Distinguished Executives Transportation, LLC et al v. Cracker Barrel Old Country Store, Inc.

Filing 75

MEMORANDUM OPINION AND ORDER granting in part and denying in part 54 MOTION by Cracker Barrel Old Country Store, Inc. for Summary Judgment as fully described herein; Cracker Barrel's motion for summary judgment is granted on each of Distin guished Executives' claims; granted on Freeman's claims of defamation and IIED; and denied on Freeman's section 1981 claim. Signed by Judge John T. Copenhaver, Jr. on 5/10/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DISTINGUISHED EXECUTIVES
TRANSPORTATION, LLC, and RANDY
FREEMAN,
Plaintiffs,
v.

Civil Action No. 2:16-cv-08503

CRACKER BARREL OLD COUNTRY
STORE, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is defendant Cracker Barrel Old Country Store,
Inc.’s (“Cracker Barrel”) motion for summary judgment, filed
December 7, 2017.

I. Background

Defendant Cracker Barrel is a Tennessee corporation
with its principal place of business in Tennessee.
3.)

(Compl. ¶

Plaintiff Randy Freeman is an African-American male who

resides in Williamsburg, Virginia.
(“Freeman Dep.”) 6, 128.)

(Deposition of Randy Freeman

Freeman is the “sole proprietor,” as

Freeman phrases it, of plaintiff Distinguished Executives
Transportation, LLC (“Distinguished Executives”), which is based
in Virginia.

(Id. 9, 12-13).

Distinguished Executives’

business is, in part, contracting with tour companies or
churches to transport tour groups via motor coach.

(Id. 12-14.)

On September 6, 2015, Freeman, under a contract
between Distinguished Executives and White Star Tours, was
driving an all-white church group from Elkhardt Baptist Church,
which appears to be located in Virginia, to Branson, Missouri.
(Id. 14-15, 30, 38, 72.)

Freeman stopped the group for the

night at a hotel in Cross Lanes, West Virginia.

(See id. 38.)

While Freeman completed some paperwork, the group proceeded to
the adjacent restaurant owned by Cracker Barrel (the
“restaurant”).

(Id. 30.)

Freeman came to the restaurant

sometime shortly thereafter.

(See id.)

Freeman waited in line at the restaurant for about
fifteen minutes until he could be seated.

(Id.)

He told the

wait staff that he was with the group from White Star; he did
not mention Distinguished Executives.

(Id. 101-03.)

As he was

being seated, Freeman passed a group of three white women from
the group at a table for four.

(Id. 30-31; 52; 93.)

The women,

who had already ordered their food, invited Freeman to sit with
them, and Freeman accepted.
Kailee Payne.

(Id.)

The table’s server was

(See Deposition of Kailee Payne (“Payne Dep.”)

30-31.)

2

According to Freeman, the women’s food arrived around
thirty minutes later, at which time Freeman asked Payne if he
could order.

(Freeman Dep. 31.)

not respond and left the table.

Freeman alleges that Payne did
(Id.)

Payne, on the other hand, claims that she asked
Freeman soon after he sat down if she could take his order and
that Freeman responded that he was not going to eat.
Dep. 31-32.)

(Payne

Payne alleges that Freeman then left the table and

that she did not see him for another ten minutes to an hour when
he returned to the table.

(Id. 33-36.)

At that time, Payne

asserts that Freeman yelled at her in an aggressive tone, “who’s
going to take my f--king order?”
these allegations.

(Id. 34.)

Freeman denies

(E.g. Freeman Dep. 91.)

Payne left the table and reported her story, in tears,
to one of the restaurant’s managers, Christopher Goodlet.

(E.g.

Deposition of Christopher Goodlet (“Goodlet Dep.”) 133-35; see
Freeman Dep. 31.)

Without having seen Freeman, Goodlet claims

he decided that Freeman should leave the restaurant.

(Goodlet

Dep. 146-47, 171.)
Goodlet’s testimony indicates that he spoke to Freeman
only once, whispering such that no one else could hear.
132-33.)

(Id.

Goodlet told Freeman what Payne had relayed to him and

asked Freeman to leave.

(See, e.g., id. 132-33; 140, 147.)
3

Goodlet claims that Freeman left the table and proceeded to the
retail area of the restaurant, (id. 133, 167-68), which is
separate from the dining area, (see Freeman Dep. 37).
avers that Freeman acted rudely in the retail area.
Dep. 167-68.)

Goodlet
(Goodlet

Goodlet claims that he had to get back to work,

so he gave Freeman his card and information and asked a
different manager, Nate McManaman, to escort Freeman out of the
restaurant.

(Id. 133, 140, 152, 167-68.)

Goodlet’s typical

response when a customer is unhappy is to ask why and to attempt
to resolve the issue.

(See id. 124, 128.)

In this case,

Goodlet believed what Payne had told him without conducting any
further investigation.

(E.g. id. 159.)

According to Freeman, Goodlet spoke to him twice.
Goodlet first informed Freeman of Payne’s story but did not ask
Freeman to leave.

(See Freeman Dep. 31.)

Freeman claims that

Goodlet spoke loudly enough for the three women to hear, or that
the others could at least understand what Goodlet said based on
Freeman’s response.

(Id. 87-92.)

