doc. 25). Defendants also argue that Mr. Moore’s
arguments in opposition are not based on record facts.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine dispute2
as to any material fact and the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing
that there exists no genuine [dispute] of material fact, and the evidence, together with all
inferences that can reasonably be drawn therefrom, must be read in the light most favorable to
the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970).
Nevertheless, the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine [dispute] of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as
a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole,
which are designed to "secure the just, speedy and inexpensive determination of every action."
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
2
The word Adispute@ was substituted for Aissue@ in Fed. R. Civ. P. 56 as of December 1, 2010. The
amendment, according to its drafters, did not change the summary judgment standard.
4
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move
for summary judgment asserting that the opposing party will not be able to produce sufficient
evidence at trial to withstand a Rule 50 motion for judgment as a matter of law. See, Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery,
the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby
criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply
show that there is some metaphysical doubt as to the material facts." Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party
[A]lways 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 [dispute] of material
fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)
(citation omitted). In ruling on a motion for summary judgment (in other words, determining
whether there is a genuine [dispute] of material fact), "[a] district court is not ... obligated to
wade through and search the entire record for some specific facts that might support the
nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989),
cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine dispute of material
fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified
pleadings, depositions, answers to interrogatories, and admissions on file, together with any
affidavits submitted, specifically called to its attention by the parties.
With these principles in mind, the facts of this case, for purposes of the present Motion,
are as follows.
5
Vicki Francis is a District Manager for the Burger King Corporation. Declaration of
Vicki Francis, May 8, 2012 (“Francis Dec.”), Doc. 22 Attachment 1 thereto, PageID 230. Burger
King is in the “fast food” or “quick service” restaurant business and has an operational structure
for each of its restaurants and districts. Id. A district manager oversees a number of Burger King
restaurants. Id. A general manager is responsible for the overall operations of one restaurant and
reports to a district manager. Id. An assistant general manager reports to the general manager
and is responsible for the operations of a store in the general manager’s absence. Id.
There are usually two shift coordinators in each restaurant who report to the general
manager. Id. at PageID 230-31. Shift coordinators are non-exempt hourly employees who assist
management personnel with general operations during the coordinator’s assigned shift. Id. at
PageID 231.
District managers, general managers, assistant general managers, and shift
coordinators must be “Serve Safe Certified” which requires that they be efficient at operating
each station within the restaurant and capable of managing the minute-to-minute operations of
the restaurant. Id. Each Burger King restaurant has a staff of team members who are responsible
for the minute-to-minute duties such as preparing sandwiches, stocking storage areas, operating
cash registers, and ensuring customer satisfaction. Id.
Burger King requires that all prospective shift coordinators be trained at a Burger King
training restaurant and become “Serve Safe Certified” before assuming shift coordinator duties.
Id. The training lasts about seven weeks, takes place at a training store, and requires the trainee
to become efficient at each work station in the restaurant. Id. The training includes performing
the following job responsibilities: (1) opening and closing the restaurant; (2) managing and
operating the restaurant during assigned shifts; (3) providing production direction to team
members; (4) delegating duties to team members; (5) directing, training, and motivating team
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members during shifts; and (6) completing checklists and procedures for cash reporting,
inventory control, and scheduling during a shift. Id.
Burger King generally trains a team member on-the-job in the restaurant at which he or
she will regularly work. Id. Team member duties include: (1) greeting customers; (2) receiving
orders; (3) processing payments; (4) operating cash registers; (5) preparing and packaging food
and drink products; (6) cleaning the kitchen and dining room areas; (7) unloading and stocking
inventory; and (8) working multiple workstations (e.g., front counter, drive-thru, prep boards,
expediter, etc.). Id.
Mr. Moore met Donnie Smith, a district manager, at a jobs fair in May, 2008, where they
discussed the possibility of Mr. Moore becoming a Burger King employee. Ricky Moore
Deposition, Feb. 7, 2012, Doc. 21 at 100-03, PageID 113-14 (filed May 18, 2012)(“Moore
Depo.”). Subsequently, Mr. Moore met with Mr. Smith at Burger King’s Brown Street restaurant
and they discussed Mr. Moore’s potential employment by Burger King as a shift coordinator. Id.
