Reid v. Aubrey's Restaurant Inc. et al (TWP1)

Filing 58

MEMORANDUM OPINION AND ORDER re 37 MOTION to Dismiss or in the alternative Motion for Summary Judgment filed by Aubrey's Restaurant Inc. and 56 MOTION for Extension of Time to Complete Discovery filed by Aubrey's Restaurant Inc. the Court finds that based on the record as a whole, Plaintiff has failed to show as a matter of law that Defendant violated 42 U.S.C. 1983, Title VII, or the ADA. Therefore, Defendant's Motion for Summary Judg ment [Doc. 37] is GRANTED, and this case is DISMISSED WITH PREJUDICE. Defendant's motion to dismiss [Doc. 37] is DENIED as moot. Defendant's Motion for Extension of Time to Complete Discovery [Doc. 56] is DENIED as moot. Further, because Ex hibit 2 to Plaintiff's complaint [Doc. 1-2] contains Plaintiff's personal identifying information, the Clerk is DIRECTED to seal that Exhibit. A separate order dismissing this case shall enter. Signed by District Judge Clifton L Corker on 4/20/2020. (Copy of Memorandum mailed to Nigel M. Reid, II) (LCK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
GREENEVILLE DIVISION
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NIGEL M. REID II,
Plaintiff,
vs.
AUBREY'S RESTAURANT INC.,
Defendant.

2:18-CV-00090-DCLC

MEMORANDUM OPINION AND ORDER
Defendant has filed a Motion to Dismiss or in the Alternative a Motion for Summary
Judgment [Doc. 37] and supporting memorandum [Doc. 38]. Plaintiff responded in opposition1
[Doc. 40]. Defendant replied [Doc. 42]. This matter is now ripe for resolution.
I.

Factual and Procedural Background
Plaintiff is proceeding pro se. Plaintiff worked for Defendant Aubrey’s Restaurant as a

dishwasher beginning on or about December 1, 2017 [Doc. 1, pg. 9]. On January 3, 2018, he made
a complaint of sexual harassment to his district manager. He states that another employee “came
behind [him] and made contact on me and follow[ed him] for 30 sec[onds] to a minute long on
security footage.” [Doc. 1, pg. 5]. He alleges that Jason Ward, the employee, had “harassed the
other employees that night.” [Id. at 5]. He alleges that Ward was “drunk” at the time and was not
even working when Ward touched Plaintiff’s shoulders.

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In response to Defendant’s motion, Plaintiff filed a document [Doc. 40] titled “Response
in support to Motion for Leave to Amend (Doc 1) against (Doc 37) and (Doc 38).” The Court will
consider this as Plaintiff’s response.
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Ten days later, on January 13, 2018, Plaintiff left work early and went to the emergency
room for treatment. He sent a text to his supervisor at 5:00 p.m. that day advising him that he had
to leave work early to go to the ER because “I think I pulled a muscle?” The next day, on January
14, 2018, Plaintiff was scheduled to work, but was a no show, and he did not call in advance to
advise of his anticipated absence. When Plaintiff did show up for work on January 15, 2018,
Defendant terminated his employment for not showing up for work the day before and not calling
in.
On April 13, 2018, Plaintiff filed a claim with the Equal Employment Opportunity
Commission (“EEOC”), alleging that Defendant discharged him because he had complained of
sexual harassment regarding the incident with Ward [Doc. 1-8, pg. 7].2 On April 23, 2018, the
EEOC closed its file on this charge, stating that it was “unable to conclude that the information
obtained establishes violations of the statutes.” [Id. at pg. 6]. Specifically, the EEOC found that
Plaintiff did not establish a violation on a discharge issue nor did he establish a violation on the
basis of retaliation [Id. at pg. 7].
On June 7, 2018, Plaintiff sued Defendant Aubrey’s Restaurant and Jason Ward [Doc. 1].
He alleged Defendant violated 42 U.S.C. § 1983 for terminating his employment. He also alleged
Defendant violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq., by discriminating against him on the basis of his race and sex and illegally retaliated against
him for making a complaint about being sexually harassed. He also alleged Defendant violated
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The facts of the case are
not in dispute. In his complaint, Plaintiff alleged that “[o]n January 3, 2018, I made a complaint

