McLaurin et al v. Waffle House, Inc.

Filing 63

MEMORANDUM OPINION AND ORDER granting 51 MOTION for Summary Judgment, granting 53 MOTION to Supplement Motion for Summary Judgment as to 51 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
April 13, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

SHARON SMITH McLAURIN and
COTTRELL McLAURIN,
Plaintiffs,
v.

WAFFLE HOUSE, INC.,
Defendant.

§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION NO. H-14-0740

MEMORANDUM OPINION AND ORDER

Plaintiffs,
Toni

Lewis

House,

Inc.,

Kelly,

Sharon Smith McLaurin,
bring this

Cottrell McLaurin,

action against

defendant,

and

Waffle

for discrimination in public accommodation based on

race in violation of Title II of the Civil Rights Act of 1964, 42
U.S.C.

§

2000a ("Title II"); for false imprisonment,

infliction of emotional distress,

negligent hiring,

intentional
supervision,

training and retention, assault and battery under state law; and
declaratory relief under federal and state law. 1

1

Plaintiffs seek

Plaintiffs' Third Amended Complaint, Docket Entry No. 16.
Plaintiff's Third Amended Complaint named two additional parties:
Donald Kelly was named as an additional plaintiff, and the Bandidos
Motorcycle Club was named as an additional defendant.
Since the
Bandidos Motorcycle Club has not made an appearance and the court's
file does not contain any indication that this defendant has ever
been served with a citation and copy of the complaint, Waffle
House, Inc. is the only defendant.
On May 21, 2015, the court
granted Plaintiff Donald Kelly's Motion to Dismiss (Docket Entry
No. 39), and on June 11, 2015, Donald Kelly filed a Stipulation of
Dismissal with Prejudice (Docket Entry No. 41).

a declaration of rights declaring that defendant's alleged conduct
violated their civil rights,
preventing

defendant

compensatory

damages

temporary and permanent injunctions

from
in

discriminating

the

amount

of

against

$8,000,000.00,

damages, costs, and attorneys' fees under 42 U.S.C.
applicable state statutes.
Waffle House,
No.

plaintiffs,

§

punitive

1988 and any

Pending before the court is Defendant

Inc. 's Motion for Summary Judgment

(Docket Entry

51), and Defendant Waffle House, Inc.'s Motion to Supplement

its Motion for Summary Judgment to add Exhibits K-la through K-2b
(Docket Entry No. 53).
motion

for

summary

For the reasons stated below, the pending

judgment

and motion

to

supplement

will

be

granted, and this action will be dismissed with prejudice.
I.

Undisputed Facts

In the early morning hours of January 22, 2012, plaintiffs and
former plaintiff, Donald Kelly, entered the Waffle House restaurant
in Baytown, Texas, and sat down at an empty booth.
African-American.

Plaintiffs are

A Caucasian Waffle House waitress,

Brittany

Campbell, told the plaintiffs that they could not sit there because
the booth was reserved. 2

When plaintiffs refused to move, Brittany

2

See Oral/Videotaped Deposition of Cottrell McLaurin Volume 2
("Cottrell McLaurin Deposition Vol. 2"), Exhibit F to Defendant
Waffle House, Inc. 's Motion for Summary Judgment ( "De"fendant' s
MSJ"), Docket Entry No. 51-6, p. 37:15-18 {"Q. You didn't hear her
say, 'You can't sit there because of your skin color'? A. She said
we couldn't sit there because the booth was reserved. Somebody was
already sitting there.").
-2-

Campbell asked an African-American co-worker to tell the plaintiffs
they could not sit there, but the co-worker said, "I don't see why
there's a problem with them sitting here." 3

Thereafter, Brittany

Campbell told the plaintiffs that she would not serve them.

The

grill operator and employee in charge, a Caucasian named Jeffery
("J.D.") Authement ("Authement") , apologized to the plaintiffs for
Brittany Campbell's conduct, tried to persuade another wait person
to serve them,

and when unable to do so,

took the plaintiffs'

order, cooked, and served the plaintiffs their meals. 4

3

0ral and Videotaped Deposition of Toni Lewis Kelly ("Kelly
Deposition"), Exhibit C to Defendant's MSJ, Docket Entry No. 51-3,
pp. 30:25-31:8 ("Q. Did -- once you wouldn't move what did she do?
A. She -- she then .
. walked over to grab one of .
. her coworkers to come over and explain to us that we could not sit there.
So she went over and grabbed a co-worker and walked him over to
. . . our seat and told him 'Could you tell these people they can't
sit here?'
And he looked at the table and he said, immediately
after that, 'I don't see why there's a problem with them sitting
here.'") .
4

Id. at 40:14-41:23 ("Q. All right. And so after--- and then
Brittany got the other guy and he came over and said 'I don't see
why you can't sit there' and so y'all continued to sit there. How
long between that and when somebody actually took your order?
A.
. So that's when the manager walked over. And the manager
started to apologize for, you know-- the manager -- she's trying
to explain to the manager, you know, that we couldn't sit there
and, you know, that -- you know, she wasn't gonna serve us and so
the manager started to apologize for her actions and told us that
he would go ahead and try and get us served -- or try to get
someone over there to try to get our -- our order but he was pretty
busy.
He was, of course, on the grill at the time.
So at that
particular point between then and the -- probably -- I would say it
was probably maybe 15 minutes before we actually got our order
taken. Q. Okay. But he is the one that took your order? A. He is
the one that took it because, of course, all the other wait staff
was pretty busy with the other customers because it was pretty
(continued ... )
-3-

A group of motorcyclists (James Campbell-Brittany Campbell's
father,

Robert

and Mandi

Haynes,

Allan Ayers,

and a

Bandido)

entered the restaurant and sat at a booth next to the plaintiffs. 5
Campbell served the motorcyclists who plaintiffs contend were all
Caucasian. 6

After

refusing

to

serve

the

plaintiffs,

Campbell harassed them by asking about their orders.

Brittany
Plaintiffs

allege that when plaintiffs left the restaurant, James Campbell and
other members
Campbell

of

his

showed a

party

knife

to

followed

them outside

intimidate

and

where

threaten

James

them,

and

Brittany Campbell insulted and embarrassed them. 7

4

( • • . continued)
crowded. Q. So he tried to get another waitress -- A. He tried to
get someone else from the other side to come and wait on us. They
were like, we can't, at the time we're busy, you know, we're packed
up.
And then he came over and he immediately told us that, you
know, that he would go ahead and take care of us.
And again
apologizing again for Brittany's actions.") .
See also Oral and
Videotaped Deposition of Cottrell McLaurin Volume 1 ("Cottrell
McLaurin Deposition Vol. 1"), Exhibit B to Defendant's MSJ, Docket
Entry No. 51-2, p. 47:23-25 ("Q. And I understand this fellow,
J.D., was the guy that took your order and served you the food?
A. Yes.
He was."); Declaration of Jeffery "JD" Authement,
Exhibit J to Defendant's MSJ, Docket Entry No. 51-10, ~~ 6-7
(stating that no manager was on duty, he was operating the grill,
and he and salesperson, Lori Anders, were the employees in charge).

5

See Oral and Videotaped Deposition of Robert Haynes ("Robert
Haynes Deposition"), Exhibit D to Defendant's MSJ, Docket Entry
No. 51-4, pp. 21:22-22:9; 25:12-15 (one member of their party was
a Bandido, and James Campbell was Brittany Campbell's father).
6

Plaintiffs' Supplemental Response in Opposition to Waffle
House Inc.'s Motion for Summary Judgment ("Plaintiffs' Supplemental
Response"), Docket Entry No. 58, p. 2.
7

Plaintiffs'
pp. 2-3 ~ 9.

Third Amended Complaint,
-4-

Docket Entry No.

16,

II.
On

January

15,

Procedural History

2014,

Sharon

Smith McLaurin

McLaurin filed suit against the Waffle House,
District

Court

of

asserting claims

Harris

County,

Texas,

and

Inc.,

Cottrell

in the 270th

Cause No.

2014-01839,

for race and color discrimination;

respondeat

superior and ratification; false imprisonment; intentional infliction

of

emotional

distress;

negligent

hiring,

training, and retention; and assault and battery. 8
2015,

plaintiffs

filed

an

amended

Toni Lewis Kelly and Donald Kelly. 9

petition

supervision,
On January 22,

adding

plaintiffs

On March 21, 2014, defendant

removed this action on the basis of diversity jurisdiction,
U.S.C.

§

1332(a),

Texas,

defendant

controversy

28

asserting that plaintiffs are all citizens of
is

exceeds

a

citizen

of

Georgia,

$1,000,000.00. 10

The

and
live

the

amount

in

pleading

is

Plaintiffs' Third Amended Complaint (Docket Entry No. 16) . 11
III.

Standard of Review

Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law

Defendant Waffle House, Inc.'s Notice of Removal, Docket
Entry No. 1, p. 1 and Plaintiffs' Original Petition, Exhibit C-1
thereto, Docket Entry No. 1-1.
8

9

Id.

10

&

n.1.

Id. at 3-5.

nsee Order, Docket Entry No. 24, denying defendant's motion
to strike Plaintiffs' Third Amended Complaint.
-5-

entitles it to judgment.
material

facts

are

Disputes about

Fed. R. Civ. P. 56(c).

"genuine"

if

the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106

s. Ct. 2505, 2511 (1986).

The

Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing

sufficient

to

against a party who fails to make a

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."

s . Ct . 2 54 8
"must

I

2 55 2

( 19 8 6) .

Celotex Corp.

v.

Catrett,

106

A party moving for summary judgment

'demonstrate the absence of a

genuine

issue of material

fact,' but need not negate the elements of the nonmovant's case."
Little v.

Liquid Air Corp.,

(en bane)

(per curiam) .

Rule 56(c)

If

37 F.3d 1069,

1075

(5th Cir.

1994)

the moving party meets this burden,

requires the nonmovant to go beyond the pleadings and

show by admissible evidence that specific facts exist over which
there is a genuine issue for trial.

Id.

In reviewing the evidence

"the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or
weigh the evidence."
120

S.

Ct.

2097,

Reeves v. Sanderson Plumbing Products, Inc.,

2110

(2000)

The

nonmovant

is

required

to

identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim.
Id. at 1537.

Factual controversies are to be resolved in favor of
-6-

the nonmovant,

"but only when .

evidence of contradictory facts."
IV.

. both parties have submitted
Little, 37 F.3d at 1075.

Analysis

Asserting that "rude or poor service is not actionable and an
employer is not responsible for alleged intentional torts of its
employees that fall outside their scope of employment," 12 defendant
argues that it is entitled to summary judgment because plaintiffs
are unable to produce evidence capable of raising a genuine issue
of

material

fact

on

any

of

their

asserted

claims,

i.e. ,

for

discrimination in public accommodations in violation of the Civil
Rights

Act

of

1964,

42

U.S.C.

