Young v. Brew City

Filing 49

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the defendant's motion for summary judgment (Docket # 28 ) is GRANTED. IT IS FURTHER ORDERED that the defendant's motion to strike (Docket # 44 ) is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED. (cc: all counsel and mailed to pro se party)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILBERT KING YOUNG, JR.,
Plaintiff,
v.

Case No. 19-CV-464

BREW CITY,
Defendant.
DECISION AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Wilbert King Young, Jr., appearing pro se, sues his former employer Brew City Pizza,
Inc. (improperly named as “Brew City”), alleging that he was suspended and ultimately
terminated from his employment due to his race in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”). Brew City has moved for summary judgment dismissing Young’s
complaint. For the reasons explained below, Brew City’s motion is granted.
UNDISPUTED FACTS
If a party is proceeding pro se, as Young is, and the opposing party files a motion for
summary judgment, the movant must provide the pro se party a copy of Fed. R. Civ. P. 56
and Civil L. R. 7, as well as include a statement alerting the pro se party that any factual
assertion in the movant’s documentary evidence will be accepted by the Court as being true
if the pro se party fails to present his own contradicting admissible documentary evidence.
Brew City properly complied with Civil L. R. 56(a) in its motion for summary judgment.
(Docket # 28.)

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Despite receiving this warning, Young has failed to file “a concise response to the
moving party’s statement of facts,” as required by Civil L. R. 56(b)(2)(B), or any admissible
documentary evidence whatsoever. While Young appends several unauthenticated exhibits
to his response brief (Docket # 40-1), this evidence cannot be considered on summary
judgment. As the Seventh Circuit has instructed:
It bears repeating that the purpose of summary judgment is to determine
whether there is any genuine issue of material fact in dispute and, if not, to
render judgment in accordance with the law as applied to the established
facts. The facts must be established through one of the vehicles designed to
ensure reliability and veracity—depositions, answers to interrogatories,
admissions and affidavits. When a party seeks to offer evidence through other
exhibits, they must be identified by affidavit or otherwise made admissible in
evidence.
Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985). Although Young
appears pro se, this does not excuse him from presenting admissible evidence to oppose Brew
City’s summary judgment motion. Because Young failed to respond to Brew City’s
statement of facts, I will consider all of the defendant’s proposed findings of fact to be
uncontested for purposes of the motion. Civil L.R. 56(b)(4). See Smith v. Lamz, 321 F.3d 680,
683 (7th Cir. 2003) (“A district court is not required to wade through improper denials and
legal argument in search of a genuinely disputed fact. And a mere disagreement with the
movant’s asserted facts is inadequate if made without reference to specific supporting
material.”) (internal quotations and citations omitted).
Brew City owns and operates over thirty Domino’s Pizza franchises in and around
Milwaukee, Wisconsin; Madison, Wisconsin; and Rockford, Illinois. (Def.’s Proposed
Findings of Fact (“DPFOF”) ¶ 7, Docket # 34.) Young, an African-American man, began
working as a Delivery Driver at Brew City’s Domino’s Pizza franchise located at 6111 W.
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Mequon Road, Mequon, Wisconsin (the “Mequon Store”), in May 2016. (Id. ¶ 12.) In his
role as a Delivery Driver, Young was responsible for, among other things, delivering
Domino’s pizza and other food and beverage products to customers, assisting with
preparing pizzas for delivery, and maintaining general upkeep of the store, including taking
out the trash and doing dishes. (Id. ¶ 13.) Young was also one of the employees regularly
responsible for making bank deposits on behalf of the Mequon Store. (Id. ¶ 14.)
In October or November 2016, Young began training part-time to become an
Assistant Store Manager. (Id. ¶ 16.) Young was trained primarily by Ashley Dye, then the
Mequon Store’s General Manager, and Courtney Pate, an Assistant Store Manager. (Id. ¶
17.) Beginning at that time, Young estimates that he spent approximately half of each
workday training to become an Assistant Store Manager and the other half making
deliveries to the Mequon Store’s customers. (Id. ¶ 18.)
At all times during his employment, Young was subject to the policies and
procedures set forth in the Mequon Store’s Employee Handbook (the “Handbook”). (Id. ¶
15.) Pursuant to the Handbook, any employee of the Mequon Store that is going to be
absent from a scheduled shift is required to: (1) contact a manager regarding the absence a
minimum of two hours in advance of the start of his or her shift; and (2) locate another
employee to cover the shift in his or her absence. (Id. ¶ 19.) Any employee who fails to show
up for a scheduled shift without excuse and/or fails to comply with the notification
requirement is deemed to have engaged in a “No Call/No Show” and may be subject to
immediate suspension or termination. (Id. ¶ 20.)
In December 2016, Young had planned a short out-of-town vacation and obtained
approval from Dye to take several days off work for the trip. (Id. ¶ 22.) While Young was
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supposed to return to work on December 11, 2016, he failed to show up for his scheduled