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Plaintiff only attached the EEOC Right to Sue notice and letter explaining the decision. He did
not attach his EEOC charge.
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of sexual harassment to my district manager. On January 15, 2018, I was discharged. The reason
given for my discharge was for a no-call, no show.” [Doc. 1, pg. 2]. He sued for $20 million
dollars.
On August 1, 2018, this Court granted Defendant Ward’s motion to dismiss, finding that
Plaintiff had failed to state a cause of action against Ward, individually [Doc. 16]. On September
18, 2019, Defendant filed a Motion for Summary Judgment [Doc. 37] and supporting
memorandum [Doc. 38], arguing there was no genuine issue of material fact and that it was entitled
to judgment as a matter of law. Plaintiff responded [Doc. 40].
II.

Standard of Review
Under Fed.R.Civ.P. 56(a), “[t]he court shall grant summary judgment 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.” Ultimately, the court must decide “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The
burden of proving that no genuine dispute of fact exists is strictly upon the moving party. Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). As such, the court must consider the evidence and
“draw all reasonable inferences in favor of the nonmoving party.” National Satellite Sports, Inc.
v. Eliadis, Inc., 253, F.3d 900, 907 (6th Cir. 2001) (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
However, once the moving party has presented sufficient evidence to support summary
judgment, the nonmoving party “must point to evidence in the record upon which a reasonable
finder of fact could find in its favor.” Machoka v. City of Collegedale, No. 1:17-CR-203-TAVCHS, 2019 WL 1768861, at *3 (E.D. Tenn. Apr. 22, 2019) (citing Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986)). The nonmoving party “may not rest upon mere allegation or denials of
his pleading but must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256. A mere scintilla of evidence is not enough; the Court must determine
whether a fair-minded jury could return a verdict in favor of the non-movant based on the record.
Id. at 251-252.
III.

Analysis
As Plaintiff brings his claims under multiple statutes, the Court will address each claim and

the requirements of the statute in turn.
A.

Plaintiff’s claims under 42 U.S.C. § 1983
“Section 1983 requires state action in order for a claim to be cognizable. Specifically, a

§ 1983 claim must satisfy two elements: 1) the deprivation of a right secured by the Constitution
or laws of the United States and 2) the deprivation was caused by a person acting under color of
state law.” Simpson-Gardner v. City of Southfield, 2017 WL 1021067, *1 (S.D. Mich. March 16,
2017) (citing Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003); Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999)).
“Section 1983 does not, as a general rule, prohibit the conduct of private parties acting in
their individual capacities.” Lindsey v. Detroit Entm’t, LLC, 484 F.3d 824, 827 (6th Cir. 2007).
However, a private party may be liable under § 1983 if their conduct is “fairly attributable to the
state.” Collyer v. Darling, 98 F.3d 211, 231–32 (6th Cir. 1996) (citing Lugar v. Edmondson Oil
Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). “There are three tests employed
by the courts to determine whether the challenged conduct is fairly attributable to the state: (1) the
public function test, (2) the state compulsion test and (3) the symbiotic relationship or nexus test.”
Id. at 232 (citing Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992))

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In this case, Aubrey’s Restaurant is what its name suggests, a restaurant. It is a private
party, not a state actor. Plaintiff has not alleged any facts that would suggest that Defendant’s
conduct is in any way fairly attributable to the state. Therefore, Plaintiff cannot succeed on his
claim under § 1983 and that claim is DISMISSED.
B.

Plaintiff’s Title VII Claims
1.