Mr. Moore began working for Burger King on May 14, 2008. Id. Mr. Moore signed his
employment paperwork with help from Carol Davis who was, at the time, the general manager of
the Brown Street Burger King restaurant. Moore Depo., Exs. D, E, F, H, and L thereto. Burger
King sent Mr. Moore to train under Vicki Francis who was a training manager for Burger King at
the time and who managed a Burger King training restaurant located on Brandt Pike. Moore
Depo. At 104-07, PageID 114-15; Francis Dec. PageID 232.
Ms. Francis tried to help Mr. Moore with the training to become a shift coordinator. Id.;
Moore Depo. at 107, PageID 115. However, after a few weeks of training at the Brandt Pike
restaurant, Ms. Francis concluded that Mr. Moore was not capable of performing the shift
coordinator duties. Francis Dec., PageID 232. Ms. Francis observed that Mr. Moore would
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show up at varying times for work—sometimes very early and sometimes late—that he was
generally slow and appeared to struggle to understand what was required of him, and that he
demonstrated poor leadership skills. Id. Burger King removed Mr. Moore from being trained by
Ms. Francis at the Brandt Pike restaurant and sent him to the Brown Street restaurant. Id.
At the Brown Street restaurant, Mr. Moore reported directly to Carol Davis who was the
general manager of that restaurant. Declaration of Carol Lemons-Davis, May 8, 2012 (“Davis
Dec.”), Doc. 22 Attachment 2 thereto, PageID 234-35; Moore Depo. at 110-12, 115, PageID 116,
117. Dwayne Smith, an African-American male, who was the same age as Mr. Moore, was the
assistant manager at the Brown Street restaurant.
Moore Depo., supra. In addition, Joel
McNealy, a Caucasian male and Athena [last name unkown], an African-American female, were
the shift coordinators at the Brown Street restaurant. Moore Depo. at 110-12, PageID 116; Davis
Dec., PageID 235.
When Mr. Moore returned to the Brown Street restaurant, he worked as a team member
because he had failed to complete shift coordinator training at the Brandt Pike restaurant. Moore
Depo. at 137-39, 145-49, PageID 122-23, 124-25; Davis Dec., PageID 235. Although Mr.
Moore was performing team member duties, Burger King continued to classify him as a
manager-in-training and paid him $10.00 per hour, the standard rate for shift coordinators and
which was higher than the wage for team members. Moore Depo. at 137-39, 145-49, 162-65,
PageID 122-23, 124-24, 129; Davis Dec., PageID 235.
Ms. Davis monitored Mr. Moore’s performance as a team member in order to assess his
potential for becoming a shift coordinator. Davis Dec., PageID 235. Ms. Davis observed Mr.
Moore perform his duties inaccurately, inefficiently, and below basic standards.
Id.
For
8
example, she observed that Mr. Moore was unable to prepare hamburgers in a timely fashion.
Id.; Francis Dec., PageID 232.
Mr. Moore failed to show up for work on Saturday, June 14, 2008, and failed to contact
anyone at Burger King concerning his absence until shortly before the end of his scheduled shift.
Moore Depo. at 116-121, PageID 117; Id., Ex. B thereto, PageID 179. Mr. Smith, the assistant
manager at the Brown Street restaurant, gave Mr. Moore a Written Counseling for the incident.
Id.
In September, 2008, Mr. Smith, the area manager for Burger King who had hired Mr.
Moore, removed Mr. Moore from the management-in-training program due to his failure to
properly perform some basic tasks like making sandwiches in a timely fashion. Davis Dec.,
PageID 236. About this same time, Ms. Davis told Mr. Moore that he was not “Burger King
material” and that Burger King would not permit him to continue to train as a manager. Moore
Dep., Ex. E thereto, PageID 182. Mr. Moore never performed shift coordinator duties. Davis
Dec., PageID 236; Francis Dec., PageID 232; Moore Depo. at 114, 137-39, 145-49, PageID 117,
122-23, 124-25. During Mr. Moore’s employment with Burger King, he performed only team
member duties. Id. at 137-39, 145-49, PageID 122-23, 125.