shift. (Id. ¶ 23.) Young asserts that he texted Dye to tell her that he would not be at work for
his scheduled shift because he missed his return flight home; however, Dye does not recall
receiving notice from Young that he would be absent from his scheduled shift. (Id. ¶¶ 24–
25.) Young also failed to locate another employee to cover his shift. (Id. ¶ 24.) Thus, Young
was suspended for failing to show up to work without an appropriate excuse. (Id. ¶ 21.)
Young agrees that there was a “misunderstanding” between him and Dye regarding his
return date to work. (Id. ¶¶ 28–29.)
On January 4, 2017, Brew City asked Young to deliver a bank deposit to an
Associated Bank in Mequon, the location where Young usually made deposits on Brew
City’s behalf. (Id. ¶ 30.) At 11:30 a.m. on January 4, Michael Edwards, then an Assistant
Store Manager at the Mequon Store, placed a bank deposit bag into a breadbox and handed
it to Young to deliver to the bank. (Id. ¶ 31.) After making a pizza delivery, Young arrived
at the bank at approximately 12:05 p.m. (Id. ¶ 33.) The bank teller counted the deposit and
determined that the amount of money in the deposit bag did not match what was listed on
the bank deposit slip—the deposit was supposed to be for approximately $850.00, but there
was only $350.00 in the deposit bag. (Id. ¶ 34.) The bank teller inputted the correct amount
of the deposit, $350.00, into the bank’s online system. (Id. ¶ 35.)
The next day, on January 5, 2017, Young traveled to Atlanta for a planned vacation.
(Id. ¶ 36.) On or about January 16, 2017, Andrew Boisvert, the Supervisor for the Mequon
Store, called the police after learning that $500.00 was missing from the deposit that Young
made on January 4. (Id. ¶ 37.) The police opened an investigation into the matter. (Id. ¶¶
38–41.) During the course of the investigation, Dye told police that on the evening of
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January 3, she had taken the bank deposit bag out of the store’s safe, counted the money,
and determined that there was approximately $851.00 in the deposit bag. (Id. ¶ 42.) Dye
verified the deposit slip, returned the money to the deposit bag, and resecured the bag in the
safe. (Id. ¶ 43.) Store surveillance footage showed Dye counting the money and placing it in
the deposit bag and surveillance footage also showed other employees who had handled the
deposit did not take any money from the deposit bag prior to Young taking possession of it.
(Id. ¶¶ 44–45.) Edwards told police that he did not open the deposit bag or place it anywhere
else prior to giving it to Young. (Id. ¶ 47.)
Police also interviewed Young. (Id. ¶ 48.) Young was questioned as to why it took
him approximately thirty minutes to get from the Mequon Store to the bank when the two
locations were only three to four miles apart. (Id. ¶¶ 39, 49–51.) Young told police that he
made one pizza delivery on the way to the bank on January 4; however, he said it took only
seven minutes to get from the Mequon Store to the delivery location and only seven or eight
minutes to get from the pizza delivery location to the bank. (Id. ¶¶ 49–51.) Although Young
had previously made bank deposits for Brew City on multiple occasions, Young told
Edwards on the morning of January 4 that he was uncomfortable making the deposit
because he did not want to be accused of theft. (Id. ¶ 52.) Mequon police arrested Young for
theft of the missing $500.00 at the conclusion of his interview. (Id. ¶ 53.) At the time of his
arrest, Brew City believed Young had stolen the missing money. (Id. ¶ 54.)
Shortly after Young’s arrest, he was formerly charged with theft in Ozaukee County
Circuit Court. (Id. ¶ 55.) Young did not contact Brew City at any time after being charged
and/or arrested on January 17, 2017 and acknowledges that no one from Brew City ever
sent him a termination notice or verbally communicated to him that he was terminated. (Id.
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¶¶ 56, 58.) Pursuant to Young’s signature bond signed on March 14, 2017, the court
prohibited Young from having any contact with the Mequon Store. (Id. ¶ 57.) Young’s
criminal case proceeded to trial in the Fall of 2017, and Young was ultimately acquitted of
the theft charge. (Id. ¶ 59.)
Young sued Brew City in April 2019, alleging discrimination based on race with
respect to his December 2016 suspension and his separation from employment in early
2017. (Id. ¶ 61.) Young identified two delivery drivers as comparators in relation to his
suspension from work—Michael and Cody. (Id. ¶ 62.) Young believes that Michael may
have missed a scheduled work shift or was late for a shift and was not suspended, but admits
that he does not actually know whether, in fact, Michael had missed a scheduled shift. (Id. ¶
63.) Young alleges that Cody was not suspended after failing to work a scheduled shift, but
admits that Cody was unable to work the shift because of an emergency situation—he had
gotten into a car accident on his commute to work. (Id. ¶ 64.)
Young identified three potential comparators related to his purported termination—
Zakia, Marissa, and Michael. (Id. ¶¶ 67–73.) Young concedes that none of these three
individuals were arrested or charged in connection to their alleged incidents, and that Zakia
is also African American. (Id. ¶¶ 67, 69, 71, 73.) Young admits that no one at Brew City
made any racial comments to him in relation to his suspension and has not pointed to any
purportedly race-based behaviors; however, he assumes that his race must have played a
part in his suspension. (Id. ¶¶ 65–66.)

