Carter v. Cal. Grill, LLC

538 F.Supp.3d 714

Tangala CARTER, Plaintiff,

v.CALIFORNIA GRILL, LLC, d/b/a Foxy's Cabaret, Defendant.

1-19-CV-588-RP

United States District Court, W.D. Texas, Austin Division.

Signed May 11, 2021

Kell Ascher Simon, The Law Offices of Kell A. Simon, Austin, TX, for Plaintiff.

Brian Rawson, Roy B. McKay, Stephanie Roark, Hartline Dacus Barger Dryery, LLP, Dallas, TX, Darrell L. Barger, Hartline Dacus Barger Dreyer LLP, Houston, TX, for Defendant.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant California Grill, LLC d/b/a Foxy's Cabaret's ("Foxy's") Motion for Summary Judgment, (Dkt. 18), and all related briefing. Having considered the parties’ submissions, the record, and the applicable law, the Court will deny Foxy's motion for summary judgment.

This is an employment discrimination case. (See Compl., Dkt 1). Plaintiff Tangala Carter ("Carter") alleges that Foxy's discriminated and retaliated against her because of her race in violation of 42 U.S.C. § 1981 (" Section 1981"), Title VII of the Civil Rights Act of 1964, and the Texas Commission on Human Rights Act ("TCHRA"). (Id. at 4–6). Carter worked as a waitress at Foxy's from June 2017 until December 29, 2017, when she resigned. (Carter Decl., Dkt. 21-2, at 1).¹ Carter states that she was forced to resign because Foxy's "refus[ed] to allow [her] to wait on tables" after she complained about the pervasive use of the n-word among her colleagues and difference in treatment between white and Black employees. (Id. at 4–7).

Carter reports that she heard white employees use the n-word at Foxy's "every day, generally to address or refer to a black employee or customer." (Id. at 1). In addition, Carter also found that white employees were treated differently than Black employees at Foxy's. (Id. at 3). Black employees, according to Carter, were required to complete extra cleaning tasks and were not allowed to take breaks as white employees did. (Id. ; Carter Dep., Dkt. 24-1, at 31). Tommy Perkins ("Perkins"), general manager of Foxy's, is "not aware of any instances" in which white employees were treated more favorably than non-white employees, and asserts that Carter "never complained" about this to him. (Perkins Decl., Dkt. 18-3, at 3). In her EEOC charge, Carter alleges that she explicitly complained to Perkins that "white employees were treated much better than the black employees, given easier job duties and [were] talked to less harshly than black employees." (EEOC Charge, Dkt. 21-3, at 2).

In Carter's first month of work, manager Taylor Ratcliff ("Ratcliff"), a white man, allegedly said to her: "what's up [n-word]?" and told her he was "just kidding" when she said his use of the n-word made her uncomfortable. (Carter Decl., Dkt. 21-2, at 1–2; Carter Dep., Dkt. 24-1, at 25). Ratcliff continued to use the n-word to greet Carter, and generally used the word towards her "constantly." (Carter Decl., Dkt. 21-2, at 2). Carter reported Ratcliffe's behavior to Perkins in or around November 2017. (Id. at 4; Carter Dep., Dkt. 24-1, at 26). Perkins says he spoke with Ratcliff about "five to ten minutes" later and counseled him that "we do not use that word." (Perkins Decl., Dkt. 18-3, at 1). After she complained, Carter saw Perkins witness Ratcliff use the n-word around her and in conversation, but Perkins did not "do anything about it" and Ratcliff continued to use the word in Carter's presence. (Carter Decl., Dkt. 21-2, at 6). Ratcliff contends that he never used the n-word "directed at, to, or about Ms. Carter during her shifts at Foxy's." (Ratcliff Decl., Dkt. 18-2, at 1).

Carter contends that another white employee, Ashley, also used the n-word around Carter "frequently." (Carter Decl., Dkt. 21-2, at 6; Carter Dep., Dkt. 24-1, at 23). In or around October 2017, Carter told Ashley that she found it offensive and uncomfortable to be called the n-word by a white person, especially at work. (Carter Decl., Dkt. 21-2, at 6). Ashley responded by telling Carter that she used the n-word with her Black friends, and continued to use the word to refer to Carter, particularly when "she was greeting somebody else, speaking to someone, or explaining something to somebody, and [Carter] was close by, she would use that word." (Id. ). Carter reported Ashley's behavior to one of the managers, Dan, who said he would talk to Ashley. (Id. ; Carter Dep., Dkt. 24-1, at 25). Ashley nevertheless continued to use the world "as much as she could" while talking to Carter. (Carter Decl., Dkt. 21-2, at 6).