§

2000a,

false

intentional infliction of emotional distress,
supervision,

training,

and retention,

imprisonment,

negligent hiring,

assault and battery,

and

declaratory judgment . 13
A.

Discrimination in Public Accommodations

Plaintiffs allege that Waffle House discriminated against them
on the basis of

their race,

African-American,

in violation of

Title II by "fail [ing] and refus [ing] to provide restaurant service

12

Defendant Waffle House, Inc.'s Reply to Plaintiffs' Response
in Opposition to Defendant's Motion for
Summary Judgment
("Defendant's Reply"), Docket Entry No. 57, p. 1.
13

Id.
See also Defendant Waffle House, Inc. 's Supplemental
Reply to Plaintiffs' Supplemental Response in Opposition to
Defendant's Motion for Summary Judgment ("Defendant's Supplemental
Reply"), Docket Entry No. 60, p. 1.
-7-

to Plaintiffs that was equal to that provided by Defendant[] Waffle
House to Caucasian persons (as exemplified by service [provided] to
Defendant Bandidos Motorcylce Club). " 14 Plaintiffs also allege that
Waffle House has engaged in a pattern and practice of refusing to
provide

equal

service

to

African

Americans,

and

that

unless

permanently enjoined from the alleged conduct will continue to
discriminate against plaintiffs and other members of their race. 15
Defendant argues that it is entitled to summary judgment on the
Title II claims because plaintiffs are unable to produce evidence
from which a reasonable fact-finder could conclude that the conduct
of Brittany Campbell about which they complain was motivated by
race discrimination, or that injunctive relief is warranted. 16
1.

Applicable Law

Title II prohibits discrimination or segregation in places of
public accommodation and in pertinent part provides:

Plaintiffs' Third Amended Complaint, Docket Entry No. 16,
p. 3 ~ 10. See also Plaintiffs' Response in Opposition to Waffle
House Inc.'s Motion for Summary Judgment ("Plaintiffs' Response") ,
Docket Entry No. 54, p. 3 ("Waffle House by and through its
employee Brittany Campbell discriminated against Plaintiffs by
refusing to serve them based on their race."); Plaintiffs'
Supplemental Response, Docket Entry No. 58, p. 2 ("Plaintiffs
proffer evidence from the record that the table of Caucasian
customers adjacent to Plaintiffs were treated differently by
Brittany Campbell than Plaintiffs were treated.").
14

15

Plaintiffs'
pp. 3-4 ~~ 11-12.
16

Third Amended Complaint,

Docket Entry No.

Defendant's MSJ, Docket Entry No. 51, pp. 4-13.
-8-

16,

(a)

Equal access
All persons shall be entitled to the full and equal
enjoyment of the goods,
services,
facilities,
privileges, advantages, and accommodations of any
place of public accommodation, as defined in this
section, without discrimination or segregation on
the ground of race, color, religion, or national
origin.

(b)
Each of the following establishments which serves
the public is a place of public accommodation
within the meaning of this subchapter if its
operations affect commerce .

(2)

42 U.S.C.

§

any restaurant .
principally engaged
in selling food for consumption on the
premises .

2000a.

The gravamen of a Title II claim is the denial

to plaintiff of full and equal enjoyment of the services offered by
the establishment.

See United States v. DeRosier, 473 F.2d 749,

752 (5th Cir. 1973)

("[Title II] proscribes any and all efforts to

deny one

'the full and equal enjoyment of the goods,

facilities,

privileges,

advantages,

and accommodation'

services,
of

that

place because of discrimination based on race, color, religion or
national origin.")

The only relief available under Title II is

injunctive relief.

See Newman v. Piggie Park Enterprises, Inc., 88

S. Ct. 964,

966

(1968)

(per curiam)

("When a plaintiff brings an

action under [Title II], he cannot recover damages.").

See also

Fahim v. Marriott International, Inc., Civil Action No. H-06-4035,
2007 WL 3118186,

*1 (S.D. Tex. October 22, 2007)
-9-

("[I]t has been

established for decades that actual damages are not available under
Title II."),

aff'd sub nom.,

Fahim v.

Marriott Hotel Services,

Inc., 551 F.3d 344 (5th Cir. 2008).
Discrimination claims brought pursuant to Title II can be
proven by direct or circumstantial evidence.
at 349.

Direct evidence of discrimination is evidence "that, if

believed,

proves

the

fact

inference or presumption."
305,

See Fahim, 551 F.3d

310 n.6

(5th Cir.

of

discriminatory

animus

Rachid v. Jack In The Box,

2004).

without
376 F.3d

Plaintiffs have not cited direct

evidence of race discrimination and do not argue that this is a
direct evidence case.

Instead, plaintiffs have acknowledged that

claims for discrimination in public accommodation asserted under
Title II are commonly analyzed pursuant to the framework used for
employment discrimination asserted under Title VII and 42 U.S.C.
§

1981 articulated by the Supreme Court in McDonnell Douglas Corp.
93 S. Ct. 1817 (1973) . 17

v. Green,

See Fahim, 551 F.3d at 349-50

(recognizing that due to the scant amount of case law analyzing
discrimination claims under Title II, courts often apply case law
developed

with

respect

to

claims

of

brought under Title VII and 42 U.S.C.
Douglas

framework

used

to

analyze

17

employment
§

discrimination

1981).

circumstantial

The McDonne 11
evidence

of

Plaintiffs' Supplemental Response, Docket Entry No. 58, p. 4
(" [T] o present proof by circumstantial evidence of intentional
discrimination, plaintiffs must satisfy the heightened burden
shifting analytical framework established in McDonnell Douglas
Corp. v. Green.").
-10-

discrimination is a

burden- shifting exercise pursuant to which

plaintiffs carry the initial burden of demonstrating a prima facie
case

of

discrimination,

after

which

the

burden

shifts

to

the

defendant to articulate a legitimate, non-discriminatory reason for
the adverse action at issue.

If the defendant articulates such a

reason, the burden shifts back to the plaintiffs to cite evidence
capable of creating a genuine issue of material fact for trial that
the defendant's

stated reason

pretext for discrimination.
Fahim, 551 F.3d at 349-50.
2.

is

not

true

but,

instead,

is

a

McDonnell Douglas, 93 S. Ct. 1824-27;
See also Reeves, 120 S. Ct. at 2106.

Application of the Law to the Undisputed Facts
(a)

Plaintiffs Have Failed to Cite Evidence Capable of
Establishing Discrimination in Public Accommodation
(1)

Citing
plaintiffs

Plaintiffs Have Established a Prima Facie Case

Fahim,
are

551

unable

F.3d at
to

350,

establish

Waffle
a

House

prima

argues

facie

case

that
of

discrimination because they are unable to produce evidence showing
either that they were denied service,
received

was

received. 18

not
In

the
Fahim,

same
551

service
F.3d

at

or that the service they
that
350,

Caucasian
the

customers

Fifth

Circuit

acknowledged with approval that the district court had extrapolated
from employment law cases the following elements of a prima facie
case of discrimination in public accommodation:

18

Defendant's MSJ, Docket Entry No. 51, pp. 6-10.
-11-

[Plaintiff] could establish a prima facie case of
discrimination in public accommodation if she showed that
( 1) she is a member of a protected class; ( 2) she
attempted to contract for the services of a public
accommodation; ( 3) she was denied those services; and
(4) the services were made available to similarly
situated persons outside her protected class.
The Fifth Circuit noted that
some courts have applied a test in which the fourth
element is modified. The fourth element in that modified
test asks whether (a) the services were made available to
similarly situated persons outside the plaintiff's
protected class or (b) the plaintiff "received services
in a markedly hostile manner and in a manner which a
reasonable person would find objectively discriminatory."
Id.

at n.2

(citing Christian v.

862, 872 (6th Cir. 2001)

Wal-Mart Stores,

Inc.,

252 F.3d

(citing Callwood v. Dave & Buster's, Inc.,

98 F. Supp. 2d 694 (D. Md. 2000)).

Some courts apply the modified

test to cases arising in restaurant settings because plaintiffs in
such cases are often unable to point to similarly situated persons
outside of their protected class who were treated differently.

See

Christian, 252 F.3d at 870-71; Callwood, 98 F. Supp. 2d at 706.
Factors relevant to the determination of whether conduct
is "markedly hostile" are whether the conduct of a
merchant or her agents is (1) so profoundly contrary to
the manifest financial interests of the merchant and/or
her employees;
(2)
so far outside widely-accepted
business norms; and (3) so arbitrary on its face, that
the
conduct
supports
a
rational
inference
of
discrimination.
Callwood, 98 F. Supp. 2d at 708.

Because the plaintiff in Fahim

was able to point to similarly situated persons who were treated
differently and neither party argued that the Callwood test applied
in that case,

the Fifth Circuit did not have to decide if the
-12-

Call wood test may appropriately be applied in Title II cases.
Fahim, 551 F.3d at 350 & n.2.
Acknowledging that "they were not denied service per se, " 19
plaintiffs

argue

establishing

a

discrimination

that
prima

under

they

have

facie

the

nonetheless
of

case

Fahim

test

cited

public

because

evidence

accommodation

"[d]efendant

has

conceded to elements (1) they are members of a protected class and
(2)

they

attempted

to

contract

for

services

of

a

public

accommodation, " 20 and that their own deposition testimony shows that
(3) they were denied those services (See Plaintiffs'
Exhibit C: lines 6-16, page 29; lines 21-25, page 31;
lines 1-9, page 32; lines 23-25, page 40; lines 1-8 and
21-23, page 41; Defendant's Exhibit A: lines 10-19,
page 55; lines 18-24, page 56; lines 1, 2, page 57;
line 3, page 59; lines 1-18, page 61; lines 21, 22,
page 66; lines 5-17, page 73; Defendant's Exhibit B:
lines 4-6, 12, 13, page 44; lines 1-11, page 45,
lines 11, 12, 17-23, page 51; lines 23-25, page 55; and
Defendant's Exhibit E: lines 8, 9, page 94) and (4) the
services were made available to similarly situated
persons outside the protected class (See Plaintiffs'
Exhibit D: lines 10, 11, page 12; lines 16, 17, page 33;
lines 15-17, page 36; and Exhibit E: lines 18-20,
page 13; lines 11-14, page 30; and lines 10, 11,
page 31) . 21
Defendant argues that plaintiffs have failed to establish a prima
facie case because the evidence only shows that Brittany Campbell
did not serve the plaintiffs, not that the plaintiffs were denied
services. 22
19

Id. at 5.

20

Id. at 6.