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SUMMARY JUDGMENT STANDARD
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477
U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the
ultimate burden of proof at trial, that party retains its burden of producing evidence which
would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon
must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a
rational trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check
Services, Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330
F.3d 991, 994 (7th Cir. 2003)).

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ANALYSIS
Young asserts that he was suspended from work in December 2017 and was
terminated from his employment in January 2017 due to his race. (Docket # 1.) Under Title
VII, it is unlawful for an employer to “discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To
defeat summary judgment on his discrimination claim, Young needs to submit evidence
from which a reasonable juror could conclude that Brew City suspended and/or fired him
because of his race. Ortiz v. Werner Enter. Inc., 834 F.3d 760, 764 (7th Cir. 2016). The
evidence “must be considered as a whole, rather than asking whether any particular piece of
evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the
‘indirect’ evidence.” Id. While Ortiz disposes of the distinction between “direct” and
“indirect” evidence, it does not affect the McDonnell Douglas burden shifting framework. Id.
at 766; McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under McDonnell Douglas, Young has the initial burden of establishing that (1) he is a
member of a protected class, (2) he performed reasonably on the job in accord with his
employer’s legitimate expectations, (3) despite his reasonable performance, he was subjected
to an adverse employment action, and (4) similarly situated employees outside of his
protected class were treated more favorably by the employer. David v. Bd. of Trustees of Cmty.
Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017). If Young satisfies that burden, then the
employer must articulate a legitimate, nondiscriminatory reason for the adverse
employment action, at which point the burden shifts back to Young to submit evidence that
the employer’s explanation is pretextual. Id.
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Young argues that he was a good employee with no complaints, write-ups,
suspensions, thefts, or violation of any company policies whatsoever. (Pl.’s Br. in Opp. at 2,
Docket # 40-2.)1 Young believes that he was singled out by Brew City because of his race
and that Brew City treated similarly situated employees more favorably. (Id. at 2–3.) He
argues that Brew City cannot articulate a legitimate, non-discriminatory reason for any
adverse action taken against him. (Id. at 2.)
Young puts forth no evidence beyond his own suppositions that race played a role in
his suspension and alleged termination. Young’s bare assertions of covert racial animus are
insufficient to raise a factual dispute. See Hanners v. Trent, 674 F.3d 683, 694 (7th Cir. 2012)
(finding the plaintiff’s subjective belief insufficient to create a genuine issue of material fact).
As to his suspension, Young argues that Michael and Cody, two delivery drivers outside of
Young’s protected class, violated store policies but failed to experience any adverse
employment action. (Pl.’s Br. in Opp. at 2.) To qualify as similarly situated, a fellow
employee must be “directly comparable to the plaintiff in all material respects.” Walker v.
Bd. of Regents of the Univ. of Wis. Sys., 410 F.3d 387, 396 (7th Cir. 2005). The similarly
situated analysis calls for a “flexible, common-sense” examination of all relevant factors.
Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007). Plaintiff must be “similarly situated with
respect to performance, qualifications, and conduct,” and must show that the other
employee “engaged in similar conduct without differentiating or mitigating circumstances
that would distinguish their conduct or the employer’s treatment of them.” Radue v.
Young filed a brief in opposition to Brew City’s summary judgment motion on July 9, 2020. (Docket # 40.)
Brew City filed its reply brief on July 24, 2020. (Docket # 42.) On August 17, 2020, Young filed an additional
brief in opposition to the summary judgment motion. (Docket # 43.) Brew City moves to strike this brief.
(Docket # 44.) Civil L. R. 56 does not allow the non-moving party to file a sur-reply brief. To the extent
Young wished to file a sur-reply brief, he should have sought leave from the Court. Young’s sur-reply brief is
stricken.
1