Race and Sex Discrimination Claims

Title VII states that “[i]t shall be an unlawful employment practice for an employer … to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C.A. § 2000e-2(a)(1). A claim under Title VII must be supported by direct
evidence of unlawful conduct or by circumstantial evidence that raises an inference of unlawful
conduct. Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003). Direct evidence, if believed,
requires no inferences to conclude that unlawful conduct was a motivating factor in the challenged
action. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003). If the plaintiff relies upon
circumstantial evidence, the Court utilizes the burden shifting paradigm established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this
framework, the plaintiff is first required to establish a prima facie case of unlawful conduct and, if
that is done, the burden of production shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the challenged conduct. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the defendant articulates such a reason,
the presumption drops from the case, and the plaintiff must then show that the reason offered by
the defendant is a pretext for unlawful conduct. Id. at 508. Whatever method of proof is used, the

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ultimate burden is on the plaintiff to show that he or she suffered unlawful conduct under Title
VII. Id. at 518.
Plaintiff has alleged that he believes Defendant discriminated against him on the basis of
his sex and his race when it terminated his employment on January 15, 2018. Defendant did not
discriminate against him on either basis. In his recitation of the facts of this case, Plaintiff makes
no indication of how his race or his sex had any effect on his termination. Plaintiff states that he
“was the only man touched that was black there under color of … law,” [Doc. 4, pg. 3], but fails
to allege any facts for the Court to reasonably infer that Defendant discriminated against him
“because of [his] race, color, religion, sex, or national origin....” 42 U.S.C. 2000e-2(a)(1)
(emphasis added). An off-duty co-worker touched his shoulder on one occasion, which offended
Plaintiff, but he does not even attempt to establish a causal connection between his race or sex and
his termination. He only makes the conclusory allegation of discrimination. That is insufficient.
See Tucker v. Victor Gelb, Inc., No. 98-4070, 1999 WL 801544, at *1 (6th Cir. Sept. 28, 1999)
(“Conclusory allegations of discrimination are insufficient to state a Title VII claim.”).
But even assuming Plaintiff has made a prima facie case for discrimination on the basis of
his race or sex, Defendant has offered a “legitimate non-discriminatory reason” for terminating his
employment. St. Mary’s Honor Ctr., 509 U.S. at 506-07. Its policy provides that not showing up
for work without providing advanced notice constitutes grounds for termination. That is exactly
what happened. Plaintiff was scheduled for work on January 14th; he did not show, and he did
not call. Plaintiff has not offered any evidence that would suggest Defendant’s reason for his
termination was a pretext for discrimination on the basis of his race or sex. Moreover, the Court
has thoroughly reviewed the record and there is simply no support for an inference that

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Defendant’s stated reason for terminating Plaintiff (i.e., “no show, no call”) was a mere pretext
and Plaintiff was, instead, terminated because of his race or his sex. This claim fails.
2.

Sexual Harassment

Because Plaintiff is proceeding pro se, the Court is liberally interpreting his complaint to
include a claim for sexual harassment and will analyze it under a quid pro quo claim and hostile
work environment claim. “To prevail on a quid pro quo claim of sexual harassment, a plaintiff
must assert and prove (1) that the employee was a member of a protected class; (2) that the
employee was subjected to unwelcomed sexual harassment in the form of sexual advances or
requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the
employee’s submission to the unwelcomed advances was an express or implied condition for
receiving job benefits or that the employee’s refusal to submit to a supervisor’s sexual demands
resulted in a tangible job detriment; and (5) the existence of respondeat superior liability.”
Highlander v. K.F.C. Nat. Management Co., 805 F.2d 644, 648 (6th Cir. 1986). Similarly, “[i]n
order to establish a hostile work environment claim, an employee must show the following: 1) the
employee is a member of a protected class, 2) the employee was subject to
unwelcomed sexual harassment, 3) the harassment was based on the employee's sex, 4)
the harassment created a hostile work environment, and 5) the employer failed to take reasonable
care to prevent and correct any sexually harassing behavior.”

