In re Lang

EDWARD V. LANG, Plaintiff, v. BLOOMIN' BRANDS, INC., and OUTBACK STEAKHOUSE, Defendants.

CASE NO. CV414-196

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

February 9, 2016

ORDER

Before the Court is Defendants' Motion for Summary Judgment (Doc. 27) to which Plaintiff has filed a response (Doc. 31). For the following reasons, Defendants' motion is GRANTED. As a result Plaintiff's claims are DISMISSED. The Clerk of Court is DIRECTED to close this case.

BACKGROUND

Plaintiff is an African-American man who was employed as a busser at an Outback Steakhouse ("Outback")¹ in downtown Savannah, Georgia. (Doc. 27, Attach. 18 at 9.) During Plaintiff's employment, the restaurant was managed by Sarah Miller, the Managing Partner; Jeremy Webb and Joshua Curry, both Managers; and David Schultz the Kitchen Manager. (Doc. 27, Attach. 21 at 13, 114.) The restaurant, in addition to several others, was overseen by Eldridge "Ridge" Sink, II. (Doc. 27, Attach. 19 at 39-40.) As part of Sink's responsibilities, he conducted training on Outback policies and procedures, and also addressed serious issues of reported discrimination and harassment. (Id. at 60-61.)

Plaintiff was hired on March 21, 2009 (Doc. 27, Attach. 4) and, at the time of his hire, acknowledged receipt of the Employee Handbook, which contained the Outback Discrimination and Harassment Policy (id. at 2-4). Plaintiff alleges that his initial hiring as a busser was only a temporary position and that he was told by Mr. Shultz that he would be promoted when a higher paying kitchen position became available. (Doc. 27, Attach. 18 at 38.) When the position became available, however, Plaintiff did not file a formal application and that position ultimately went to Brian Lowry, a white male. (Id. at 38-42.)

In October of 2009, Plaintiff sent a complaint² to Mr. Sink about racist behavior towards African-Americans in the downtown Savannah Outback. (Doc. 27, Attach. 8.) Generally, the complaint alleged (1) "diabolical blatant anti-Black practice[s] at outback steakhouse downtown Savannah"; (2) a "totally improper statement to [Plaintiff] regarding cleaning [a] table"; (3) that Annie Miller³ "talk[ed] loud and unprofessionally to [Plaintiff]" concerning cleaning tables; (4) that once Jeremy Webb "confronted [Plaintiff] . . . in an extremy [sic] negative manner pointing to another table as if [Plaintiff] was his slave"; (5) that on one occasion Mr. Webb "became argumentative with [Plaintiff];" (6) Mr. Webb harassed Plaintiff about not performing his work adequately, (7) that the managers were "using outback to implement a clandestine and/or questionable business practice/ethic toward Blacks;" (8) that Plaintiff was not receiving proper pay; and (9) that Plaintiff was not receiving proper tips or wages. (Id.) Upon receipt of the complaint, Mr. Sink contacted Robert Donovan, an in-house employment attorney for Outback. (Doc. 27, Attach. 9 at 2.) Mr. Donovan directed Mr. Sink to investigate the complaint. (Id.) Mr. Sink spoke with Sarah Miller and Plaintiff as part of his investigation. While Mr. Sink was unable to substantiate Plaintiff's complaints, he did discuss the allegations with Plaintiff. (Id. at 5.) In his discussion, Mr. Sink noted that Plaintiff believed Mr. Webb had improved since his letter. (Id. at 4.) Although Mr. Sink believed that the situation was improving, Plaintiff alleges that, in fact, the situation for African-American employees at Outback deteriorated after his complaint and that Mr. Sink spent very little time with him discussing his complaint. (Doc. 1.)