22

Defendant's Reply, Docket Entry No. 57, pp. 3-5; Defendant's
Supplemental Reply, Docket Entry No. 60, pp. 3-5.
-13-

The evidence regarding the service that plaintiffs received at
the Waffle House is not in dispute;

in dispute is whether that

evidence establishes the third and fourth elements of a prima facie
case of discrimination in public accommodation in violation of
Title II,

i.e., whether the plaintiffs were denied services, and

whether the services that the plaintiffs were denied were made
available to similarly situated persons outside their protected
class.

Defendant's

argument

that

plaintiffs

were

not

denied

services made available to similarly situated persons outside their
protected class is unavailing because plaintiffs did not receive
services from Brittany Campbell, the wait person assigned to serve
their table but,

instead,

from Authement,

the employee in charge

who was operating the grill and unable to find another wait person
willing to serve the plaintiffs.

Moreover,

even after Brittany

Campbell, the wait person assigned to serve the plaintiffs' table,
refused to serve them, Brittany Campbell harassed the plaintiffs by
asking

them

questions

uncomfortable.

about

their

food

that

made

them

feel

While none of the plaintiffs complained about their

food, and two of the plaintiffs ate their food, Brittany Campbell's
actions made Cottrell McLaurin so uncomfortable that he did not eat
his food.

See

§

I, above.

Although it is a close question, the

court concludes that plaintiffs have established a prima facie case
of

discrimination

evidence
Waffle

shows

House

in

that

from

public

while
the

accommodation

plaintiffs

grill

because

received

operator/employee
-14-

undisputed

services
in

at

the

charge,

the

services they received differed from the services that the group of
motorcyclists

sitting at

the next

table who were not African-

American received from the waitress who refused to serve them.
(2}

Defendant Has Articulated a Non-Discriminatory
Reason for the Alleged Discrimination

Defendant argues that Brittany Campbell had a legitimate, nondiscriminatory reason for telling plaintiffs not to sit at their
chosen table and then refusing to serve them; i.e., that the table
or reserved for another party. 23

was taken by another customer,
Defendant argues that

[e]ven though Plaintiffs may not have believed Brittany
Campbell when she explained her reasoning, Plaintiffs
have not put forth evidence sufficient to create a
genuine issue of material fact that this reason was
pretext or that Plaintiffs' race was a motivating factor
in Brittany Campbell's alleged refusal to serve them. 24
Defendant's contention that the plaintiffs' table was already taken
by another customer or reserved for another party is a legitimate,
non-discriminatory reason for Brittany Campbell's actions.
(3}

Once
reason

a

for

Douglas

Plaintiffs Have Not Produced Evidence
Pretext Capable of Raising a Fact Issue

defendant
its

burden

offers

allegedly
shifting

a

legitimate,

discriminatory
analysis

23

non-discriminatory

action,

requires

of

the

plaintiffs

McDonnell
to

cite

Defendant's MSJ, Docket Entry No.
51, p. 10
(citing
Declaration of Lori Anders, Exhibit I thereto, Docket Entry
No. 51-9, and Declaration of Jeffrey "J.D." Authement, Exhibit J
thereto, Docket Entry No. 51-10).
24

Id.

at 11.
-15-

evidence sufficient to create a genuine issue of material fact that
the defendant's reason is a pretext for discrimination.
F. 3d at 350-51.

Fahim, 551

To raise an issue of pretext plaintiffs must

present evidence showing that defendant's proffered reason for
Brittany Campbell's failure to serve them is false or unworthy of
credence,

and more likely than not motivated by discriminatory

animus for plaintiffs' race,

i.e., African-American.

Id. at 351

(citing Rachid, 376 F.3d at 312).
Plaintiffs

argue

that

the

defendant's

legitimate,

non-

discriminatory reason for Brittany Campbell's actions was not true
because Waffle House has an open seating policy.

As evidence that

the defendant's stated reason for the disparate treatment they
received was a pretext for race discrimination,
Plaintiffs have offered these facts:
specifically
Brittany Campbell's repeated reference to Plaintiffs as
"you people" (See Exhibit C 30:6, 10, 11; 32:1; 46:25;
53:24; 59: 13-15); that Brittany Campbell refused to serve
them (See Exhibits C 31:25; 32:1, 4, 12, 13; 41:1; and D
33:23-24; 34:24-25); that Brittany Campbell told them
that they needed to move and that they could not sit at
a booth on that side of the restaurant (See Exhibits C
32:3-4) ; that there were no other African American
patrons or available tables on that side of the
restaurant (See Exhibit C 32:4-6); that Brittany Campbell
taunted and harassed them the entire time Plaintiffs were
in the restaurant (See Exhibit C 42:6-7); and that
Brittany Campbell refused them service not because of her
pretext that the table belonged to another patron, but
because she was holding the table for a group of
motorcycle riders among whom all were member(s) of "noninclusive" clubs (See Exhibit D 58:2-8) and/or the "1%"
"outlaw" (See Exhibits D 17:23-25; 18:1-6; 59:7-13; and
E 17:8-13) motorcycle club "The Bandidos." 25

25

Plaintiffs' Response, Docket Entry No. 54, pp. 3-4.
-16-

Defendant does not dispute that the waitress assigned to serve
the plaintiffs' table, Brittany Campbell, told the plaintiffs that
they could not sit at their chosen table because it was occupied or
reserved for another party, refused to serve the plaintiffs when
they

refused

people."

to

move,

Instead,

or

referred

to

defendant argues

the

that

plaintiffs

"[a] t

as

most,

"you

[Brittany

Campbell's statements and actions] would be conduct in violation of
Waffle House's seating policy- not an actionable federal civil
rights violation." 26

Defendant disputes, however, that plaintiffs

have presented evidence from which a reasonable fact-finder could
conclude

that

Brittany

Campbell's

actions

were

discrimination based on the plaintiffs'

race. 27

plaintiffs'

the

judgment,

response
defendant

in

opposition

argues

that

to
"by

motivated

Instead,

motion

for

[p}laintiffs'

by

citing
summary

very

own

admission, Brittany Campbell did not refuse to serve [p]laintiffs
because of their race, but rather because she was saving the table
for another party. " 28
In response to defendant's argument that Brittany Campbell had
a legitimate, non-discriminatory reason for telling them not to sit
at their chosen table and then refusing to serve them, plaintiffs
assert that

26

Defendant's Supplemental Reply, Docket Entry No. 60, p. 4.

27

Id. at 4-5
No. 54, p. 4).
28

(quoting

Plaintiffs'

Id. at 1.
-17-

Response,

Docket

Entry

Brittany Campbell refused them service not because of her
pretext that the table belonged to another patron, but
because she was holding the table for a group of
motorcycle riders among whom all were member(s) of "noninclusive" clubs (See Exhibit D 58:2-8) and/or the "1%"
"outlaw" (See Exhibits D 17:23-25; 18:1-6; 59:7-13; and
E 17:8-13) motorcycle club "The Bandidos." 29
Exhibits D and E cited above are the depositions of Robert and
Mandi Haynes, two members of the group of motorcyclists who sat at
the table next to the plaintiffs.

Robert Haynes testified that he

belongs to a motorcycle club for fire fighters called Fire and
Iron, and that the club did not have any African-American members. 30
Mandi Haynes testified that the Fire and Iron club is not a "1%"
club, meaning that it is not an outlaw club. 31
Despite the fact that Waffle House has an open seating policy,
the

evidence

shows

and

plaintiffs

themselves

argue

that

Brittany Campbell's actions were motivated by her desire to hold
the table at which the plaintiffs chose to sit for another party,
i.e.,

the party of motorcyclists that included her father.

Any

inference that Brittany Campbell's actions were motivated by racial
animus

29

because

the

Fire

and

Iron club

to which Robert

Haynes

Plaintiffs' Response, Docket Entry No. 54, p. 4.

30

Robert Haynes Deposition, Exhibit D to
Docket Entry No. 51-4, pp. 17:23-18:6; 59:7-13.

Defendant's

MSJ,

0ral and Videotaped Deposition of Mandi Haynes ( "Mandi Haynes
Deposition"), Exhibit 4 to Plaintiffs' Response, Docket Entry
No. 55-4, p. 17:8-13. See also Robert Haynes Deposition, Exhibit D
to Defendant's MSJ,
Docket Entry No.
51-4,
pp.
17:7-18:17
(testifying that the "1%" clubs are clubs with territories such as
the Hells Angels in California and the Bandidos in Texas, but that
his club has no territory and is not a 1% club) .
31

-18-

belongs had no African-American members is insufficient to raise a
fact issue for trial because there is no evidence that Brittany
Campbell knew or had reason to know that the Fire and Iron club had
no African-American members,

the group of motorcyclists at the

Waffle House did not all belong to that same club, and there is no
evidence that the Bandidos motorcycle club to which at least one of
the group belonged had no African-American members. 32
Plaintiffs' reliance on Brittany Campbell's use of the phrase
"you people"

is

also

insufficient

to

raise

an

inference

that

Brittany Campbell's actions were motivated by race discrimination
because that phrase is neither overtly racial nor discriminatory.
See

Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 269-70 (3d

Cir. 2010)
people"

(collecting cases rejecting reliance on the phrase "you

used in isolation as

"too vague"

to constitute either

direct or circumstantial evidence of race discrimination)

See

also Whitley v. Peer Review System, Inc., 221 F.3d 1053, 1056 (8th
Cir. 2000)

(describing use of the phrase "you people" as evidence

in a McDonnell Douglas analysis "innocuous").

Moreover, although

all three of the plaintiffs testified about what Brittany Campbell
said to them, only one of them, Toni Lewis Kelly,
Brittany Campbell used the term "you people."

testified that

Toni Lewis Kelly

testified that:

32

See Robert Haynes Deposition, Exhibit D to Defendant's MSJ,
Docket Entry No. 51-4, pp. 21:22-22:9 (stating one member of their
party was a Bandido) .
-19-

Q.

And what did she say after Sharon asked her why?

A.

She told us -- she told her that because she said
that we couldn't sit there and, quote-unquote, she
said, because you people can't sit here.

Q.

When she said that, did she make any comments about
your race?

A.

No.

Q.

She just said uyou people can't sit here."

A.

Correct.

Q.

But she never explained why you couldn't sit there?

A.

Well,
she just said that because someone was
sitting there.
Well, of course, when we walked in
the table was empty, there was no one there. 33

Q.

And did Brittany ever say anything to anybody at
your table about your race or anything?

A.

Other than calling us uyou people."

Q.

And when she called -- called you uyou people," do
you think she meant -- meant that as a racial,
derogatory term?
Ms. Session: Objection; form.

A.

I definitely think that. 34

Toni Lewis Kelly also testified that Brittany Campbell repeated the
phrase uyou people"

to the plaintiffs after they had exited the

restaurant and were outside in the parking lot. 35

A plaintiff's

subjective belief that she was being targeted for discriminatory

33

No.