Freeman denied that he yelled

or cursed at Payne and asserts that he had the support of the
three women at the table, and Goodlet left.
92.) 1

(Id. 35-36, 41, 87-

Freeman alleges that an African-American male replaced

1

For this point, Freeman also proffers three statements, written
ostensibly by the three women seated at the table with him.
(See Pls.’ Ex. C.) The statements, handwritten and not under
4

Payne as the table’s server, and Freeman ordered a drink and
food.

(Id. 36, 80.)

Freeman his drink.

The same African-American male brought
(Id.)

Before Freeman received his food,

Goodlet returned a second time, told Freeman that he believed
Payne, and asked Freeman to leave.

(Id. 36-37.)

Freeman asked

to see a manager and walked to the retail area of the restaurant
where he spoke with McManaman.

(Id. 36-37.)

McManaman claims that Freeman was being very loud in
the retail area and telling other customers to leave the
restaurant, (Deposition of Nate McManaman (“McManaman Dep.”) 44,
47, 53-54, 58-59), while Freeman avers that he was simply
standing in the retail area with a brochure containing the phone
number of Cracker Barrel’s headquarters, (Freeman Dep. 37).
Freeman and McManaman had a brief conversation, and McManaman
told Freeman that he had to believe Payne, that Payne was new,
that the restaurant was understaffed and busy that day, and that
Freeman had to leave.
58.)
left.

(Id. 37, 80; McManaman Dep. 43-47; 53-56,

McManaman gave Freeman his business card, and Freeman
(Freeman Dep. 37, 80; McManaman Dep. 46-47, 56.)

penalty of perjury, are inadmissible as evidence and played no
part in the court’s disposition herein. See Fed. R. Civ. P.
56(c)(2).
5

Freeman later called Cracker Barrel’s headquarters
about the incident.

(Freeman Dep. 39-40.)

He received a call

back and was told that there would be an investigation, but no
one from Cracker Barrel ever contacted him again.

(Id.)

Goodlet did not write down anything about the incident, nor did
he report it to anyone.

(Goodlet Dep. 150.)

Neither Goodlet nor Payne felt threatened at any point
during the incident.

(Id. 168; Payne Dep. 38.)

No one yelled

at or touched Freeman, and no racial epithets were spoken.
(Freeman Dep. 79-80, 121.)

Freeman did not seek medical care or

incur any medical costs as a result of the incident.
95.)

(Id. 94-

Freeman claims that it was the most embarrassing moment of

his life, even moreso than when he attended a raciallysegregated elementary school.

(Id. 51, 128-29.)

Freeman does not have records of any economic loss
suffered by either him or Distinguished Executives as a result
of the incident.

(Id. 111-13; see id. 14-17.)

Additionally,

Freeman is unaware of any negative comments made by anyone else
about him or by anybody about Distinguished Executives at all.
(Id. 98-103, 105.)

White Star continues to contract with

Distinguished Executives.

(Id. 34, 95-96.)

Andrew Cammarano,

Tour Manager for White Star, swears that White Star took no
adverse action against Freeman and Distinguished Executives and
6

that he “ha[s] not heard of any harm to [Freeman’s or
Distinguished Executive’s] personal or business reputation from
an event that occurred at Cracker Barrel.”

(Affidavit of Andrew

Cammarano ¶¶ 1, 3, 7, 9-10.)
Freeman and Distinguished Executives initiated this
action in this court on September 1, 2016.

The plaintiffs bring

three claims against Cracker Barrel, the sole defendant, for
discrimination in violation of Section 101 of the Civil Rights
Act of 1991, 42 U.S.C. § 1981 (Count I); defamation (Count II);
and intentional infliction of emotional distress (“IIED”), also
known as the tort of outrage (Count III).
inter alia, damages and injunctive relief.

The plaintiffs seek,
(Compl. WHEREFORE

Clause.)
On December 7, 2017, Cracker Barrel moved for summary
judgment on all counts.

Cracker Barrel argues that

Distinguished Executives has failed to show any actions taken
against it, (see Mem. Supp. 6, 11), and, further, that
Distinguished Executives cannot suffer emotional distress as an
entity, (id. 17).

As for Freeman, Cracker Barrel insists that

there is no evidence that Freeman was removed from the store
because he is African-American.

(Id. 6-7.)

Cracker Barrel also

contends that Freeman has failed to establish facts sufficient
to sustain his defamation and IIED claims.
7

(Id. 7, 14.)

The plaintiffs argue first that they have established
a prima facie case of discrimination and that Cracker Barrel’s
non-discriminatory justifications for removing Freeman are mere
pretext.

(Resp. Opp’n 4, 13.)

Second, the plaintiffs contend

that a reasonable jury could find that Cracker Barrel defamed
them.

(Id. 13-14.)

Third, while the plaintiffs agree that

Distinguished Executives cannot suffer IIED, (id. 18), the
plaintiffs assert that there exist triable issues pertaining to
Freeman, (id. 18-19).

II. Summary Judgment Standard

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

The court’s review is guided by the

principle that it must “construe the evidence, and all
reasonable inferences that may be drawn from such evidence, in
the light most favorable to the nonmoving party.”

Dash v.