A third white employee, Erica, also used the n-word towards Carter "just about every time [they] worked together." (Id. ). Carter similarly reported Erica's use of the word and how it made her feel to Dan, yet Erica continued to use the word around Carter. (Id. at 3). After Carter complained about Erica's behavior to both Dan and Perkins, Erica came up to Carter singing along with a song and sang the n-word "right up in [Carter's] face, in a way that was threatening." (Id. at 6; Carter Dep., Dkt. 24-1, at 32) ("[W]hen you get in somebody face doing this, [n-word, n-word], you know, that[’]s kind of, you know, aggressive to me[.]").

After Carter reported the racism she witnessed at Foxy's to Perkins, her hours were reduced and she was assigned to less lucrative areas of the club, where she could "not earn as much money." (Id. at 4). Carter "had almost no work at all" after management began "preventing [her] from earning tips, [her] primary source of income" by reducing her shifts from five to two shifts per week, reassigning her from the bar to the floor, and assigning waitresses to tables to prevent Carter from serving customers. (Id. at 4–6; Carter Dep., Dkt. 24-1, at 13). Carter says customers told her that "they had been told that if I or the other [B]lack waitress tried to help them, that they were to tell us they were already being taken care of." (Carter Decl., Dkt. 21-2, at 6). Carter heard a manager, Dave Thomas ("Thomas"), tell one customer: "we've already got a waitress for you. Some of the other girls, I'm not going to say that they are lazy, but this is the best waitress," when assigning a white waitress to that customer. (Id. ).

Carter also found that her colleagues and managers began treating her differently after she complained to management about racism at Foxy's—"the employees all made me feel unwelcome and uncomfortable." (Id. at 5). The individuals who she complained about continued to use the n-word when talking to Carter "seemingly on purpose to upset me," and refused to talk to or work with Carter. (Id. ). Perkins also refused to speak with Carter after she complained to him, and began "behaving rudely toward" Carter, in one instance by bumping into her and knocking her phone out of her hand. (Id. ; Carter Dep., Dkt. 24-1, at 32–33; EEOC Charge, Dkt. 21-3, at 2).

On November 7, 2017, Carter contacted Thomas about her hours being cut, and he told her that Foxy's had reduced her hours "because she had not reached out to them sooner" and "had posted something on Facebook about race discrimination." (EEOC Charge, Dkt. 21-3, at 2; Carter Dep., Dkt. 24-1, at 32) In early December 2017, Carter also complained to the manager Dan about "the table assignment issue," but nothing changed after that. (Carter Decl., Dkt. 21-2, at 6). Carter then filed an EEOC charge on December 7, 2017 concerning "the racial slurs and differences in job assignments" at Foxy's. (EEOC Charge, Dkt. 21-3, at 2).²

On December 29, 2017, Carter arrived to Foxy's to find that she did not have any tables to wait because "all of the customers were being assigned to white waitresses." (Id. at 7; Carter Dep., Dkt. 24-1, at 26–27; see also Am. EEOC Charge, Dkt. 18-4, at 2). When she attempted to wait on someone she knew in the VIP section, she was prevented from entering the section by two security guards, while white waitresses were allowed to enter the VIP section. (Carter Decl., Dkt. 21-2, 7; Am. EEOC Charge, Dkt. 18-4, at 2). When Carter told the managers, Thomas and Dan, that she did not want to remain at Foxy's if she was unable to wait on any tables, Thomas told her she would be abandoning her job if she left. (Carter Decl., Dkt. 21-2, at 7; Am. EEOC Charge, Dkt. 18-4, at 3). Carter then told Dan she was resigning from her job because she was not being "allowed to work." (Carter Decl., Dkt. 21-2, at 7). Carter amended her EEOC charge after her resignation. (Am. EEOC Charge, Dkt. 18-4, at 2). On March 11, 2019, the EEOC dismissed Carter's charge because it was "unable to conclude that the information obtained establishes violations of the statutes" but noted that its dismissal "does not certify that the respondent is in compliance with the statues." (EEOC Not., Dkt. 18-6, at 2).

I. LEGAL STANDARDS

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A fact is material if its resolution in favor of one party might affect the outcome of the lawsuit under governing law." Sossamon v. Lone Star State of Tex. , 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted). When reviewing a summary judgment motion, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson , 477 U.S. at 255, 106 S.Ct. 2505. Further, a court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

Once the moving party has made an initial showing...