Kelly Deposition, Exhibit C to Defendant's MSJ, Docket Entry
p. 30:2-16.

51-3,
34

Id. at 43:17-24.

35

Id. at 46:25; 53:24;

59:13-15.
-20-

conduct is not enough to withstand summary judgment.

See Douglass

v. United Services Automobile Association/ 79 F.3d 1415 1 1430 (5th
Cir.

1996)

targeted

(plaintiff's

is

not

enough

subjective
to

belief

withstand

that

summary

she

was

being

judgment) .

See

Anderson, 621 F.3d at 279 (rejecting use of the phrase "you people"
as sufficient to show "that discrimination was more likely than not
a .

. determinative cause of [the defendant's actions]").
When asked to describe their encounter with Brittany Campbell,

neither Sharon Smith McLaurin nor Cottrell
Brittany Campbell
excerpts

from

used

the

phrase

McLaurin

"you people."

Sharon Smith McLaurin's

said that

Instead,

deposition cited

in

in
the

plaintiffs' responses to the Defendant's MSJ 1 Sharon Smith McLaurin
testified:
Q.

And did somebody come over to wait on you?

A.

Brittany.

Q.

And did she come over and take your order?

A.

No, sir. She just told us we needed to move.
we could not sit there.

Q.

So precisely she said you needed to move/ you could
not sit there?

A.

Yes, sir.

Q.

Did she give you any explanation at that time?

A.

She just said we could not sit there. 36

36

That

Plaintiffs' Supplemental Response, Docket Entry No. 58, p. 5
(citing Oral and Videotaped Deposition of Sharon Smith McLaurin
Volume 1 ("Sharon Smith McLaurin Deposition Vol. 1"), Exhibit A to
Defendant's MSJ, Docket Entry No. 51-1, p. 55:10-19). See also id.
at 56:24 ("She just said you just can't sit there.").
-21-

Plaintiffs also cite Sharon Smith McLaurin as testifying:
Q.

And on your call you mentioned that Brittany said
you couldn't -- she wouldn't serve you because of
where you sat?

A.

Yes, ma'am.

Q.

Did she at that point say anything,
"I'm not
serving you because you're black and you're sitting
there"?

A.

No. She said that she wasn't serving us because we
were sitting out of place. 37

Plaintiffs also cite excerpts from the deposition of Cottrell
McLaurin where he testified:
Q.

. And then so what happened next?

You sit down

A.

We sat down.
The young lady came over and told us
we couldn't sit there. And stated if we continued
to sit there, she wasn't going to serve us.

Q.

Did she

A.

I did.
My wife did.
not moving.

Q.

Did you ask her why you couldn't sit there?

A.

She stated that the booth was reserved for somebody
else.
Somebody else had already been sitting
there.
And my response to her, the waitress, was
if somebody else was sitting there, there should
have been at least tableware or some kind of glass
on the table,
if somebody was sitting there.
Wasn't anything on the table.
It was clear.

did you respond to her?
And I told her, I said we're

So we were under the assumption you're free to sit
anywhere you want to.
It's open seated.
There's
no waitresses to come seat you at a restaurant.

37

Plaintiffs' Supplemental Response, Docket Entry No. 58, p. 5
(citing Sharon Smith McLaurin Deposition, Volume 2 ("Sharon Smith
McLaurin Deposition Vol. 2"), Exhibit E to Defendant's MSJ, Docket
Entry No. 51-5, p. 34:1-22).
-22-

And so that went on for maybe ten or fifteen
minutes.
I'm not going to serve you and I'm not
going to do this and that.
Q.

And what else was said during that ten to fifteen
minutes?

A.

She just kept -- the waitress just kept stating she
was not going to serve us . 38

Plaintiffs also cite Cottrell McLaurin as testifying:
Q.
A.

What was Brittany saying?
Brittany was refusing to serve us because -- her
words exactly were the booth was reserved.
It was
saved for somebody else.
You can't -- I mean the
Waffle House is an open seated restaurant. There's
no reserved seating for anybody. First come, first
serve, that's how it is.
So we sat down.
And she just kept stating I'm not
serving y'all.
I'm not going to serve y'all. And
my remark was well, somebody is going to serve us.
I said that.

Q.

And what did she say?

A.

Her words
y' all. 39

The

court

were

concludes

always
that

I'm

while

not

going

plaintiffs

to
have

serve
presented

evidence from which a reasonable fact-finder could conclude that
Waffle House's proffered reason for Brittany Campbell's failure to
serve them may have constituted a violation of Waffle House's open
seating policy,
could

not

sit

evidence that Brittany Campbell
at

their

chosen

table

because

it

told them they
was

saved or

38

Id. (citing Cottrell McLaurin Deposition Vol. 1, Exhibit B
to Defendant's MSJ, Docket Entry No. 51-2, pp. 44:2-45:11).
39

Id. (citing Cottrell McLaurin Deposition Vol. 1, Exhibit B
to Defendant's MSJ, Docket Entry No. 51-2, p. 51:10-23).
-23-

reserved for someone else, Brittany Campbell's refusal to serve the
plaintiffs

in response

to their refusal

to move,

and Brittany

Campbell's alleged reference to the plaintiffs as "you people, " 40
does not constitute evidence from which a reasonable fact-finder
could conclude either that Brittany Campbell's stated reason for
her conduct was not true or that Brittany Campbell's actions were
more likely than not motivated by discriminatory animus for the
"Plaintiffs have done little more than cite to

plaintiffs' race.

their mistreatment and ask the court to conclude that it must have
been related to their race.

This is not sufficient."

Denny's, Inc., 270 F.3d 94, 104

(2d Cir. 2001)

Sam's Club, 145 F.3d 114, 120 (2d Cir. 1998)
law "does not make
wicked things;

[defendants]

Lizardo v.

(citing Norton v.

(anti-discrimination

liable for doing stupid or even

it makes them liable for discriminating")) .

See

also Feacher v. Intercontinental Hotels Group, 563 F. Supp. 2d 389,
404

(N.D.N.Y.

F.3d

435,

2008)

456

(2d

(quoting Bickerstaff v.
Cir.

1999)

Vassar College,

("Plaintiffs'

'feelings

196
and

perceptions of being discriminated against are not evidence of
discrimination.'")).

Accordingly,

the court concludes that the

plaintiffs have failed to present evidence capable of raising a

40

Although plaintiffs alleged and contended in their briefing
that Brittany Campbell told them they could only sit on one side of
the restaurant, none of the deposition excerpts cited in support of
this allegation and contention attributed to Brittany Campbell
contain any statements about where in the restaurant she wanted the
plaintiffs to sit.
-24-

genuine issue of material fact for trial on their Title II claim of
discrimination in public accommodation.
(b)

Plaintiffs Have Failed to Cite Evidence Capable of
Establishing That Injunctive Relief Is Warranted

Plaintiffs allege based on information and belief that Waffle
House has engaged in a pattern and practice of refusing to provide
equal service to African Americans with the purpose of discouraging
African Americans from patronizing the restaurant, and that unless
permanently enjoined from the alleged conduct Waffle House will
continue to discriminate against plaintiffs and other members of
plaintiff's race. 41
Asserting that Plaintiffs have advanced their claims of race
discrimination exclusively under Title II of the Civil Rights Act
of 1964 (42 U.S.C.

2000a), and that the plaintiffs' only possible

§

remedy for their Title II claims is an injunction plus attorneys'
fees, Waffle House argues that it is entitled to summary judgment
on these claims because plaintiffs have failed to cite any evidence
capable of establishing that an injunction is warranted. 42
City of Los Angeles v. Lyons,

103 S.

Ct.

1660

(1983),

argues that "[i]n order to claim injunctive relief,

Citing

defendant

a plaintiff

must show a real or immediate threat that the plaintiff will be
wronged

41

again

Plaintiffs'
pp. 3-4 ~~ 11-12.
42

a

likelihood

of

substantial

Third Amended Complaint,

and

Docket Entry No.

Defendant's MSJ, Docket Entry No. 51, pp. 12-13.
-25-

immediate

16,

irreparable

injury.

Plaintiffs

have

not

shown

any

real

or

immediate threat that they will be harmed again. " 43
In

Lyons

the

Supreme

Court

stated

that

the

plaintiff's

"standing to seek the injunction requested depended on whether he
was likely to suffer future injury [from the challenged action]".
Id. at 1667.
(5th Cir.),

See also Arguello v. Conoco, Inc., 330 F.3d 355, 361
cert.

denied,

124

S.

Ct.

567

(2003)

("a

litigant

seeking injunctive relief must demonstrate 'that [he is] likely to
suffer future injury by the defendant and that the sought-after
relief will prevent that future injury'")

(citations omitted).

Plaintiffs respond that
Waffle House asserts that there is no evidence that the
requested declaratory relief is necessary as Plaintiffs
have not shown that they may be subject to the same
treatment.
However, the same persons who accosted
Plaintiffs still frequent that specific Waffle House
restaurant (See Exhibit D 81:9-10) and there is nothing
in place to prevent the same treatment again, especially
since Waffle House has determined that there was nothing
wrong or improper with the actions of Brittany Campbell
and blamed the incident on the Plaintiffs. 44
Plaintiffs'

Exhibit

D is

the

deposition

of

Robert

Haynes

who

testified at the cited location:
Q.

Okay.

A.

But you said that you had been back.

Yes. 45

43

Id. at 12.

44

Plaintiffs' Response, Docket Entry No. 54, p. 4.

45

Robert Haynes Deposition, Exhibit
Docket Entry No. 51-4, p. 81:9-10.
-26-

D to

Defendant's

MSJ,

Plaintiffs' reliance on testimony from Robert Haynes that he
has

been back

to

the Waffle

House

since

the

events

at

issue

transpired does not constitute evidence from which a reasonable
fact-finder could conclude that an injunction is warranted because
Robert

Haynes

was

merely

a

patron

at

the

restaurant,

not

a

defendant in this action or a defendant's employee who's conduct
Because plaintiffs have neither argued nor

could be enjoined.

presented any evidence capable of showing either that they are
likely to

suffer future

injury by the defendant,

or that

the

sought-after relief will prevent that future injury, defendant is
entitled to summary judgment on its Title II claims.

Accordingly,

even if the court has incorrectly concluded that plaintiffs have
failed to raise a genuine issue of material fact for trial as to
whether

Brittany

Campbell's

actions

discriminatory animus for plaintiffs'

were

race,

motivated

by

the court concludes

that Waffle House is entitled to judgment as a matter of law on
plaintiffs'

Title

II

claims because plaintiffs have

failed

to

present evidence capable of supporting issuance of an injunction,
the only relief available for Title II claims.
B.