Mayweather, 731 F.3d 303, 310 (4th Cir. 2013) (citing PBM
Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir.
2011)).
“As to materiality, . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
8

law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (citing 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2725 (2nd ed. 1983)).
Regarding genuineness, “summary judgment will not lie
if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Id.; see also S.B. v. Bd. of

Educ., 819 F.3d 69, 74 (4th Cir. 2016) (quoting Perini Corp. v.
Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

The

moving party has the initial burden of “‘showing’ - that is,
pointing out to the district court - that there is an absence of
evidence to support the nonmoving party's case.”
v. Catrett, 477 U.S. 317, 325 (1986).

Celotex Corp.

This is true

“[i]rrespective of the burdens assigned by the applicable
substantive law.”

Dash, 731 F.3d at 311.

If the movant carries its burden, the non-movant must
demonstrate that “there is sufficient evidence favoring [it] for
a jury to return a verdict” in its favor.

Anderson, 477 U.S. at

249 (citation omitted); see also Dash, 731 F.3d at 311.
explained by our circuit court of appeals,

9

As

[a]lthough the court must draw all justifiable
inferences in favor of the nonmoving party, the
nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one
inference upon another, or the mere existence of a
scintilla of evidence. See Anderson, 477 U.S. at 252;
Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th
Cir. 1997). Rather, “a party opposing a properly
supported motion for summary judgment . . . must ‘set
forth specific facts showing that there is a genuine
issue for trial.’” Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting
Fed. R. Civ. P. 56(e) (2002) (amended 2010)).
Dash, 731 F.3d at 311 (alteration in original).

III. Discussion

A. 42 U.S.C. § 1981

Section 101 of the Civil Rights Act of 1991, 42 U.S.C.
§ 1981, “protects all persons from racial discrimination in
making and enforcing contracts.”

Woods v. City of Greensboro,

855 F.3d 639, 645 (4th Cir. 2017) (citing 42 U.S.C. § 1981).
The statute ensures that “[a]ll persons . . . shall have the
same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens.”

42 U.S.C. § 1981 (2016).

“To prove

a § 1981 claim, . . . a plaintiff must ultimately establish both
that the defendant intended to discriminate on the basis of
race, and that the discrimination interfered with a contractual

10

interest.”

Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427,

434 (4th Cir. 2006).
Where a plaintiff cannot produce direct evidence of a
defendant’s intent to discriminate, the plaintiff “must proffer
sufficient circumstantial evidence to satisfy the familiar
McDonnell Douglas analytical framework.”

Williams v. Staples,

Inc., 372 F.3d 662, 667 (4th Cir. 2004) (citing Murrell v. The
Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir. 2001)); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework, the burden initially
falls upon the plaintiff to establish a prima facie case of
discrimination.

Williams, 372 F.3d at 667.

The burden then

shifts to the defendant to “produc[e] evidence that it acted
with a legitimate, nondiscriminatory reason.”

Id.

If the

defendant carries that burden, the burden then shifts back to
the plaintiff to “adduce evidence showing that the defendant's
proffered reason was mere pretext and that race was the real
reason for the defendant's less favorable treatment of the
plaintiff.”

Id.

“Although the respective evidentiary burdens

shift back and forth under the framework, ‘the ultimate burden
of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with
the plaintiff.’”

Id. (quoting Tex. Dep’t of Cmty. Affairs v.

11

Burdine, 450 U.S. 248, 253 (1981)).

For reasons explained

below, the court finds that the plaintiffs have demonstrated a
genuine issue for trial as to Freeman, but not as to
Distinguished Executives.
For a section 1981 action “relating to the purchase of
goods or services,” as is the case here, a plaintiff’s prima
facie case of discrimination is comprised of the following
elements:
(1) he is a member of a protected class; (2) he sought
to enter into a contractual relationship with the
defendant; (3) he met the defendant's ordinary
requirements to pay for and to receive goods or
services ordinarily provided by the defendant to other
similarly situated customers; and (4) he was denied
the opportunity to contract for goods or services that
was otherwise afforded to white customers.
Id. at 667-68 (citing Murrell, 262 F.3d at 257).
Contrary to Cracker Barrel’s assertion, Distinguished
Executives is a member of a protected class because it has
acquired the African-American identity of Freeman, its sole
proprietor.

In Woods, the United States Court of Appeals for

the Fourth Circuit acknowledged that business entities may,
under certain circumstances, assume a racial identity and thus
possess standing to sue under section 1981 for racial
discrimination.

See 855 F.3d at 645-46.

One such circumstance

endorsed by the Fourth Circuit exists here: where an entity is
“owned entirely by shareholders of a single race.”
12

Id. (quoting

New La. Holdings, LLC v. Arrowsmith, 2012 U.S. Dist. LEXIS
173313, at *19-21 (N.D. Ill. Dec. 4, 2012) (collecting cases)).
Nevertheless, the plaintiffs have failed to adduce
sufficient evidence supporting Distinguished Executives’ prima
facie case.

As Cracker Barrel notes, Distinguished Executives

did not attempt to contract with Cracker Barrel.
Supp. 6.)

(See Mem.

Freeman visited the restaurant to purchase a meal for

himself; thus, Freeman is the party who “has (or would have)
rights under the existing (or proposed) contract that he wishes
‘to make and enforce.’”

Domino’s Pizza, Inc. v. McDonald, 546

U.S. 470, 479-80 (2006); see also id. at 476 (“Any claim brought
under § 1981 . . . must initially identify an impaired
‘contractual relationship,’ § 1981(b), under which the plaintiff
has rights.”)