On November 8, 2008, Burger King, gave Mr. Moore another written warning. Id. at
132-35, PageID 121-22; Id., Ex. C thereto, PageID 180. In that warning, Ms. Davis indicated
that on November 7, 2008, Mr. Moore had failed to work the station to which he was assigned
and that it was his responsibility to meet Burger King’s standard of making a sandwich in thirty
seconds or less and to have speed of service within the standard of two minutes and fifteen
seconds. Id. The warning also indicated that Mr. Moore had been verbally warned in September
about his performance as a manager-in-training at which time Burger King removed him from
9
the training program. Id. Mr. Moore continued to perform team member duties and receive the
higher shift coordinator pay rate. Moore Depo. at 137-39, 145-49, 162-65, PageID 122-23, 12425, 129; Davis Dec., PageID 236.
On December 24, 2008, Mr. Moore filed a Charge of Discrimination with the OCRC and
the EEOC alleging that Burger King discriminated against him on the bases of race and age.
Moore Depo., Ex. E thereto, PageID 182. Specifically, Mr. Moore alleged that Burger King
discriminated against him when, after he attended one week of manager training, it denied him
further training and a promotion to the position of shift coordinator. Id. On September 30, 2009,
the OCRC advised Mr. Moore that it had determined there was no probable cause to believe that
Burger King had engaged in an unlawful discriminatory practice. Id., Ex. F thereto, PageID 18384.
On December 22, 2009, the EEOC advised Mr. Moore that it had adopted the OCRC’s
findings and was closing its file on his charge against Burger King and it (EEOC) issued a Right
to Sue Notice. Moore Depo., at 188-89, PageID 135; Id., Ex. G thereto, PageID 185. Mr. Moore
received the EEOC’s notice and Right to Sue Notice in late December, 2009, or early January,
2010. Moore Depo. at 189, PageID 135.
John Falk, Jr., was a human resources manager for Burger King during the period of
about January, 2009, through December, 2011, Declaration of John Falk, Jr., May 9, 2012
(“Falk Dec.”), Doc. 22, Attachment 3 thereto, PageID 237. On or about January 1, 2010,
Matthew Dougherty became the general manager of the Brown Street restaurant. Id.; Declaration
of Matthew Dougherty, May 11, 2012 (“Dougherty Dec.”), Doc. 22, Attachment 4 thereto,
PageID 240. When Mr. Dougherty started working at the Brown Street restaurant, Mr. Moore
was performing team member duties. Id. Shortly after he began working at the Brown Street
restaurant, Mr. Daugherty observed that Mr. Moore made sandwiches too slowly, moved slowly,
10
and did not appropriately perform his job duties. Id. Mr. Dougherty consulted with Mr. Smith,
the district manager and Mr. Falk about Mr. Moore’s continued employment and in February,
2010, Mr. Dougherty gave Mr. Moore a below-average performance review. Falk Dec., PageID
237-38; Dougherty Dec., PageID 241; Moore Depo. at 192-99, PageID 136-38, Id., Ex. I
attached thereto, PageID 198-99.
Sometime after he assumed his duties at the Brown Street restaurant, Mr. Dougherty
reviewed employees’ records and noted that Mr. Moore was receiving a wage of approximately
$10.00 per hour while team members were receiving between $7.00 and $8.00 per hour.
Dougherty Dec., PageID 241. Mr. Dougherty advised Mr. Smith and Mr. Falk what he had
determined about Mr. Moore’s rate of pay. Id.; Falk Dec., PageID 237-38. On or about March
11, 2011, after consulting with Messrs. Smith and Falk, Mr. Dougherty officially changed Mr.
Moore’s title from shift coordinator to team member and reduced Mr. Moore’s rate of pay to that
of a team member. Dougherty Dec., PageID 241; Falk Dec., PageID 238-39.
On March 12, 2010, Mr. Moore filed a Charge of Discrimination with the OCRC alleging
that Burger King retaliated against him when it demoted him from the position of shift
supervisor to the position of crew member. Moore Depo., Ex. J thereto, PageID 200. On May
15, 2010, Mr. Moore voluntarily terminated his employment with Burger King. Moore Depo. at
171-72, PageID 131; Falk Dec., PageID 239; Dougherty Dec., PageID 242.