False Imprisonment

Plaintiffs'
allegations

that

claims
they

for
"were

false

imprisonment

cornered

by

are

Brittany

based

on

Campbell

accompanied by Defendant Bandidos Motorcycle Club in the Defendant

-27-

Waffle House,

Inc. parking lot.

Plaintiffs suffered damages for

which Plaintiffs herein sue." 46
Waffle House argues that it is entitled to summary judgment on
plaintiffs' claims for false imprisonment because no Waffle House
employee willfully detained the plaintiffs, and because any such
detention conducted by a Waffle House employee would have been
outside the scope of their employment. 47

Citing the deposition

testimony of plaintiffs Sharon Smith McLaurin and Toni Lewis Kelly,
defendant also argues that it is entitled to summary judgment on
the false

imprisonment claims because both of these plaintiffs

testified that they were free to step away from the conversation in
the parking lot, and that no Waffle House employee detained them. 48
1.

Applicable Law

"False imprisonment in Texas is the direct restraint by one
person of the physical liberty of another, without adequate legal
justification."

Reicheneder v. Skaggs Drug Center, 421 F.2d 307,

310 (5th Cir. 1970).
[under Texas law] are:

"The essential elements of false imprisonment
(1) willful detention; (2) without consent;

and (3} without authority of law."

46

Plaintiffs'
p. 5 ~ 16.
47

48

Randall's Food Markets, Inc. v.

Third Amended Complaint,

Docket Entry No.

16,

Defendant's MSJ, Docket Entry No. 51, pp. 15-16.

Id.
Exhibit A
and Kelly
No. 51-3,

at 13-14 (citing Sharon Smith McLaurin Deposition Vol. 1,
to Defendant's MSJ, Docket Entry No. 51-1, p. 89:9-16,
Deposition, Exhibit C to Defendant's MSJ, Docket Entry
pp. 60:25-61:1).
-28-

Johnson, 891 S.W.2d 640, 644 (Tex. 1995)
Co. v. Castillo,

693 S.W.2d 374, 375

(quoting Sears, Roebuck &

(Tex. 1985)).

"A detention

may be accomplished by violence, by threats, or by any other means
that restrains a person from moving from one place to another."
Id. at 645.

"Where it is alleged that a detention is effected by

a threat, the plaintiff must demonstrate that the threat was such
as would inspire in the threatened person a just fear of injury to
her

person,

reputation,

or

property."

Id.

"In

Texas

liability for false imprisonment extends beyond those who willfully
participate in detaining the complaining party to those who request
or direct the detention."
S.W.3d 502, 507 (Tex. 2002)
1063 (Tex. 1898)).

Wal-Mart Stores, Inc. v. Rodriguez, 92
(citing Joske v. Irvine, 44 S.W. 1059,

To allege and prove instigation, "a plaintiff

must show that the defendant clearly directed or requested the
[detention] . ,,
2.

Id.

Application of the Law to the Undisputed Facts

In response to Waffle House,s motion for summary judgment,
plaintiffs argue that
Waffle House by and through its employee Brittany
Campbell and in collusion with the motorcycle club
members followed Plaintiffs out of the restaurant (See
Exhibits D 69:14-20; E 52:21-24) , surrounded and detained
Plaintiffs in a hostile manner all wearing motorcycle
vests (See Exhibits D 26:2-4; E 24:7-14) -some of which
were Bandidos, vests (See Exhibit D 52:11-14; E 54:7-8),
spoke and yelled in a threatening manner (See Exhibit D
39:8-12), and exposed their weapons, namely knives (See
Exhibit C 4 7: 13-15) , in a manner which inspired in
Plaintiffs a just fear of injury.
Considering that the
-29-

male motorcycle members exposed knives and all of the
circumstances which had previously occurred inside the
restaurant and the reputation for the propensity of
violence of motorcycle clubs, Plaintiffs were justifiably
in fear of injury to their persons. 49
In the deposition excerpts cited in plaintiffs' initial response to
Defendant's MSJ, Robert and Mandi Haynes testified that they were
both wearing vests with the Fire and Iron motorcycle club insignia,
the Bandido with them was wearing a vest with the Bandido insignia,
when they saw James Campbell follow the plaintiffs out of

the

restaurant, they and other members of their party got up and went
outside,

too,

and

once

outside

they

heard

one

of

plaintiffs screaming and yelling at James Campbell. 50
also

cite

testimony

of

Toni

Lewis

Kelly

that

the

female

Plaintiffs
one

of

the

motorcyclists pulled his vest jacket back to show the plaintiffs
that he was "packing" a knife. 51
In a supplemental response to Defendant's MSJ, plaintiffs
further argue that they were falsely imprisoned.
(See
Defendant's Exhibit A: lines 1-5, 17, page 78; lines 610, page 84; and lines 22-25, page 88; Defendant's
Exhibit B: lines 20-22, page 50; lines 16-19, page 66;
lines 21-24, page 67; lines 15-17, 24, 25 page 72;
lines 1-6, 13-18, page 73; lines 13-15, page 74; and

49

Plaintiffs' Response, Docket Entry No. 54, pp. 4-5.

50

See Robert Haynes Deposition, Exhibit D to Defendant's MSJ,
Docket Entry No. 51-4, pp. 26:2-21, 39:8-12, 52:11-14, 54:7-8,
69:14-20; Mandi Haynes Deposition, Exhibit 4 to Plaintiffs'
Response, Docket Entry No. 55-4, pp. 24:7-14, 52:21-24, 54:7-8.
51

See Kelly Deposition, Exhibit C to Defendant's MSJ, Docket
Entry No. 51-3, p. 47:13-15.
-30-

lines 14, 15, page 77i
lines 1-5, page 82) . 52
In

the

deposition

excerpts

and
cited

Plaintiff's
in

Exhibit

Plaintiffs'

C:

Supplemental

Response to Defendant's MSJ, Sharon Smith McLaurin testifies that
one

member

restaurant,
outside. 53

of

the

motorcycle

group

followed

them

out

of

the

and then other members of the motorcycle group came
Cottrell McLaurin also testified that members of the

motorcycle group followed the plaintiffs out of the restaurant and
"almost circled us so we couldn't get to the car," 54 the motorcycle
group stopped to talk to the plaintiffs and the plaintiffs stopped
to talk to them,

55

and the plaintiffs were not arguing with the

motorcycle group, but that one of the motorcycle group members kept
telling them that

they should not have been disrespecting the

waitress. 56
Missing from plaintiffs'
which

a

reasonable

52

Plaintiffs'
pp. 10-11.

presentation is any evidence from

fact-finder

Supplemental

could

Response,

conclude

Docket

that

Entry

anyone

No.

58,

53

Sharon Smith McLaurin Deposition Vol. 1, Exhibit A to
Defendant's MSJ, Docket Entry No. 51-1, pp. 78:1-5, 84:6-10, 88:2225.
54

Cottrell McLaurin Deposition Vol.
MSJ, Docket Entry No. 51-2, p. 50:22.
73:15 ("There was a half circle.").
55

Exhibit B to Defendant's
See also id. at 66:16-19i

1,

Id. at 72:18-20 {"Q. Well, they stopped to talk to you and
you stopped to respond? A. Yes. We did.").
56

Id. at 74:1.
-31-

restrained the physical liberty of any of the plaintiffs by threat
or

otherwise,

or

that

any

Waffle

House

employee

directed

or

requested anyone to restrain plaintiff's physical liberty by threat
or otherwise.

Indeed, as defendant contends and plaintiffs admit,

the plaintiffs were not detained by anyone but,

instead, were at

all times free to get in their car and leave.

Plaintiff Sharon

Smith McLaurin testified in her deposition:
Q.

. So nothing [was] keeping you from getting in
the car?

A.

Other than stepping away from the conversation.

Q.

So you could step - and you eventually did step
away from the conversation after the conversation
had run its course?

A.

Yes, sir.

Q.

And you left, correct?

A.

Yes, sir. 57

Plaintiff Toni Lewis Kelly testified in her deposition:
Q.

[D]id anybody from Waffle House prevent you
from leaving?

A.

No. 58

The summary judgment evidence establishes that once outside in
the restaurant's parking lot, the plaintiffs voluntarily engaged in
conversation

with

members

of

the

motorcycle

group

until

the

57

Defendant' s MSJ, Docket Entry No. 51, pp. 13-14 (quoting
Sharon Smith McLaurin Deposition Vol. 1, Exhibit A to Defendant's
MSJ, Docket Entry No. 51-1: 89:9-16).
58

Id. at 14 (quoting Kelly Deposition, Exhibit C to Defendant's
MSJ, Docket Entry No. 51-3, p. 60:25-61:2)
-32-

conversation ran its course, and the plaintiffs then got in their
car and left.
remain

on

When a person voluntarily complies with a request to

the

premises,

and

despite

that

request

exercise their will to go whenever they please,

able

to

that person is

neither physically restrained nor falsely imprisoned.
891 S.W.2d at 644-45.

is

See Johnson,

See also Martinez v. Goodyear Tire & Rubber

Co., 651 S.W.2d 18 (Tex. App.- San Antonio 1983, no writ)

(finding

no false imprisonment where plaintiff voluntarily complied with a
request to remain on premises) .

Because plaintiffs have failed to

cite any evidence capable of establishing that anyone restrained
them

from

otherwise,

leaving
the

the

court

restaurant's
concludes

that

parking

lot

defendant

is

by

threat

or

entitled

to

summary judgment on their false imprisonment claims.
C.

Assault and Battery

Plaintiffs allege that
Waffle House, Inc., by and through its employee Brittany
Campbell in collusion with Defendant Bandidos Motorcycle
Club intentionally, knowingly, or recklessly made contact
with Plaintiffs' persons or threatened Plaintiffs with
imminent bodily injury which caused injury to Plaintiffs.
Brittany Campbell along with several members of the
Defendant Bandidos Motorcycle Club approached, cornered,
and threatened Plaintiffs with a knife on the Defendant
Waffle House Inc.'s property, to wit, the parking lot,
after Plaintiffs exited the Defendant Waffle House,
Inc.'s restaurant. Plaintiffs suffered damages for which
Plaintiffs herein sue. 59

59

Plaintiffs'
p. 6 ~ 22.

Third Amended Complaint,
-33-

Docket Entry No.

16,

Waffle House argues that it is entitled to summary judgment on
plaintiffs' claims for assault and battery because plaintiffs have
conceded that no Waffle House employee, representative, or customer
touched

them,

and because

plaintiffs

have

failed

to

cite

any

evidence from which a reasonable fact-finder could conclude that
any Waffle house employee, representative, or customer threatened
them with imminent bodily harm, or instigated such a threat. 60
1.