Indeed, Freeman stated that he was with the White

Star group rather than Distinguished Executives.

Further, there

is no evidence that anyone at the restaurant knew that
Distinguished Executives even existed.
The plaintiffs somewhat confusingly suggest that
Distinguished Executives attempted to contract with Cracker
Barrel because “50% of the cost of a meal [may be] treated as a
business expense.”
(2016)).)

(Resp. Opp’n 6 (citing I.R.S. Pub. 463

Section 1981, however, is concerned with intentional

discrimination.

See Denny, 456 F.3d at 434.
13

The plaintiffs’

reliance upon tax treatment of such an expenditure is unavailing
here.

Accordingly, Cracker Barrel’s motion for summary judgment

as to Distinguished Executives is granted.
As to Freeman, on the other hand, the plaintiffs have
established a prima facie case of discrimination.
two, and four are uncontested.

Elements one,

Freeman is African-American, a

protected class; he sought to purchase a meal from the
restaurant owned by Cracker Barrel; and he was removed from the
restaurant while the three white customers at his table were
not.
Element three - he met Cracker Barrel’s ordinary
requirements to pay for and to receive goods or services
ordinarily provided by Cracker Barrel to other similarly
situated customers - is a closer issue, but the evidence, viewed
in the light most favorable to Freeman, demonstrates that a
reasonable jury could deem it satisfied.

As a threshold matter,

Cracker Barrel contends that Goodlet did not know Freeman’s race
when he decided to remove Freeman from the restaurant, that the
decision was Goodlet’s alone, and that Goodlet was merely acting
upon the information conveyed by Payne.

(Mem. Supp. 7.)

It

follows, according to Cracker Barrel, that “there is no evidence
that Mr. Freeman was denied service or treated any differently
because of his race.”

(Id.)

In other words, Freeman was not an
14

ordinary customer in the mind of Goodlet because he had
apparently cursed and yelled at a server.
The plaintiffs respond that Payne’s alleged
motivations in reporting her story should be imputed to Goodlet.
(See Resp. Opp’n 10.)

The plaintiffs rely upon the “causal

nexus” theory described by the Sixth Circuit in Christian v.
Wal-Mart Stores, Inc., 252 F.3d 862, 878 (6th Cir. 2001).
According to that theory, the racial animus of a lower-level
employee is attributed to the otherwise-colorblind decisionmaker
if the “racial animus was the cause of the [adverse action] or
somehow influenced the ultimate decisionmaker.”

Id. at 877.

The plaintiffs note that the evidence, viewed in the
light most favorable to Freeman, shows that Freeman did not
curse or yell at Payne, leaving “only two distinctions between
Freeman and his white counterparts at the table: (1) his race
and (2) the false allegation levied against him.”
9-10.)

(Resp. Opp’n

Thus, the plaintiffs argue that a reasonable jury could

conclude that Payne “harbored racial animus against Freeman.”
And because Payne’s story was the sole basis for Goodlet’s
decision to remove Freeman from the restaurant, the plaintiffs
insist that Payne’s supposed racial animus is imputed to
Goodlet.

(Id. 10.)

15

Cracker Barrel replies that “[t]here are several
issues with Plaintiffs attempting to apply [Christian] here.”
(Reply Supp. 5.)

First, Cracker Barrel asserts that the

plaintiffs’ conclusion on Payne’s purported racial animus is
wholly unsupported by any direct evidence.

(See id. 5-6.)

The

court notes, however, that the McDonnel Douglas analytical
framework is driven by circumstantial evidence.
372 F.3d at 667.

See Williams,

Consequently, a lack of direct evidence of any

racial animus harbored by Payne is not fatal to the plaintiffs’
argument.
Second, Cracker Barrel argues that the “causal nexus”
theory does not exist in the Fourth Circuit.
6-7.)

(See Reply Supp.

According to Cracker Barrel, the Fourth Circuit endorses

a “much stricter” standard that requires the employee harboring
racial animus to be a supervisor or a manager.

(See id.)

Because Payne was neither a supervisor nor a manager, Cracker
Barrel contends that any purported racial animus on her part
cannot be attributed to Goodlet.

(Id. 6.)

In Hill v. Lockheed Martin Logistics Mgmt., the Fourth
Circuit declined to adopt the causal nexus theory of the Sixth
Circuit as well as similar theories endorsed by other circuits.
354 F.3d 277, 289 (4th Cir. 2004) (en banc) (citing Christian

16

and other circuit opinions).

Instead, the Fourth Circuit

decided, in an employment dispute, that
the person allegedly acting pursuant to a
discriminatory animus need not be the “formal
decisionmaker” to impose liability upon an employer
for an adverse employment action, so long as the
plaintiff presents sufficient evidence to establish
that the subordinate was the one “principally
responsible” for, or the “actual decisionmaker”
behind, the action.
Id. at 288-89 (quoting Reeves, 530 U.S. at 151-52).

Thus,

Cracker Barrel is correct that the Fourth Circuit employs a more
stringent imputed animus standard than its counterparts.

Rather

than a mere causal nexus, as is required in the Sixth Circuit
under Christian, Hill directs “that the subordinate employee
possess[] such authority as to be viewed as the one principally
responsible for the decision or the actual decisionmaker.”

