Boshaw v. Midland Brewing Co.

RYAN BOSHAW, Plaintiff, v. MIDLAND BREWING COMPANY, DONNA REYNOLDS, and DAVE KEPLER, Defendants.

Case No. 19-CV-13656

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

March 30, 2021

Honorable Thomas L. Ludington

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' REQUEST FOR ATTORNEY FEES, AND DISMISSING CASE

Plaintiff, Ryan Boshaw, filed a five-count complaint against Defendants Midland Brewing Company, Donna Reynolds, and Dave Kepler on December 12, 2019. ECF No. 1. Two months later, Mr. Boshaw filed an amended complaint. ECF No. 9. He alleges that Defendants discriminated against him because of his sexuality while he was employed by the Midland Brewing Company ("MBC") and then terminated his employment because of his sexuality in violation of Title VII and Michigan's Elliott Larsen Civil Rights Act ("ELCRA"). Id. He also alleges that Defendants Reynolds and Kepler violated the ELCRA through a civil conspiracy to terminate his employment based of his sexuality. Id.

On November 30, 2020, Defendants filed a motion for summary judgment. ECF No. 16. Response and reply briefs were timely filed. ECF Nos. 19, 20. For the following reasons, Defendants' Motion will be granted.

I.

A.

MBC hired Plaintiff Ryan Boshaw on March 2, 2018 to work as a server. ECF No. 16-4 at PageID.220. Over the next 15 months, he was promoted multiple times, ultimately to the position of Front of House ("FOH") Operations Manager. See infra I.B. Once promoted to FOH Operations Manager, his direct supervisor was Defendant Donna Reynolds, the Restaurant Manager. ECF No. 16 at PageID.124-25. Defendant Dave Kepler is the majority owner of MBC. Id.

Prior to his time at MBC, Plaintiff worked for numerous restaurants in the Midland, Michigan area. At the time of his deposition, Plaintiff had celebrated being sober for four years. ECF No. 16-4 at PageID.194-97. On his MBC application, Plaintiff explained that he left multiple restaurants due to professional growth and career opportunities, because "you can't really put that I was terminated for sobriety reasons on an application for a job when you're trying to get your life together." ECF No. 16-4 at PageID.202-03. He also testified that he did not want MBC to know about his prior terminations. Id. at PageID.205.

B.

Plaintiff alleges that after working at MBC for a few months as a server, he and Reynolds discussed his sexual orientation and masculine appearance. Plaintiff testified that Reynolds told him in July 2018 that he would not be promoted unless he removed his relationship status from Facebook and changed his appearance. ECF No. 16-4 at PageID.234; see also ECF No. 9 at PageID.48 "([Reynolds] then suggested that Plaintiff remove his relationship status from his facebook page, remove visible piercings, and style his hair differently. The cumulative effect of these changes would be to hide his status as a homosexual, and appear more stereotypically masculine.").

As Plaintiff explained during his deposition,

[Reynolds] told me that I need[ed] to act more masculine and appear to be more masculine while I am at work or not at work while I am representing Midland Brewing Company and hiding - and telling me that my Facebook, people can log on and see that, and as I'm in a leadership role, that sometimes people do that, and that I should hide it, and I did.

ECF No. 16-4 at PageID.352. Plaintiff testified that after this alleged conversation, he changed his hair style from "spiky" to "combed over." He testified that he maintained the same "combed over" hairstyle from 2018 until the time of his deposition. ECF No. 16-4 at PageID.218-19. Plaintiff acknowledged that he did not maintain any notes from his conversation about Reynolds' request that he act or look more masculine. ECF No. 16-4 at PageID.354. The record also does not include a full review of changes to his Facebook page during this timeframe but rather consists of two lists of posts that appear to be selected from a Facebook activity report. See ECF Nos. 16-15; 16-20; 16-38. He believes the "Reynolds Conversation" occurred before his "very first promotion." ECF No. 16-4 at PageID.364. He testified that no one ever discussed his hairstyle or masculinity after the conversation with Reynolds. ECF No. 16-4 at PageID.365-66.

On September 11, 2018 Reynolds promoted Plaintiff to shift lead.¹ ECF No. 16-4 at PageID.235. In November 2018, he was promoted to floor leader. ECF No. 16-4 at PageID.243.