Applicable Law

The Texas Supreme Court has stated that
[t] he tort of battery is when a person "(a)
. acts
intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such a contact, and (b) a harmful contact
with the person of the other directly or indirectly
results."
Texas Department of Public Safety v. Cox Texas Newspapers, L.P.,
343 S.W.3d 112, 126-27 (Tex. 2011)

(quoting Restatement (Second) of

Torts§ 13 (1965); and Baily v. C.S., 12 S.W.3d 159, 162 (Tex. App.
-

Dallas

2000,

no

pet.)

("A

person

commits

a

battery

if

he

intentionally or knowingly causes physical contact with another
when he knows or should reasonably believe the other person will
regard the contact as offensive or provocative.")).
In Texas

the

criminal assault.

intentional

is

identical

to

See Villafranca v. United States, 587 F.3d 257,

260-61 (5th Cir. 2009)

60

tort of assault

(citing Hall v. Sonic Drive-In of Angleton,

Defendant's MSJ, Docket Entry No. 51, pp. 20-24.
-34-

Inc., 177 S.W.3d 636, 649 (Tex. App. -Houston [1st Dist.]
pet denied)

2005,

("The elements of assault are the same in both the

criminal and the civil context[s] .")).

Texas Penal Code§ 2201(a)

provides, in pertinent part, that a person commits criminal assault
if he:
(1)

intentionally, knowingly,
bodily injury to another .

(2)

intentionally or knowingly threatens another with
imminent bodily injury.
.; or

(3)

intentionally or knowingly causes physical contact
with another when the person knows or should
reasonably believe that the other will regard the
contact as offensive or provocative.

To raise a
claims

fact

issue for

plaintiffs

must

or

recklessly

causes

trial on their assault and battery

therefore

present

evidence

capable

of

establishing either (1) that defendant intentionally, knowingly, or
recklessly caused plaintiffs bodily injury;

( 2)

intentionally,

knowingly, or recklessly threatened plaintiffs with imminent bodily
injury;

or

( 3)

intentionally,

knowingly,

or

recklessly

caused

physical contact with plaintiffs that defendant knew or should
reasonably have believed that plaintiffs would regard as offensive
or provocative.

Hall,

177 S.W.3d at 649-50.

assists another in making an assault,

both are principals and

liable in damages for any injury inflicted."
No.

14-96-01522-CV,

[14th Dist.]

July

1999 WL 496505,
15,

1999,

no

at *6

pet.)

Where "one person

Milliken v. Skepnek,
(Tex.

("Anyone

App. who

Houston

commands,

directs, advises, encourages, procures, controls, aids, or abets a
-35-

wrongful act by another,

is just as responsible for the wrongful

act as the one who actually committed it.").
2.

Application of the Law to the Undisputed Facts

Plaintiffs respond to Defendant's MSJ on their claims

for

assault and battery by arguing that
[t] he claim of assault by threat of imminent bodily
injury arises from the negative exchange with Waffle
House employee Brittany Campbell and the motorcycle club
members outside of the restaurant (See Exhibit C 4 6: 6-13)
and the fact that the men while confronting [p]laintiffs
showed [p]laintiffs that they were carrying knives (See
Exhibit E 53:15-22, 25; 54:1-6) by moving their vests to
reveal the weapons.
Plaintiffs feared that injury was
imminent (See Exhibit c 57: 3-4) . 61
Citing excerpts from their own depositions, plaintiffs argue that
an assault occurred based on the evidence in the record.
(See Defendant's Exhibit A: lines 4, 5, 12-15, page 80;
lines 11-14, page 91; lines 17, 18, page 99; and lines 48, page 101; Defendant's Exhibit B: lines 22-24, page 66;
lines 14-18, page 68; lines 16-20, page 69; lines 19-21,
page 70; Defendant's Exhibit F: lines 8-25, page 11; and
lines 1-7, page 13; and Plaintiff's Exhibit C: lines 1214, 18-25 page 47; lines 1-9, page 48; lines 21-25,
page 56; lines 1-4, page 57; lines 17-21, page 58; and
lines 16-18, page 76) . 62
(a)
In

the

The Plaintiffs Have Failed to Raise Fact Issues as
to Their Assault Claims
deposition

excerpts

cited

in

plaintiffs'

initial

response to Defendant's MSJ, Sharon Smith McLaurin testified that
after the motorcycle riders followed them out into the parking lot,

61

Plaintiffs' Response, Docket Entry No. 54, pp. 6-7.

62

Plaintiffs'

Supplemental

Response,

p. 10.

-36-

Docket

Entry

No.

58,

one of the motorcycle riders pulled back his vest to show them that
he had a knife:
Q.

Did you see the knife?

A.

Yes, sir.

Q.

Where was the knife?

A.

On his side.

Q.

On his side?

A.

Yes, sir.

Q.

Was he holding it in his hand?

A.

No, sir.

Q.

Where was it?

A.

In a holster.

Q.

In a holster?

A.

Yes, sir.

Q.

So it was in a holster that appeared to be somehow
attached to his waist of his pants somehow?

A.

Yes, sir. 63

Cottrell McLaurin also testified that after the motorcycle
riders

followed

them

out

into

the

parking

lot,

one

of

the

motorcycle riders pulled back his vest to show them that he had a
knife:
Q.

There,s how many of them?

A.

About six or eight of them.
And I noticed, like I
said, one of the guys just kept brandishing his

63

Sharon Smith McLaurin Deposition Vol. 1, Exhibit
Defendant,s MSJ, Docket Entry No. 51-1, p. 80:22-81:11.
-37-

A

to

little knife, trying -- he didn't pull it out of
his holster, he just kept showing it, showing it.
Q.

In what way was he showing it?

A.

He put --

Q.

Why don't you stand up and show us how that

A.

He had his motorcycle vest on.
So whatever he was
doing, he would just do it like that, cover it back
up, do it like that, cover it back up, trying to
intimidate somebody? 64

Cottrell McLaurin also testified that there were no heated words
between the plaintiffs and the motorcycle riders:
Q.

Let's talk about the seven to eight minute period
where you were outside. And so there was -- would
it be fair to say that there were some heated words
exchanged back and forth?

A.

No.
It wasn't any heated
motorcycle gang and ourselves.

Q.

So what was discussed for seven to eight minutes?

A.

They felt like we shouldn't have been sitting in
that booth. They felt like we had disrespected the
waitress, which we didn't, because nobody did
anything to disrespect her to that effect.
The
only people that were disrespected was us.
The
harass was us . 65

words

between

the

64

Cot trell McLaurin Deposition Vol. 1, Exhibit B to Defendant's
MSJ, Docket Entry No. 51-2, pp. 66: 20-67:6.
See also Cottrell
McLaurin Deposition Vol. 2, Exhibit F to Defendant's MSJ, Docket
Entry No. 51-6, pp. 11:8-13:7.
65

Cottrell McLaurin Deposition Vol. 1, Exhibit B to Defendant's
MSJ, Docket Entry No. 51-2, pp. 68:19-69:6.
See also id. at 70:
19-25 (".
. we was talking, the gang was talking to us.
Y'all
shouldn't have been in there.
Y'all shouldn't have been
disrespecting her like that.
Come to find out we didn't know one
of the members was her dad.
Didn't know that at all.
So he felt
like somebody was mistreating his daughter, which in essence we
wasn't .
. ").
-38-

Toni Lewis Kelly also testified that one of the motorcycle
riders pulled back his vest to show the plaintiffs that he was
"packing" a knife,

66

that another one of the motorcycle riders was

"just standing out there," 67 that showing the knife was "a threat
. life." 68

to

Toni Lewis Kelly testified that the knife was

at all times in its sheath:
Q.

And did he ever pull out the knife from his --

A.

No.
He just pulled his jacket back to show us
where he had the -- the knife in the holster.

Q.

It was in a holster?

A.

It was
you know,
in his belt. 69

The

Plaintiffs

argue

Was it on his belt?
it was -- yeah,

that

an assault

Campbell revealed that he had a knife.

it was on his

occurred when James

Because the knife was at

all times in a holster on James Campbell's belt, and there is no
evidence regarding the size or sharpness of the knife's blade, or
the

physical

proximity

of

James

Campbell

to

the

plaintiffs,

plaintiffs have failed to cite any evidence from which a reasonable
fact-finder could conclude that seeing a holstered knife caused

66

Kelly Deposition, Exhibit C to Defendant's MSJ, Docket Entry
No. 51-3, p. 47:14.
67

Id. at 47:25.

68

Id. at 47:25-48:1. See also id.
when we showed the knife, you know,
life. I'm -- you know, I just want to
point, you know. So we got in the car
car and we're, like, trying to get of
69

Id. at 76:16-21.
-39-

at 57:3-7 ("[A]t that point
it was basic a fear for my
get away from there at this
and we get everybody in the
there.").

them to suffer threat of imminent bodily injury.
of Texas,

864 S.W.2d 687,

1993, pet. ref'd)
Crim. App. 1983)

691

(Tex. App. -Houston

(en bane)

capacity

Plaintiffs'

to

(where there is no actual injury alleged

cause

contention

Cottrell McLaurin's

a showing must be made of the

death

that

they

testimony that

or

serious

were

groups were talking.
was

worn

by

bodily

assaulted

there

were

between the plaintiffs and the motorcyclists,

saw

[14th Dist.]

(citing Blain v. State, 647 S.W.2d 293, 294 (Tex.

to have been caused by a knife,
knife's

See Soto v. State

is

no

injury)).
belied

by

heated words

and that the two

Moreover, since the only knife the plaintiffs

one

James

Campbell,

not

by

an

employee

or

representative of the Waffle House, plaintiffs have failed to cite
any evidence from which a reasonable fact-finder could conclude
that

any threat

they experienced is

attributable

to defendant

Waffle House.
The theory of plaintiffs' assault claim against Waffle House
is that Brittany Campbell, the waitress who refused to serve them,
instigated an assault by assisting and encouraging the tortfeasors
-- namely her father and his motorcycle friends -- to follow the
plaintiffs

outside

into

the

parking

lot

assaulting and falsely imprisoning them. 70

70

for

the

purpose

of

But plaintiffs only

Plaintiffs' Supplemental Response, Docket Entry No. 58, p. 11
("[I]t is Plaintiffs' contention considering all of the evidence
before, during, and after the offenses that Brittany Campbell
assisted and encouraged the tortfeasors, namely her father and his
friends (the motorcycle club/gang in the adjacent booth) in the
assault and false imprisonment of Plaintiffs.").
-40-

speculate that Brittany Campbell
friends to follow them outside.
"we just assumed that she

instigated her father and his

Toni Lewis Kelly acknowledged that

[i.e.,

Brittany Campbell]

had to have

told them something to kind of pump their heads up to make them
feel the way they were feeling when they walked outside." 71
Because plaintiffs have failed to present any evidence from
which a reasonable fact-finder could conclude that an employee,
representative,

or

customer

of

defendant

Waffle

House

intentionally, knowingly, or recklessly threatened plaintiffs with
imminent bodily injury,
Campbell

or that Waffle House employee Brittany

instigated an assault

upon

the plaintiffs,

the

court

concludes that defendant is entitled to summary judgment on the
plaintiffs' assault claims.
(b)

The Plaintiffs Have Failed to Raise Fact Issues as
to Their Battery Claims

Plaintiffs

testified

that

no

Waffle

representative, or customer touched them.