Id.

at 291.
Hill, however, does not restrict the racial animus
inquiry only to those with supervisory or managerial authority.
While the operative statutes in Hill - Title VII of the Civil
Rights Act (42 U.S.C. §§ 2000e et seq.) and the Age
Discrimination in Employment Act of 1967 (“ADEA”) (29 U.S.C. §§
621 et seq.) - reach only “the acts of its employees holding
supervisory or other actual power to make tangible employment
decisions,” Hill, 354 F.3d at 287, the imputed animus standard
in Hill recognizes that the decisions of such employees may be
17

principally driven or actually made by a discriminating
subordinate.

Hill acknowledges the practical conclusion that,

in these circumstances, the subordinate is fairly regarded as
“principally responsible for the decision or the actual
decisionmaker” such that he becomes an agent of the employer for
purposes of Title VII and the ADEA.

See id. at 291.

Indeed,

the Fourth Circuit noted that holding otherwise “would thwart
the very purposes of the acts by allowing employers to insulate
themselves from liability simply by hiding behind the blind
approvals, albeit non-biased, of formal decisionmakers.”
290.

Id. at

And to be sure, the Fourth Circuit in Hill applied the

imputed animus standard to a nonsupervisory employee who
allegedly harbored discriminatory animus toward the plaintiff,
asking whether the nonsupervisory employee could “be deemed a
decisionmaker for, or agent of,” the employer.

See id. at 291.

In any event, the Fourth Circuit’s formulation of the
imputed animus rule in Hill was rooted in the employment and
agency principles underlying Title VII and the ADEA.
1981 is not similarly limited.

Section

Cf. Patterson v. McLean Credit

Union, 491 U.S. 164, 170 (1989) (“The aim of [§ 1981] is to
remove the impediment of discrimination from a minority
citizen’s ability to participate fully and equally in the
marketplace.”).

In particular, in a case relating to the

18

purchase of goods or services, “it is rare that . . . a consumer
will be mistreated by a manager or supervisor.

Most consumer

encounters are between consumers and clerks who are nonsupervisory employees.”

Arguello v. Conoco, Inc., 207 F.3d 803,

810 (5th Cir.), cert. denied, 531 U.S. 874 (2000).

“[A] rule

that only actions by supervisors are imputed to the employer
would result, in most cases, in a no liability rule.”

Id.

For these reasons, while the imputed animus rule of
Hill may, in a given employment situation, require that the
employee harboring discriminatory animus be a supervisor or
manager, section 1981 seems to require that the imputed animus
rule be modified for cases relating to the purchase of goods or
services.

Accordingly, Cracker Barrel’s argument that Payne’s

alleged racial animus cannot be imputed to Goodlet because Payne
had no supervisory authority is without merit.
Viewed in the light most favorable to Freeman, the
record reveals the following account.

Freeman sat with three

white women from the group at a table of four.
minutes later, the women’s food arrived.
table’s server, Payne, if he could order.

Around thirty

Freeman asked the
Payne did not respond

and went to a separate area of the restaurant to speak with
Goodlet, a manager.

There, a crying Payne recounted a false

story that Freeman had cursed and yelled at her.
19

A reasonable

jury could conclude that Payne’s conduct was motivated by racial
animus: as the plaintiffs note, “[Payne] knew nothing else about
Freeman but his race.”

(Resp. Opp’n 10.)

If Goodlet decided,

based solely on Payne’s demeanor and story, and without knowing
that Freeman was African-American, that Freeman had to leave the
restaurant, Payne was thus the actual decisionmaker, and the
inference of her racial animus can be imputed to Goodlet.
Goodlet then told Freeman the story that Payne had
relayed, speaking loudly enough that the women at Freeman’s
table could hear.

Freeman denied that Payne’s story was true,

and Goodlet left the table without asking Freeman to leave the
restaurant.

Goodlet then replaced Payne with an African-

American male as the table’s server who provided Freeman with a
requested drink.

Sometime later, before Freeman’s food arrived,

Goodlet returned to the table and asked Freeman to leave.
Freeman asked to see a manager and walked to the retail area of
the restaurant.

Ultimately, McManaman told Freeman that Freeman

had to leave, stating that he had to believe Payne, that Payne
was new, and that the restaurant was busy and understaffed that
day.
From that account, the court concludes that the
plaintiffs have thereby satisfied element three of the prima
facie case in regards to Freeman.
20

A reasonable jury could

decide that Freeman, as a customer, was no different than any
ordinary customer at the restaurant: he was seated and simply
asked whether he could order a meal.

See, e.g., Williams, 372

F.3d at 668 (finding that a plaintiff established a prima facie
case under comparable circumstances); Christian, 252 F.3d at
878-79 (same); Lloyd v. Waffle House, Inc., 347 F. Supp. 2d 249,
254 (W.D.N.C. 2004) (same); Slocumb v. Waffle House, Inc., 365
F. Supp. 2d 1332, 1339-40 (N.D. Ga. 2005) (same).
The burden now shifts to Cracker Barrel to justify its
actions with a legitimate, nondiscriminatory reason.

Cracker

Barrel proffers that Goodlet was simply acting upon the
information given to him by Payne and did not know Freeman’s
race when he decided to remove Freeman from the restaurant.
(Mem. Supp. 7.)

Cracker Barrel also contends that some measure

of hostility is simply indicative of “another example of the
decline of civility,” particularly in light of Payne’s
inexperience and the restaurant being busy and understaffed.
(See Mem. Supp. 5-7 (quoting Lizardo v. Denny’s, Inc., 270 F.3d
94, 102 (2d Cir. 2001)).)