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Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). The purpose of the “similarlysituated” comparator employee is to ensure that all other variables are discounted so that
discrimination can be inferred. Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d 729, 742
(7th Cir. 2011). The comparators must be similar enough that any differences in their
treatment cannot be attributed to other variables. Id. Generally, a plaintiff must show that
the other employee: “1) dealt with the same supervisor; 2) was subject to the same
standards; and 3) engaged in similar conduct.” Amrhein v. Health Care Serv. Corp., 546 F.3d
854, 860 (7th Cir. 2008).
Young argues that while Cody called into work due to an emergency, he failed to
find another driver to take his shift, yet suffered no consequence. (Pl.’s Br. in Opp. at 2.) As
to Michael, Young argues that he was accused of theft and verbally disrespected Dye, but
was only offered to switch stores. (Id. at 3.) Young has failed to show that either of these
employees is similarly situated. As to Michael, Young does not allege that he missed a shift,
as Young did. And as to Cody, Young admits that Cody was involved in a motor vehicle
accident on the way to work. (DPFOF ¶ 64.) While, like Young, Cody failed to find a
fellow employee to cover his shift, the fact he was involved in a car accident vastly
distinguishes Young’s situation from Cody’s. Young, returning late from a vacation, had the
time and opportunity to at least attempt to fill his shift. Cody, in contrast, had been in a car
accident. The differentiating circumstances make Michael and Cody insufficient
comparators.
As to Young’s purported termination, he admits that after his arrest, he stopped
coming to work and was never sent a termination notice or verbally told he was terminated
from his employment. (Id. ¶¶ 56, 58.) Thus, it is not clear that Young was actually
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terminated as opposed to voluntarily quitting. Even assuming, however, that Young was
terminated, he has not shown sufficient comparators outside of his protected class that were
treated more favorably. As to Zakia, she is also African American and thus not outside
Young’s protected class. (Id. ¶ 67.) As to the remaining comparators—Marissa and
Michael—Young is unaware of the specific circumstances of either’s alleged theft. (Id. ¶¶
70–73.) Furthermore, Young admits that none of his alleged comparators were arrested,
charged, or prosecuted for their alleged thefts. (Id.) Thus, these are not sufficient
comparators to demonstrate discrimination.
Even if Young could meet his prima facie burden, the fact that Young was arrested,
charged, and prosecuted for the alleged theft from the store serves as a legitimate, nondiscriminatory reason for terminating Young’s employment. Although Young was
ultimately acquitted of the theft by a jury, he does not dispute that at the time of his arrest,
Brew City believed that Young had stolen the missing money (id. ¶ 54) and that the
Ozaukee County Circuit Court prohibited Young from having contact with the store (id. ¶
57). For these reasons, no rational trier of fact could conclude that Brew City discriminated
against Young on account of his race. Brew City is entitled to summary judgment on
Young’s discrimination claims.
CONCLUSION
Young alleges that his former employer, Brew City, discriminated against him on the
basis of his race. Looking at the record as a whole, however, no rational trier of fact could
find that Brew City discriminated against Young based on his race. For these reasons,
summary judgment is granted in favor of Brew City. Young’s complaint is dismissed.

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ORDER
NOW, THEREFORE, IT IS ORDERED that the defendant’s motion for summary
judgment (Docket # 28) is GRANTED.
IT IS FURTHER ORDERED that the defendant’s motion to strike (Docket # 44) is
GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED. The Clerk of Court is
directed to enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 16th day of February, 2021.
BY THE COURT:
T:
T:

____________
____________
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NANCY JOSEPH
JOSEPH
P
United States Magistrate Judge

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