Bowman v. Shawnee State

University, 220 F.3d 456, 462-63 (6th Cir. 2000).
Here, Plaintiff states that Jason Ward, an employee of Defendant, “made contact on
[Plaintiff] and following for 30 sec[onds]s to a minute long.” [Doc. 1, pg. 5]. In his response,
Plaintiff further asserts that Ward “touched [him] in a sexual way and sex was mention [sic].”

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[Doc. 40, pg. 2]. However, these conclusory statements are contradicted by both Plaintiff’s
previous statements and the reports he attached to his complaint.
An internal report3 of the incident, which Plaintiff attached to his complaint, notes that
“Jason [Ward] came into the kitchen and walked up behind [Plaintiff] and put his hands on his
shoulders, then [Ward] continued to follow him around and kept trying to talk to him. At this time,
[Plaintiff] said he could smell alcohol on Jason [Ward]. This made him feel uncomfortable and
this is the reason for his complaint…. Jason [Ward] does touch his shoulders and follows him for
appx 30 sec[onds] to 1 min[ute].” [Doc. 1-1]. The police report states that Ward “put his hands on
the complainant’s shoulders and rubbed against him. The complainant asked him to stop and the
on-duty manager Kim asked Jason [Ward] to leave which he eventually did.” [Doc. 1-2, pg. 3].
Ward plead nolo contendere to assault in General Sessions Court of Hamblen County [Doc. 1-2,
pg. 10].
Assuming the shoulder touch was based on sex, Plaintiff still cannot prevail because he
cannot show that the “unwelcomed advances was an express or implied condition for receiving
job benefits or that [his] refusal to submit to a supervisor’s sexual demands resulted in a tangible
job detriment….” Highlander, 805 F.2d at 648. In other words, he can show no quid pro quo.
Without that, his claim must be dismissed.
He also cannot show a hostile work environment. Plaintiff does not allege that this
incident, in which an off-duty male co-worker touched his shoulder, was more than an isolated
incident. It did not change the conditions of his employment. See Hudson v. City of Highland
Park, 943 F.3d 792, 803 (6th Cir. 2019) (explaining that “‘offhand comments and isolated

3

This report is signed by Plaintiff and Jason Ward, as well as another individual who took the
report. However, it is unclear who the third-party employee was.
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incidents (unless extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment”)(citations omitted). Plaintiff also alleged that Defendant investigated
the incident and it never happened again. In other words, Defendant took reasonable care to
prevent and correct any sexually harassing behavior, if any existed. Bowman, 220 F.3d at 463.
Finally, the Court finds that the one isolated incident cited by Plaintiff, while no doubt offensive
to Plaintiff, was not severe enough to create an objectively hostile work environment. Thus, his
claim fails.
3.

Retaliation Claim

As with discrimination claims, a plaintiff may rely on either direct or circumstantial
evidence to establish that an employer engaged in retaliation. Daniels v. Pike Cty. Comm’rs, 706
F. App’x 281, 291 (6th Cir. 2017). Here, Plaintiff has not offered any direct evidence in support
of his retaliation claim.

Consequently, the McDonnell Douglas burden-shifting framework

applies. See Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013).
For a retaliation claim under Title VII, “plaintiff must demonstrate that: (1) he engaged in
activity protected by Title VII; (2) his exercise of such protected activity was known by the
defendant; (3) thereafter, the defendant took an action that was ‘materially adverse’ to the plaintiff;
and (4) a causal connection existed between the protected activity and the materially adverse
action.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting Jones v. Johanns,
264 F. App’x 463, 466 (6th Cir. 2007)).
For purposes of this analysis, the Court will assume that Plaintiff has made out a prima
facie case for retaliatory discharge. Turning to the burden-shifting framework of McDonnell
Douglas, the issue is whether Defendant has demonstrated a legitimate, nondiscriminatory reason