“[The court] assume[s], without

deciding, that this evidence suffices as a legitimate,
nondiscriminatory reason for” removing Freeman from the
restaurant.

Williams, 372 F.3d at 669 (citing, as an example,

Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000));

21

cf. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142
(2000) (“This burden is one of production, not persuasion; it
can involve no credibility assessment.” (quotation marks
omitted)).
Cracker Barrel having carried its burden, the
plaintiffs must demonstrate evidence such that a reasonable jury
could conclude by a preponderance of the evidence that Cracker
Barrel’s proffered legitimate, nondiscriminatory reason is mere
pretext for racial discrimination.

See id.

At this step, the

Fourth Circuit advises as follows:
Even though the presumption of discrimination created
by the prima facie case no longer exists, the trier of
fact may still consider the evidence establishing the
plaintiff’s prima facie case, and the reasonable
inferences drawn therefrom, in determining whether the
defendant’s proffered explanation is pretextual and
whether the defendant in fact unlawfully
discriminated. In some cases, “a plaintiff’s prima
facie case, combined with sufficient evidence to find
that the [defendant’s] asserted justification is
false, may permit the trier of fact to conclude that
the [defendant] unlawfully discriminated.”
Id. (citation omitted) (citing and quoting Reeves, 530 U.S. at
143, 147-48); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 511 (1993) (“The factfinder’s disbelief of the reasons put
forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional
discrimination.”).
22

The plaintiffs argue that “Cracker Barrel’s decision
to eject Freeman absent any investigation, let alone a
reasonable one, means that [Goodlet’s] assertion that he did not
consider race in ejecting Freeman was a mere pretext to
discrimination.”

(Resp. Opp’n 13.)

The plaintiffs reference

Cracker Barrel’s threats of violence policy, which is inapposite
here as there are no allegations of threats of violence.

(See

Pls.’ Ex. F.)
The court concludes that a reasonable jury could find
that Cracker Barrel’s proffered reasons are pretextual.
Beginning with Goodlet’s apparent ignorance of Freeman’s race
when he decided to remove Freeman from the restaurant, the court
has already decided that Payne’s alleged racial animus can be
imputed to Goodlet.
this reason is false.

Further, there is reason to believe that
Viewed in the light most favorable to

Freeman, Goodlet did not ask Freeman to leave when the two first
spoke.
denied.

Goodlet merely relayed Payne’s story, which Freeman
Instead of attempting to remedy the situation, as

Goodlet testified he normally would do when a customer is
unsatisfied, Goodlet sent an African-American server to
Freeman’s table.

Nevertheless, after having spoken to Freeman

and doubtlessly learning Freeman’s race, Goodlet spoke to
Freeman a second time and asked Freeman to leave.

23

Cracker Barrel’s remaining reasons are also
insufficient at this stage.

A reasonable jury could be hesitant

to chalk racial animus up to yet another decline in civility.
Moreover, the record shows that Cracker Barrel was able to
counter Payne’s inexperience with a different server, who was
evidently able to serve Freeman’s table despite staffing
shortages and business traffic issues.
Accordingly, the plaintiffs have demonstrated genuine
issues for trial as to Freeman’s, but not Distinguished
Executives’, claim of racial discrimination under 42 U.S.C. §
1981.

B. Defamation

In West Virginia, “[t]he essential elements” of a
defamation action brought by a private individual are as
follows:
(1) defamatory statements; (2) a nonprivileged
communication to a third party; (3) falsity; (4)
reference to the plaintiff; (5) at least negligence on
the part of the publisher; and (6) resulting injury.
Syl. Pt. 5, Belcher v. Wal-Mart Stores, 211 W. Va. 712 (2002)
(quoting Syl. Pt. 1, Crump v. Beckley Newspapers, 173 W. Va. 699
(1983)).

As a general matter, a sufficient showing on each

element of a cause of action is necessary to survive summary

24

judgment.

See id. at 719 (citing Syl. Pt. 2, Williams v.

Precision Coil, Inc., 194 W. Va. 52 (1995)).
Beginning with Distinguished Executives, no reasonable
jury could conclude that Cracker Barrel defamed Distinguished
Executives.

The plaintiffs evidently do not disagree, as the

response brief does not address Distinguished Executives’
defamation claim.

(See Resp. Opp’n 13-18.)

There is no

evidence in the record demonstrating any statement in reference
to Distinguished Executives.

As earlier noted, Freeman never

mentioned Distinguished Executives, instead stating that he was
with the White Star group, and there is nothing in the record to
show that anyone at the restaurant had any knowledge of
Distinguished Executives.

Accordingly, Cracker Barrel’s motion

for summary judgment regarding Distinguished Executives is
granted.
Turning to Freeman, the court finds that Freeman’s
defamation claim fails because the record does not demonstrate
that he suffered special damages.

The plaintiffs put forth two

allegedly defamatory communications: Goodlet’s accusation that
Freeman yelled and directed the word “f--king” at his server and
Freeman’s removal from the restaurant.

(See Resp. Opp’n 14-15.)

The plaintiffs insist that both communications injured Freeman
per se and per quod.

(Id. 13-14, 18.)
25

There are two types of defamatory communications:
libel and slander.