House

employee,

Plaintiff Sharon Smith

McLaurin testified:
Q.

Did Brittany ever physically touch you or anyone in
your party?

A.

No, sir.

Q.

What about any Waffle House employee?

A.

No, sir.

Q.

Never touched you or anyone in your party?

71

Kelly Deposition, Exhibit C to Defendant's MSJ, Docket Entry
No. 51-3, p. 56:14-16.
-41-

A.

No, sir.

Q.

Bandidos?

A.

No, sir.

Q.

Anyone in your party?

A.

No, sir. 72

Did they ever touch you?

Plaintiff Toni Lewis Kelly similarly testified:
Q.

Okay.
And did anybody
physically touch you?

from

A.

No.

Q.

Did anybody in the Bandidos
people ever touch you?

A.

No.

Waffle

or

the

House

ever

motorcycle

73

Accordingly, plaintiffs are unable to establish battery as a matter
of law,

and defendant is entitled to summary judgment on their

claims for battery.
S.W.2d

627,

629

See Fisher v. Carrousel Motor Hotel, Inc., 424
(Tex.

1967)

(battery

requires

an

offensive

touching); Price v. Short, 931 S.W.2d 677, 687 (Tex. App. -Dallas
1996, no pet.)

D.

("Battery requires only an offensive touching.").

Intentional Infliction of Emotional Distress
Plaintiffs allege that
Waffle House, Inc., by and through its employee Brittany
Campbell
intentionally or recklessly insulted and
embarrassed Plaintiffs by her speech and actions in front
of other patrons and Defendant Bandidos Motorcycle Club.
72

Sharon Smith McLaurin Deposition Vol. 1, Exhibit
Defendant's MSJ, Docket Entry No. 51-1, pp. 90:25-91:10.
73

A

to

Kelly Deposition, Exhibit C to Defendant's MSJ, Docket Entry
No. 51-3, pp. 76:22-77:2.
-42-

Defendant Waffle House, Inc.'s conduct was extreme and
outrageous and proximately caused Plaintiffs severe
emotional distress.
Plaintiffs suffered damages for
which Plaintiffs herein sue. 74
Waffle House argues that it is entitled to summary judgment on
plaintiffs' claims for intentional infliction of emotional distress
because

no

Waffle

House

employee

subjected

conduct that was extreme and outrageous,

the

plaintiffs

to

and because plaintiffs

have failed to offer evidence that any of the plaintiffs suffered
severe distress as a result of a Waffle House employee's conduct. 75
1.

Applicable Law

To prevail on a claim for intentional infliction of emotional
distress, Texas law requires plaintiffs to establish that (1) the
defendant acted intentionally or recklessly;
conduct was extreme or outrageous;

(3)

and

distress suffered by the plaintiff was severe.
Co.,

885

F.2d

300,

306

(5th

the defendant's

the defendant's actions

caused the plaintiff emotional distress;

Credit

(2)

Cir.

(4)

the emotional

Dean v. Ford Motor
1989).

Conduct

is

considered to be extreme and outrageous if it surpasses "all bounds
of decency" such that it is "utterly intolerable in a civilized
community."
605,

611

Id.
(Tex.

See also GTE Southwest, Inc. v. Bruce, 998 S.W.2d
1999) .

"Mere

insults,

indignities,

threats,

annoyances, petty oppressions, or other trivialities do not rise to

74

p. 5

~
75

Plaintiffs'
18.

Third Amended Complaint,

Docket Entry No.

Defendant's MSJ, Docket Entry No. 51, pp. 16-20.
-43-

16,

the level of extreme and outrageous conduct."
Mutual Insurance Cos.
(citing Bruce,

998

v.

Sears,

S.W.2d at

Texas Farm Bureau

84 S.W.3d 604,

612).

The

610

fact

(Tex.

that

2002)

conduct

is

intentional, malicious, or even criminal does not, standing alone,
mean it is extreme and outrageous conduct.
997 S.W.2d 212, 215 (Tex. 1999).

Brewerton v. Dalrymple,

Whether a defendant's conduct may

reasonably be regarded as extreme and outrageous is a decision for
the court.

McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th

Cir. 1993)

(citing Warnick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.

1993)).
determine

"Only if reasonable minds may differ does the fact finder
whether,

sufficiently

extreme

in
and

a

particular
outrageous

case,
to

the

result

conduct

in

was

liability."

Behringer v. Behringer, 884 S.W.2d 839, 843 (Tex. App. 1994, writ
denied) .
reactions

"Emotional distress includes all highly unpleasant mental
such as embarrassment,

humiliation, and worry."
2.

fright,

horror,

grief,

shame,

Bruce, 998 S.W.2d at 618.

Application of the Law to the Undisputed Facts

In response to Waffle House's motion for summary judgment,
plaintiffs argue that
[t]he motion makes it apparent that Waffle House is not
of the opinion that Brittany Campbell's conduct i.e.,
refusing service,
taunting,
colluding with violent
persons (See Exhibit D 59:22-23, 25; and 60:1, 10-13),
false
imprisoning,
and confronting and assaulting
Plaintiffs
is
extreme
and outrageous
behavior
76
Plaintiffs have the opposite opinion.

76

Plaintiffs' Response, Docket Entry No. 54, p. 6.
-44-

Exhibit D cited by plaintiffs is the testimony of Robert Haynes
explaining

the

difference

between

the

motorcycle

club

for

firefighters to which he belonged, and other motorcycle clubs such
as

the

Bandidos

whose

members

were

"not

always

nice

guys." 77

Plaintiffs also argue that
[l]ooking at Brittany Campbell's actions as a whole over
the course of Plaintiffs' time at the Waffle House, one
can see that her behavior went beyond mere insulting
behavior.
She started out with rude behavior but her
behavior escalated to a point where Plaintiffs were
as saul ted in the parking lot and fearing for their
lives-that course of conduct is tantamount to extreme and
outrageous conduct. 78
Plaintiffs' intentional infliction of emotional distress claim
is based on the theory that Brittany Campbell treated them rudely
inside the

restaurant,

and then instigated her father and his

friends to follow them outside the restaurant into the parking lot
for the purpose of assaulting and falsely imprisoning them. 79

Rude

behavior, insults, and annoyances cannot as a matter of law rise to
the level of extreme and outrageous conduct, Bruce, 998 S.W.2d at
612.

And for the reasons stated in§ IV.B-C, above, the court has

already concluded that plaintiffs have failed to cite any evidence

77

Robert Haynes Deposition, Exhibit D to Defendant's MSJ,
Docket No. 51-4, pp. 59:25-60:1. See also id. at 60:10-13 (stating
that Bandidos can be a problem) .
78

Plaintiffs' Supplemental Response, Docket Entry No. 58, p. 12.

79

Id. at 11 ("[I] t is Plaintiffs' contention considering all
of the evidence before, during, and after the offenses that
Brittany Campbell assisted and encouraged the tortfeasors, namely
her father and his friends (the motorcycle club/gang in the
adjacent booth)
in the assault and false
imprisonment of
Plaintiffs.").
-45-

from which a reasonable fact-finder could conclude that they were
falsely

imprisoned,

Campbell

instigated

assaulted,

or

her

and

father

battered,
his

plaintiffs outside to falsely imprison,
The

court

therefore

concludes

that

or

friends

that
to

Brittany

follow

the

assault, or batter them.

plaintiffs

have

failed

to

present evidence from which a reasonable fact-finder could conclude
that Brittany Campbell subjected the plaintiffs to conduct that was
extreme and outrageous.
Plaintiffs have also failed to cite evidence from which a
reasonable

fact-finder

could

conclude

that

any

distress

they

suffered as a result of Brittany Campbell's conduct was severe.
One of the plaintiffs,

Cottrell McLaurin,

expressly denies any

symptoms associated with Posttraumatic stress disorder related to
the Waffle House

events. 80

Although

the other plaintiffs have

offered testimony that they suffered embarrassment and humiliation
the night of the events at issue, and that they have since suffered
from depression or anxiety, they have not offered any evidence of
the severity of their embarrassment, humiliation,
anxiety.

Moreover,

depression,

or

the plaintiffs did not seek medical care for

emotional distress until after commencement of this suit, over two
years after the events at issue transpired. 81

8

°Cottrell McLaurin Deposition Vol. 1 Exhibit B to Defendant Is
MSJ, Docket Entry No. 51-2, pp. 51:11-12, 51:22-23, 59:7, 64:15-19,
86:11-12, and Cottrell McLaurin Deposition Vol. 2, Exhibit F to
Defendant's MSJ, Docket Entry No. 51-6, p. 14:1-3.
I

81

See Sharon Smith McLaurin Deposition Vol. 2, Exhibit E to
Defendant's MSJ, Docket Entry No. 51-5, p. 7:15-21 ("Q. And at the
(continued ... )
-46-

Because plaintiffs have failed to present evidence from which
a reasonable fact-finder could conclude that Brittany Campbell's
conduct was extreme and outrageous, or any emotional distress they
suffered was severe, defendant Waffle House is entitled to summary
judgment

on

plaintiffs'

claims

for

intentional

infliction

of

emotional distress.
E.

Negligent Hiring, Supervision, Training, and Retention

Plaintiffs allege that
Waffle House, Inc., did not properly screen, evaluate,
investigate, or take any reasonable steps to determine
whether Brittany Campbell was unfit, incompetent, or a
danger to third parties. Defendant, Waffle House, Inc.,
knew or should have known that Brittany Campbell was
unfit and could foresee that Brittany Campbell would come
in contact with Plaintiffs, creating a risk of danger to
Plaintiffs. Defendant, Waffle House, Inc.'s failure to
exercise reasonable care in the hiring, supervision,
training and retention of Brittany Campbell was the
proximate cause of damages to Plaintiffs for which
Plaintiffs hereby sue. 82

81

continued)
time
you hadn't
seen any professionals,
psychologist
psychologists,
psychiatrists,
or
any
other
mental
health
professionals as of December, 2 014, correct?
A. Correct.") ;
Cottrell McLaurin Deposition Vol. 2, Exhibit F to Defendant's MSJ,
Docket Entry No. 51-6, p. 9:14-16 ("Have you seen any other
psychologists or mental health professionals? A. Well, my attorney
recommended."); Kelly Deposition, Exhibit C to Defendant's MSJ,
Docket Entry No. 55-3, p. 71:2-10 ("Q. Did you see any medical
providers, any psychiatrists, psychologists for your sleeplessness?
A. No, I didn't.
Q. Did you see any medical providers for your
crying, the crying or anxiety that you felt?
A. No, I didn't.
Q. Did you talk to any counselors, anybody because of -- to -- to
help you deal with your anxiety? A. No.").
82

p. 6

~

( •••

Plaintiffs'
20.