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for terminating Plaintiff. It has. Plaintiff did not show up for work, and he did not call. That is a
legitimate, nondiscriminatory reason for terminating his employment.
Ms. Jeanne Shampine, the General Manager for Defendant’s Morristown restaurant, stated
that “[her] decision to fire [Plaintiff] had nothing to do with the Jason Ward incident, his race or
his alleged disability.” [Doc. 37, pg. 4]. Defendant’s policy provides that failure to report for an
assigned shift without proper notice is “considered so serious that [it] can result in termination of
employment for a single offense.” [Doc. 37, pgs. 4, 7]. Ms. Shampine noted the corporate policy
is necessary so they will “know if we have enough employees to operate the restaurant.” [Doc. 37,
pg. 4]. The Separation Notice Plaintiff attached to his complaint also provided that his separation
was “No call no show for shift.” [Doc. 1-4]. Ms. Shampine noted that she was not aware that
Plaintiff “had initiated a prosecution against Jason Ward when the decision was made to terminate”
him [Doc. 37, pg. 5].
Plaintiff claimed that his text messages between himself and his supervisor, Mr. Bryan
Forsythe, proves his case. They do not. On January 13, 2018, Plaintiff texted Forsythe that he
was at the emergency room and that he had to leave work early that day. He texted he would bring
a doctor’s excuse when he returned to work. However, Plaintiff failed to mention that he was not
coming in the next day, and Forsythe would have no reason to believe so. After all, Plaintiff only
thought he might have a pulled muscle. Rather than coming to work or advising Defendant he
could not come in, he simply did not show up. Instead, he returned to work on January 15th with
a doctor’s note excusing him for two days. At this point, Ms. Shampine and Mr. Forsythe informed
Plaintiff that not showing up for work and not calling in advance were grounds for termination,
and they fired him.
Plaintiff never informed his supervisors that he was unable to make his shift on January

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14. In fact, he does not dispute the issue. Instead, he argues that the reason Defendant gave for
terminating him was pretextual. But he does so without any support. Defendant had a legitimate,
nondiscriminatory reason for terminating Plaintiff.
C.

Plaintiff’s claim under the American’s with Disabilities Act
The ADA prohibits discrimination in employment against qualified individuals with a

disability. 42 U.S.C. § 12112(a). “In order to establish a prima facie case of disability
discrimination in the employment context, a plaintiff must allege and prove (1) that he is an
individual with a disability; (2) that he is otherwise qualified for the position he seeks or holds;
and (3) that he was excluded from the position under circumstances that raise a reasonable
inference of unlawful discrimination.” Bradshaw v. Goodyear Tire and Rubber Co., 485 F.Supp.2d
821, 826 (N.D. Ohio 2007) (citing Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 441 (6th
Cir. 1991)). Here, there is no indication that Plaintiff was terminated because of any alleged
disability. Plaintiff has not shown that any disability prevented him from calling in. He certainly
knew how to communicate with his employer as he texted back and forth with his supervisor. He
just did not tell him that he was not going to show up the next day he was scheduled to work.
Therefore, Plaintiff’s claim under the ADA must fail.
IV.

Conclusion
Based on the foregoing, the Court finds that based on the record as a whole, Plaintiff has

failed to show as a matter of law that Defendant violated 42 U.S.C. 1983, Title VII, or the ADA.
Therefore, Defendant’s Motion for Summary Judgment [Doc. 37] is GRANTED, and this case is
DISMISSED WITH PREJUDICE. Defendant’s motion to dismiss [Doc. 37] is DENIED as
moot. Defendant’s Motion for Extension of Time to Complete Discovery [Doc. 56] is DENIED
as moot.

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Further, because Exhibit 2 to Plaintiff’s complaint [Doc. 1-2] contains Plaintiff’s personal
identifying information, the Clerk is DIRECTED to seal that Exhibit. A separate order dismissing
this case shall enter.
SO ORDERED:

s/ Clifton L. Corker
United States District Judge

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