Plaintiff testified that two months after being promoted to floor leader, he "had no work/life balance . . . and everything that was going on at Midland Brewing Company was just super overwhelming." ECF No. 16-4 at PageID.253. He claimed that "[MBC] was just weighing on [him] every single day that [he] was there." Id. And so, in January 2019, Plaintiff submitted his letter of resignation to Reynolds. Reynolds, however, persuaded him to remain at MBC. ECF No. 16-4 at PageID.251-52. Afterward, he texted Reynolds, "I will start working on thinking beforereacting. I love my job at MBC and I love having you as my mentor." ECF No. 16-4 at PageID.253-54; ECF No. 16-6 at PageID.392. He testified during his deposition that he meant what he said. ECF No. 16-4 at PageID.254. Later that January, Plaintiff was promoted to Front of House ("FOH") Operations Manager, the second highest position in the restaurant. ECF No. 16-4 at PageID.255; ECF No. 16-22.

As FOH Operations Manager, Plaintiff's duties included preparing weekly staff schedules, confirming that opening and closing duties are completed, "assist[ing] in training new employees," reconciling the cash drawer, reporting personnel, customer, or equipment issues to Restaurant GM or Property Manager, resolving customer concerns, and "enforc[ing] and follow[ing] all restaurant rules and processes." ECF No. 16-2 at PageID.154. The job description also provides the FOH Operations Manager shall "manage themselves and others in a professional manner" and have "impeccable personal hygiene as well as high work and safety standards." Id.

In February 2019, only a few weeks after being promoted to FOH Operations Manager, Plaintiff was offered employment at Old Chicago, another restaurant located in Midland. ECF No. 16-4 at PageID.259. He spoke with Reynolds and Kepler about the offer, who in turn offered to increase his salary to stay at MBC. ECF No. 16-4 at PageID.259-60, 62. Plaintiff also testified that during this February 2019 meeting with Kepler, Plaintiff complained about his July 2018 conversation with Reynolds regarding Plaintiff's masculinity and sexual orientation. ECF No. 16-4 at PageID.367-68. He testified that Kepler appeared upset about his report and explained, "I will make things right with [Reynolds], I will have [Reynolds] make things right with you." ECF No. 16-4 at PageID.369-70. He also encouraged Plaintiff to stay at MBC. Id. Plaintiff further testified that Kepler did not tell Plaintiff to change his appearance or hide anything about his sexual orientation. ECF No. 16-4 at PageID.375-76.

Plaintiff had a meeting with Reynolds in February 2019 after his discussion with Kepler. He testified that this conversation with Reynolds and subsequent email communications with Kepler were positive. ECF No. 16-4 at PageID.264-65. As of April 27, 2019, Kepler and Plaintiff "had a discussion about [Plaintiff] continuing to work for MBC through at least the new year." ECF No. 16-4 at PageID.281.

The record includes multiple text message and email discussions between Plaintiff and Reynolds throughout his time at MBC. On June 11, 2018, Plaintiff exchanged text messages with Defendant Donna Reynolds, describing her as "the best boss ever." ECF No. 16-4 at PageID.229-31; ECF No. 16-5 at PageID.385. Around December 2018, he texted Reynolds and told her, "You are honestly one of the best bosses I've ever had, and not only to me but to our entire staff and I feel like sometimes it's taken for granted." ECF No. 16-4 at PageID.246. He testified during his deposition that he meant what he wrote. Id.

C.

The MBC handbook states,

MBC shall regard an employee's job abandoned and the employee terminated when the employee is absent from work without official leave approval from management for one or more consecutive shifts.

ECF No. 16-4 at PageID.222. The handbook further states, "Extremes in hairstyles, makeup, jewelry, and clothing are not permitted at work." ECF No. 16-4 at PageID.223. Finally, it provides, "[h]air should be clean, neatly groomed and pulled away from face." ECF No. 16-4 at PageID.223.

Plaintiff testified that he "probably" wore earrings to his MBC interview, which at the time included two studs and a bar through his right ear. ECF No. 16-4 at PageID.218-19. In August 2018, Plaintiff texted Reynolds,

Do you think I should take my lobe earrings out too? I don't have a problem either way. I was thinking of ways to cover my neck tattoo, but I've honestly been wantingto look into laser removal and have been thinking about it for the last year or so. Maybe around tax return season I'll be able to start that. I was not in the right mind when I got that done, the tattoo artist should've not done that lol. I've been wanting it removed even before I worked at MBC, for professional reasons. But let Dave know that I'll be working on that also and I am on the same page. Thanks again Donna, you're awesome.

ECF No. 16-5 at PageID.389. Reynolds responded, "Wow Ryan. Don't do anything drastic! Lol! I appreciate the thought though. Maybe yes on the ears and then we can talk about the rest." ECF No. 16-5 at PageID.389. Plaintiff responded, "Okay perf! But for real Donna. I can't be a 30 year old with a neck tattoo. [neutral face emoji]." ECF No. 16-5 at PageID.390.

D.

Despite Plaintiff's quick rise at MBC, his work was not without criticism. In January 2019, there was an issue with an employee's hair being found in a customer's food, as well as an instance where the point of sale system went...