See Restatement (Second) of Torts § 568 (Am.

Law Inst. 1977); see also Dan B. Dobbs, Paul T. Hayden & Ellen
M. Bublick, The Law of Torts § 519 (2d ed.).

Libel is

defamation by writing or comparable means, while slander is
defamation by any other means, including oral words and physical
gestures.

Restatement (Second) of Torts § 568; The Law of Torts

§ 519; cf. Syl. Pt. 3, Crump, 173 W. Va. 699 (“Although libel is
generally perpetrated by written communication, it also includes
defamation through the publication of pictures or
photographs.”); Syl. Pt. 4, id. (“Defamation may be accomplished
through inference, implication, innuendo or insinuation, as well
as through direct reference.”).
Slander, at issue here, is further divided into two
categories based upon the nature of the communication.

General

slander, or slander per quod, requires proof of special damages,
or pecuniary loss.

The Law of Torts, § 534.

Slander per se, on

the other hand, comprises a limited set of slanderous
communications that are regarded as so severe that proof of
special damages is not required.

See id.; 50 Am. Jur. 2d Libel

and Slander § 145 (2018) (describing slanderous per se
communications as those that naturally “tend to disgrace or
degrade the plaintiff, or to hold him up to public hatred,

26

contempt, or ridicule, or to cause him to be shunned or avoided,
or to directly prejudice or injure him in his business by
imputing to him a want of fitness for engaging therein”); cf.
Denoff v. Fama, 102 W. Va. 494, 504 (1926) (“Where words are
actionable per se, it is not necessary to aver and prove special
damages in order to entitle the plaintiff to general damages.
The law implies all such damages as are the natural and probable
consequence of the words so spoken or written, in all cases
where the words are actionable per se.”) (quoting Syl. Pt. 2,
Milan v. Long, 78 W. Va. 102 (1916)).
Slander per se is that which charges a (1) serious
criminal offense or one of moral turpitude, (2) a
“loathsome” and communicable disease, (3) any matter
incompatible with business, trade, profession, or
office, and, sometimes, (4) serious sexual misconduct.
The Law of Torts § 534 (footnotes omitted) (citing, inter alia,
Restatement (Second) of Torts §§ 571-73); see also Restatement
(Second) of Torts §§ 570, 574; 50 Am. Jur. 2d Libel and Slander
§ 145 (2018); 12A M.J. Libel and Slander § 3 (2018).

The

determination of whether a communication constitutes slander per
quod or slander per se is a question of law.

See 50 Am. Jur. 2d

Libel and Slander § 144; 12A M.J. Libel and Slander § 3 n.404;
cf. Belcher, 211 W. Va. at 719 (stating that “[a] court must
decide initially whether as a matter of law the challenged
statements in a defamation action are capable of a defamatory

27

meaning” (quoting Syl. Pt. 6, Long v. Egnor, 176 W. Va. 628
(1986))).
The plaintiffs argue that Cracker Barrel slandered
Freeman per se by charging him with the “crime of disorderly
conduct or trespass.”

(See Resp. Opp’n 15, 18.)

For a charge

of criminal conduct to be actionable without proof of special
damages, the relevant criminal offense must, “if committed in
the place of publication, . . . be (a) punishable by
imprisonment in a state or federal institution, or (b) regarded
by public opinion as involving moral turpitude.”
(Second) of Torts § 571.

Restatement

Many misdemeanors, even though

“punishable by imprisonment in the county jail,” are not
actionable per se under subsection (a) and must otherwise be one
of moral turpitude.

See id. cmt. f.

Moral turpitude

contemplates “inherent baseness or vileness of principle in the
human heart,” or “shameful wickedness, so extreme a departure
from ordinary standards of honesty, good morals, justice or
ethics as to be shocking to the moral sense of the community.”
Id. cmt. g.
In West Virginia, disorderly conduct and trespass are
misdemeanors, and only disorderly conduct carries a potential
penalty of “confine[ment] in jail for twenty-four hours.”
W. Va. Code Ann. §§ 61-3B-2 (trespass), 61-6-1b (disorderly

See

28

conduct) (West 2018, eff. 1978 and June 9, 2015, respectively).
Thus, assuming arguendo that Goodlet charged Freeman with those
two misdemeanors, a point which the court finds tenuous, neither
are slander per se under subsection (a).

Moreover, neither can

reasonably be classified as involving moral turpitude under the
above definitions.
The plaintiffs also contend that Cracker Barrel’s
alleged slander of Freeman is actionable per se as a charge of
matter incompatible with Freeman’s business.
18.)

(See Resp. Opp’n

Any such imputation “must affect the plaintiff in some way

that is peculiarly harmful to one engaged in his trade or
profession.”

Restatement (Second) of Torts § 573 cmt. e; see

also id. cmt. c; The Law of Torts § 534.

“Disparagement of a

general character, equally discreditable to all persons, is not
enough unless the particular quality disparaged is of such a
character that it is peculiarly valuable in the plaintiff's
business or profession.”
cmt. e.

Restatement (Second) of Torts § 573

The alleged defamatory communications at issue here

have no direct relevance to Freeman’s business; rather, they are
general disparagements that would equally discredit any person.
Consequently, the court finds that the alleged defamatory
communications fall under slander per quod, and the plaintiffs
must proffer some proof of special damages.