On or about
February 24, 2011, the OCRC advised Mr. Moore that it had, initially and on reconsideration,
determined that there was no probable cause to believe that Burger King had engaged in
discriminatory practices. PageID 197. On April 6, 2011, the EEOC advised Mr. Moore that it had
adopted the OCRC’s findings, was closing its file on his Charge, and issued him a Right to Sue
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Letter. Moore Depo., Ex. H attached thereto, PageID 196. Mr. Moore filed this action on May
9, 2011. (Doc. 2).
The Court notes that Mr. Moore’s Complaint in this Court alleges only that Burger King
retaliated against him when it demoted him from the position of shift coordinator to team
member and reduced his salary from the shift coordinator level to the team member level. Id.
Title VII prohibits discrimination in employment on the basis of “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It also prohibits retaliation against an
employee “because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
Similarly, the ADEA prohibits discrimination in employment because of an individual’s age as
well as retaliation against an individual “because he has opposed any practice made unlawful by
this section or because such individual … has made a charge … under this chapter.” 29 U.S.C.
§§ 623(a)(1), (d).
In order to establish a prima facie case of retaliation, Mr. Moore must present evidence
that: (1) he engaged in activity protected by title VII and/or the ADEA; (2) Burger King and Mr.
Daugherty knew that he had engaged in the protected activity; (3) he suffered an adverse
employment action; and (4) there is a causal connection between his protected activity and the
adverse employment action. Strouss v. Michigan Dept. of Corrections, 250 F.3d 336, 342 (6th
Cir. 2001), abrogated on different grounds by Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) as
recognized in Wrobbel v. Int’l Brotherhood Elec. Workers, 638 F.Supp.2d 780, 790 (E.D. Mich.
2009)(citations omitted)(Title VII retaliation claim); Spengler v. Worthington Cylinders, 615
F.3d 481, 491 (6th Cir. 2010)(ADEA retaliation claim).
12
For purposes of the present Motion only, Burger King and Mr. Dougherty essentially
agree that Mr. Moore has established the first three elements of a prima facie case; that is,
Defendants concede: (1) Mr. Moore engaged in protected activity; (2) they knew that he had
engaged in that activity; and (3) Mr. Moore suffered an adverse employment action. What
Burger King and Mr. Daugherty do argue, however, is that Mr. Moore is not able to establish the
fourth element, a causal connection between his protected activity and the adverse employment
action.
The Sixth Circuit has repeatedly cautioned against inferring causation based on temporal
proximity alone. Wasek v. Arrow Energy Services, Inc., ___ F.3d ___, ___, 2012 WL 2330824
(6th Cir. June 20, 2012), citing Spengler v. Worthington Cyclinders, 615 F.3d 481, 494 (6th Cir.
2010)(“[T]emporal proximity, standing alone, is not enough to establish a causal connection for
a retaliation claim.”)(citing Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir.
2007)); but see Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525-26 (6th Cir.
2008)(reasoning that temporal proximity may be enough when it so closely follows the protected
activity that there would be no other evidence to couple with the temporal proximity).
Therefore, if Mr. Moore is to survive summary judgment on his retaliation claim, he must
present causation evidence other than temporal proximity. Mr. Moore has failed to do so.
As noted by Burger King and Mr. Dougherty, Mr. Moore testified at his deposition that
he does not have any evidence that Mr. Dougherty’s decisions to demote him to crew member
and to reduce his pay had anything to do with his protected activity:
Q. What is your reason for believing that any actions they
[Defendants] took were in retaliation for something? What is the
something that you think they were retaliating for? What did you
do that caused them to retaliate against you?
13
A. Taking them through this in the first place as far as the whole
legal procedure with the EEOC, the NAACP, the Ohio
Commission, that was my whole reason for believing for the
retaliation.
Q. But Matthew [Dougherty] didn’t start working for Burger King
at that location until January of 2010, correct?
A. Managers go and come, managers have knowledge of their, the
individuals that are working in there for them.
Q. Okay. What evidence do you have that any actions Matthew
[Dougherty] ever took in retaliation to your employment, what
evidence do you have that any of those actions had anything to do
with anything that he heard from other managers?
A. I never was at a manager meeting so I don’t have any evidence.
Q. So, and you don’t have any documents that suggest that
Matthew [Dougherty’s] decisions concerning your employment—
A. Based on –
Q. – related to anything other than your performance?
A. Based on being with me and coming into a new store and not
even having been there a whole month, and you have other
employees to work with and you can come up with this, with an
evaluation like this. And then on top of the evaluation like this,
forging it [referencing February, 2010, evaluation; Moore Depo.