Third Amended Complaint,
-47-

Docket Entry No.

16,

Waffle House argues that it is entitled to summary judgment on
plaintiffs' claims for negligent hiring, supervision, training, and
retention because plaintiffs have pleaded only a negligent hiring
cause of action, not a cause of action for negligent supervision,
training, or retention; because Waffle House cannot be held liable
for negligent hiring, supervision, training, or retention when no
Waffle House employee committed an actionable tort;

and because

plaintiffs have failed to present any evidence that the alleged
risk that caused the employment to be negligent was the same risk
that proximately caused plaintiffs' alleged injuries. 83
1.

Applicable Law

To establish negligence,
( 1)

another party owed

it

a party must produce evidence that
a

legal

duty,

( 2)

the

other party

breached that duty, and (3) damages were proximately caused by that
breach.
7 7 8,

See Lee Lewis Construction,

782

public

(Tex.

to

2 oo1)

ascertain

Inc. v. Harrison,

70 S.W.3d

An employer owes a duty to the general
the

qualifications

and

competence

of

the

employees it hires, especially when the employees are engaged in
occupations that require skill or experience and that could be
hazardous to the safety of others.
S.W.3d 904,

912

Dangerfield v.

(Tex. App. -Fort Worth 2008,

context of negligent training,

Ormsby,

no pet.).

264

In the

the evidence must establish that

(1) the employer owed the plaintiff a legal duty to train competent

83

Defendant's MSJ, Docket Entry No. 51, pp. 24-26.
-48-

employees,

(2) the employer breached that duty, and (3) the breach

proximately caused the plaintiff's injury.
v. Aguilera-Sanchez, No.

04-02-00458-CV,

Wal-Mart Stores, Inc.

2003 WL 21338174, at *5

(Tex. App. -San Antonio June 11, 2003, pet. denied).

A plaintiff

must prove that a reasonably prudent employer would have provided
training beyond that which was given and that failure to do so
proximately caused his injuries.
Some

courts

have

held

Dangerfield, 264 S.W.3d at 912.

that

negligent

training

proximate cause of the plaintiff's injury unless

is

not

a

the plaintiff

presents evidence that the improperly trained employee commit ted an
actionable tort recognized under common law.

The rationale is that

an employer "is not liable for negligence, no matter how egregious,
unless

the

negligence

causes

a

Gonzales v. Willis,

995 S.W.2d 729,

1999,

overruled

no

pet.),

in

legally
739
part

compensable

(Tex. App. on

other

injury."

San Antonio
grounds

by

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex.
2004).

In addressing a negligent hiring claim, the Supreme Court

of Texas stated that

"such a claim requires that the plaintiff

suffer some damages from the foreseeable misconduct of an employee
hired pursuant to the defendant's negligent practices."
Hole,

379 S.W.3d 246,

247

(Tex.

2012).

But,

Wansey v.

in so holding,

the

court made clear that it was simply enforcing the general rule that
requires plaintiffs to establish that the defendant's negligence
proximately caused their damages.
plaintiff]

See id. at 248

("Because [the

presented no evidence of harm caused by an employee
-49-

hired pursuant to

[the defendant] 's hiring policies, we hold she

did not present legally sufficient evidence of damages proximately
caused by [the defendant] 's alleged negligence.").
Proximate cause
foreseeability.
(Tex. 2002).

requires proof of both cause

See Excel Corp. v. Apodaca,

in fact

and

81 S.W.3d 817,

820

Cause in fact further requires proof that the act or

omission was a substantial factor in causing the injury without
which the harm would not have occurred.
Greater Dallas,

Inc.,

907 S.W.2d 472,

See Doe v. Boys Clubs of
477

(Tex.

1995).

To be a

substantial factor, the act or omission must have such an effect in
producing the harm as to lead reasonable people to regard it as a
cause.

See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.

1995).

Foreseeability

anticipated,

that

or should have anticipated,

negligence created.
(Tex. 1987).

requires

the

negligent

actor

the danger his or her

El Chico Corp. v. Poole, 732 S.W.2d 306, 313

The exact injury need not be foreseen; foreseeability

is satisfied when the injury is of a general character that could
reasonably be anticipated.
2.

Harrison, 70 S.W.3d at 785.

Application of the Law to the Undisputed Facts

Plaintiffs assert that genuine issues of material fact exist
as to Waffle House's exercise of reasonable care (1) in hiring of
Brittany Campbell as she had a prior arrest and had been placed on
probation, 84

84

(2) training Brittany Campbell and other employees as

Plaintiffs' Response, Docket Entry No. 54, p. 7.
-50-

she

and other employees

failed

to

follow

proper Waffle

House

procedures, 85 (3) failing to have an appropriate supervisor on duty
to

reprimand

Campbell's

Brittany

tortious

Campbell,

conduct

by

86

and

ratifying

(4)

retaining

her. 87

Brittany

Missing

from

plaintiffs' briefing is any evidence that Brittany Campbell or any
other Waffle House employee has an arrest record, or that knowledge
of such records would have made Brittany Campbell's treatment of
plaintiffs foreseeable.

Also missing from plaintiffs' briefing is

any evidence of how Brittany Campbell and any other employees were
improperly trained,
plaintiffs.

or how their improper training injured the

Asserting that "[n]egligent supervision does not have

to be in the course and scope if there is a

separate,

legally

compensable tort, " 88 plaintiffs argue that "[t] he underlying torts
herein are assault, false imprisonment, and intentional infliction
of emotional distress." 89
duty

with

the

Plaintiffs argue that "[a] supervisor on

appropriate

authority

would

have

been

able

to

reprimand Brittany Campbell for her actions toward Plaintiffs in
accordance with established Waffle House policy and, in doing so,

85

Id.

87

Id. at 9.

88

Plaintiffs'

at 8.

Supplemental

Response,

p. 13.

-51-

Docket

Entry

No.

58,

avoid

the

ensuing

assault

and

false

imprisonment." 90

arguments have no merit because for the reasons stated in
D,

above,

House

is

These
§§

IV.B-

the court has already concluded that defendant Waffle
entitled to

summary

judgment on the

claims

that

the

plaintiffs have asserted for these intentional torts, i.e., false
imprisonment,

assault,

battery,

and

intentional

infliction

of

emotional distress.
Because plaintiffs have failed to cite evidence from which a
reasonable fact-finder could conclude that defendant Waffle House
had any negligent

hiring,

or

retention

or that Waffle House's hiring,

practices or policies,

training,

supervising,

training,

supervising, and retention policies were the proximate cause of any
injury to the plaintiffs, the court concludes that defendant Waffle
House is entitled to summary judgment on plaintiffs'
negligently hiring,

training,

claims for

supervising, or retaining Brittany

Campbell or any other employee.
F.

Declaratory Relief

Asserting

that

"[a]n

actual

controversy

exists

between

Plaintiffs and Defendants as to whether Defendant Waffle House's
unequal treatment of Plaintiffs violates the Civil Rights Act of
1964,

42

90

U.S.C.A.

§

2000a

et.

seq.,

Id. at 14.
-52-

or

any

applicable

State

statute, " 91

plaintiffs

allege

that

" [i] t

is

necessary

and

appropriate for the Court to issue a declaration of rights in this
case in order that the parties can have a clear statement as to
their respective rights, and so that future litigation over similar
incidents can be avoided." 92
"When a declaratory judgment action is filed in state court
and is subsequently removed to federal court, it is converted to
one brought under the federal Declaratory Judgment Act."
Bank of America Home Loan Servicing LP,
WL

568755,

at

*8

(S.D.

Tex.

Feb.

Declaratory Judgment Act provides

21,

that

controversy within its jurisdiction,

No.

Bell v.

4:11-CV-02085,

2012).
"[i] n

a

The

2012

federal

case of actual

. any court of the United

States, upon the filing of an appropriate pleading, may declare the
rights and other legal relations of any interested party seeking
such declaration,
sought."

whether or not further relief is or could be

28 U.S.C.

§

2201(a).

The federal Declaratory Judgment

Act does not create a substantive cause of action but, instead, is
merely a procedural vehicle that allows a party to obtain an early
adjudication

of

substantive law.

an

actual

See Aetna Life Ins.

Haworth, 57 S. Ct. 461, 463

91

p. 7

~
92

Plaintiffs'
24.
Id.

~

controversy

arising

under

Co. of Hartford,

other

Conn. v.

(1937); Lowe v. Ingalls Shipbuilding,

Third Amended Complaint,

25.
-53-

Docket Entry No.

16,

723 F. 2d 1173, 1178

(5th Cir. 1984) .

In a declaratory judgment

action, "[b]ased on the facts alleged, there must be a substantial
and continuing controversy between two adverse parties."
Texas,

341

F.3d

explained above,

352,

358

the

(5th

Cir.

court has

2003).

For

Bauer v.

the

reasons

concluded that plaintiffs have

failed to present evidence capable of raising a genuine issue of
material

fact

Therefore,

for

trial

plaintiffs

on

have

any
no

of

their

continuing

substantive

claims.

controversy so

their

request for declaratory judgment must fail.
V.

For

the

plaintiffs

reasons

have

reasonable

stated

failed

to

fact-finder

discriminated

Conclusions

against

above,

present

could

the

court

any

evidence

conclude

plaintiffs

in

that

public

concludes
from
Waffle

that

which

a

House

accommodation

in

violation of Title II of the Civil Rights Act of 1964, 42 U.S.C.
§

2000a;

that

Waffle

battered plaintiffs;
emotional

distress

House

falsely

imprisoned,

that Waffle House
on

the

plaintiffs;

assaulted,

or

intentionally inflicted
that

Waffle

House

was

negligent in hiring, supervising, training, or retaining Brittany
Campbell; or that injunctive or declaratory relief is required to
prevent Waffle

House

from

engaging

in conduct

that

is

either

tortious or violative of Title II of the Civil Rights Act of 1964,
42

u.s.c.

§

2000a.

Accordingly, Defendant Waffle House,

Motion for Summary Judgment (Docket Entry No.
-54-

Inc.'s

51) is GRANTED and

Defendant Waffle House, Inc.'s Motion to Supplement its Motion for
Summary Judgment to add Exhibits K-la through K-2b (Docket Entry
No. 53) is GRANTED.
SIGNED at Houston, Texas, on this 13th day of April, 2016.

UNITED STATES DISTRICT JUDGE

-55-