29

On that note, the plaintiffs have not demonstrated
that Freeman has suffered any pecuniary loss as a result of
Cracker Barrel’s alleged conduct.

Freeman does not have any

record of economic loss as a result of the incident, and the
incident does not appear to have negatively affected Freeman’s
business.

Indeed, White Star continues to contract with

Distinguished Executives.

Accordingly, because the plaintiffs

have not shown that Freeman has suffered pecuniary loss, Cracker
Barrel’s motion for summary judgment on Freeman’s defamation
claim is granted.

C. Intentional Infliction of Emotional Distress

A plaintiff must establish the following four elements
to prevail on a claim of IIED:
(1) that the defendant's conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant
acted with the intent to inflict emotional distress,
or acted recklessly when it was certain or
substantially certain emotional distress would result
from his conduct; (3) that the actions of the
defendant caused the plaintiff to suffer emotional
distress; and, (4) that the emotional distress
suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Syl. Pt. 3, Travis v. Alcon Labs., Inc., 202 W. Va. 369 (1998).
“Whether conduct may reasonably be considered outrageous is a

30

legal question, and whether conduct is in fact outrageous is a
question for jury determination.”

Syl. Pt. 4, id.

Under West Virginia common law, a defendant’s conduct
gives rise to IIED
only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the
actor, and lead him to exclaim, “Outrageous!”
Tanner v. Rite Aid, 194 W. Va. 643, 651 (1995) (quoting
Restatement (Second) of Torts § 46 cmt. d (1965)).

The Supreme

Court of Appeals cautions that “[e]specially where no physical
injury accompanies the wrong, the tort of outrage is a slippery
beast, which can easily get out of hand without firm judicial
oversight.”

Id. (quoting Keyes v. Keyes, 182 W. Va. 802, 805

(1990)).
At the outset, the plaintiffs “agree that
[Distinguished Executives] cannot bring a cause of action for”
IIED.

(Resp. Opp’n 18.)

Accordingly, Cracker Barrel’s motion

for summary judgment as to Distinguished Executives’ IIED claim
is granted.
Turning to Freeman, viewed in the light most favorable
to him, the record does not demonstrate conduct so outrageous as
31

to give rise to a claim for IIED.

Goodlet accused Freeman of

cursing and yelling at his server, which could have been
overheard by the three women seated with Freeman.

Later,

Goodlet returned to the table and asked Freeman to leave.
Freeman then walked with Goodlet to the retail area of the
restaurant, where McManaman affirmed that Freeman had to leave
the restaurant.

These events, while establishing a triable

section 1981 issue when combined with other factors evincing
intentional discrimination, do not “go beyond all possible
bounds of decency.”
The plaintiffs contend that Cracker Barrel’s conduct
was tantamount to “falsely accus[ing] Freeman of a criminal act
severe enough to warrant him a personal escort out of the
[restaurant],” and that doing so constitutes outrageous conduct
in West Virginia.

(See Resp. Opp’n 19.)

The plaintiffs liken

the present circumstances to Tanner, wherein the Supreme Court
of Appeals affirmed a lower court’s decision that a jury could
properly evaluate the evidence without the aid of expert
testimony.

194 W. Va. at 655.

In that case, the plaintiffs,

“inter alia, (1) were publicly accused of criminal wrongdoing,
(2) endured a lengthy, humiliating public search of their
persons and belongings, (3) were repeatedly labeled as thieves,
and (4) were ridiculed by onlooking customers.”

32

Id.

The

Supreme Court of Appeals concluded that the jury, in finding the
defendant liable for IIED, did not need expert testimony “to
prove causation or severity of distress in these circumstances.”
Id.
Despite the apparently limited holding in Tanner,
Freeman was not subjected to a level of conduct comparable to
the plaintiffs in that case.

There, the defendant’s employees

physically accosted the plaintiffs; loudly, angrily, and
explicitly accused the plaintiffs of theft; and forcefully
searched the plaintiffs’ belongings and persons.
646-48.

See id. at

The incident occurred over a continuous “twenty to

thirty minutes” and adjacent to a number of other customers.
See id. at 648.

The plaintiffs here attempt to shoehorn in

implicit accusations of criminality, (see Resp. Opp’n 19), but
the court finds that assertion tenuous at best as noted earlier.
Regardless, missing from the present circumstances is any
alleged conduct by Cracker Barrel that could arguably be
considered outrageous.

Cracker Barrel’s motion for summary

judgment on Freeman’s IIED claim is granted.

IV. Conclusion

Accordingly for the foregoing reasons, it is ORDERED
that Cracker Barrel’s motion for summary judgment be, and hereby
33

01/28/2016

Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
is, granted in part and denied in part as fully described
02/08/2016
Last day for Rule 26(f) meeting.
herein.
02/15/2016

Specifically, Cracker Barrel’s motion Planning
Last day to file Report of Parties= for summary
Meeting. See L.R. Civ. P. 16.1.
judgment is granted on each of Distinguished Executives’ claims;

02/22/2016 on Freeman’s claims of defamation p.m. IIED; and denied
Scheduling conference at 4:30 and at the Robert C.
granted
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
on Freeman’s section 1981 claim.
directed to appear.
02/29/2016

Entry of scheduling order.
The Clerk is directed to transmit copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record and to any
The Clerk is requested to transmit this Order and
unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: May 10, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

34