Ex. I attached thereto, PageID 198-99].
Q. Are you alleging that Matthew [Daugherty] forged the
document?
A. No, I’m not alleging that Matthew forged it. The documents are
forged but I’m not alleging who did it.
Q. What evidence do you have that they were forged?
A. It is not my signature, it is not my writing or my signature.
Q. But you agree with the contents of the document, correct?
A. My Signature, my writing. It’s not about me agreeing with the
contents. If I didn’t write it, I didn’t write it.
14
Q. Okay. But you do agree with the content, correct?
A. Yes.
Q. And you don’t have any evidence that Matthew [Dougherty’s]
decision to lower your pay had anything to do with your prior
complaints against Burger King, do you?
A. No.
Moore Depo. at 202-205, PageID 139.
Mr. Moore admitted at his deposition that he agreed with the contents of the belowaverage evaluation which Mr. Daugherty gave to him in February, 2010. More importantly,
however, Mr. Moore admitted that he has absolutely no evidence that the Defendants’ actions
had anything to do with his protected activity. Further, Mr. Moore has not come forward with
any causation evidence in opposition to Defendants’ present Motion. Mr. Moore’s admissions at
his deposition that he has no evidence that Defendants’ actions had anything to do with his
protected activity and his failure to come forward with causation evidence are fatal to his claim
that Defendants retaliated against him in violation of Title VII and/or the ADEA.
Keeping in mind its duty to liberally construe a pro se litigant’s pleadings, this Court will
assume arguendo that, in addition to his retaliation claim, Mr. Moore has also alleged that
Defendants discriminated against him on the basis of his race and age when, after he attended
one week of manager training, it denied him further training and a promotion to the position of
shift coordinator.
As noted above, Mr. Moore filed a complaint with the OCRC on December 24, 2008,
alleging Burger King discriminated against him on the basis of race and age when it denied him
further manager training as well as a promotion to shift coordinator. Moore Depo., Ex. E
thereto, PageID 182. As also noted, on December 22, 2009, the EEOC advised Mr. Moore that it
15
was closing the matter and it issued a right to sue notice. Id., Ex. G thereto, PageID 185. Mr.
Moore received that notice in late December, 2009, or early January, 2010. Moore Depo. at 189,
PageID 135.
A discrimination litigant is required to file a civil action within ninety days of receiving a
right to sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); Seay v.
Tennessee Valey Auth., 339 F.3d 454, 469 (6th Cir. 2003). However, because this requirement is
not jurisdictional, a court may apply equitable tolling, which permits a plaintiff to avoid the bar
of the statute of limitations if despite all due diligence he is unable to obtain vital information
bearing on the existence of his claim. Id. (internal quotations and citations omitted).
Mr. Moore has admitted that he received the right to sue notice from the EEOC in either
late December, 2009, or early January, 2010. Therefore, this is not a case where application of
equitable tolling is appropriate. Giving Mr. Moore the benefit of the doubt, the Court will assume
he received the notice from the EEOC on the last day of January, 2010. Mr. Moore did not file
the present action until May 9, 2011, long after the ninety-day period had passed. Mr. Moore’s
pro se status does not excuse noncompliance with this procedural rule that he file his action
within ninety days of receiving the right to sue notice. See In re: G.A.D., Inc., 340 F.3d 331, 335
(6th Cir. 2003).
Accordingly, to the extent that Mr. Moore has alleged that Defendants discriminated
against him on the basis of race and age when he was denied continued manager training and
denied the opportunity to work as a shift manager, because Mr. Moore failed to timely file his
Complaint, the Court must dismiss it. See Graham-Humphreys v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 557-58 (6th Cir. 2000)(citations omitted).
16
This Court concludes that there are no genuine issues of material fact and that Defendants
Burger King and Matthey Dougherty are entitled to judgment as a matter of law.
It is therefore recommended that Defendants’ Motion for Summary Judgment, (Doc. 22),
be granted. It is also recommended that judgment be entered in favor of Defendants and against
Plaintiff and that the Complaint herein be dismissed with prejudice.
July 5, 2012.
Michael R. Merz
s/
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
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