On January 11, 2010, Plaintiff filed a Request for Assistance with the Equal Employment Opportunity Commission ("EEOC"), simultaneously sending a copy to Defendants. (Doc. 27, Attach. 11.) Plaintiff again alleged that there was a "hostile atmosphere for Blacks" at the restaurant; that Mr. Webb engaged in an argument and became unprofessional with another individual; that Mr. Schultz was assigning African-Americans to multiple jobs, but not their white counterparts; that white employees were allowed to smoke outside while African-American employees were not; that managers allowed white employees to make disparaging remarks about African-American employees; that in a fight between an African-American employee and a white employee only the African-American employee was terminated; and that a white employee was placed in a position for which the Plaintiff was qualified. (Id.) Plaintiff also claimed that one employee, Phillip Meyer, admitted to telling Plaintiff "Yeah, you earn that paycheck, boy!" and that Jeremy Webb used the term "monkey" in front of him. (Doc. 1 at 40-41; Doc. 27, Attach. 13.) Finally, Plaintiff alleged that Mr. Curry told him to take his "black behind and go clean tables." (Doc. 27, Attach. 11; Doc. 27, Attach. 18 at 26-29.)

This time, Mr. Donovan and Mr. Jolly, another senior Outback executive, took the lead in investigating Plaintiff's allegations. (Id.) They were particularly concerned about the "boy" comment (id.), and were informed that Mr. Webb reviewed the incident with Plaintiff and Mr. Meyer, whom had been verbally reprimanded for the comment (id.). Messrs. Donovan and Jolly also investigated Plaintiff's claim that only the African-American employee had been fired as a result of an altercation between an African-American and white employee. (Doc. 27, Attach. 11.) After reviewing the incident, the white employee was also terminated. (Doc. 27, Attach. 20 at 102.) The investigation also revealed other reports of "racial tension," and some claims of sexual harassment in which Plaintiff was not involved (Id. at 41; Doc. 32, Attach. 1 at 10.)

On January 16, 2010, after Plaintiff filed his complaint with the EEOC, one of Plaintiff's co-workers came forward with allegations that Plaintiff had made several sexually inappropriate remarks to her. (Doc. 27, Attach. 20 at 77; Doc. 27, Attach. 10.) Like Plaintiff's second complaint, this claim was escalated to Messrs. Donovan and Jolly. (Id.) During the course of the investigation, other female employees came forward stating that Plaintiff had made sexual comments to them. (Doc. 27, Attach. 20 at 193-95.) Plaintiff admits to calling one of the employees "Next Top Model" and "Miss Pretty Feet," and notes that he commented on one employee's lips, although he also states that none of the women complained to him about his comments. (Doc. 27, Attach. 18 at 165-167.) Mr. Sink attempted to contact Plaintiff to discuss the accusations, however, Plaintiff did not respond. (Id. at 170.) Plaintiff's hours were reduced until he agreed to speak with Sink about the allegations. (Doc. 31, Attach. 3.) Ultimately, Plaintiff's employment was terminated on February 16, 2010 as a result of the sexual harassment claims and his failure to communicate with Mr. Sink. (Doc. 27, Attach. 19 at 122.)

After his termination, Plaintiff requested state unemployment compensation. (Doc. 27, Attach. 6.) Defendants responded, as required under Georgia law, stating that Plaintiff had been terminated due to a violation of company policy. (Doc. 27, Attach. 7 at 2.) After Plaintiff's request was denied (Doc. 1 at 49), he successfully appealed and was awarded unemployment benefits (Doc. 27, Attach 7 at 2). On September 10, 2014, Plaintiff filed this case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Doc. 1.) Plaintiff alleges that he suffered a hostile work environment, and Defendants retaliated against him for bringing the complaints by reducing his work hours and eventually firing him. (Id. at 6.) Plaintiff alleges further that Defendants failure to rehire him and opposition to Plaintiff's unemployment benefits constitutes retaliation. Plaintiff also alleges indirectly that Defendants failed to promote him on the basis of race and that there was violence in the work place. (Id.) Defendants, maintain however, that Plaintiff was terminated as a result of his sexual harassment of co-workers and that Plaintiff did not suffer from a hostile work environment or any violence in his workplace. (Doc. 27.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

According to Fed. R. Civ. P. 56(a), "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim of defense—on which summary judgment is sought." Such a motion must be granted "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." Id. The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory committee notes).

Summary judgment is appropriate when the nonmovant "fails to make a showing sufficient to 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).

As the Supreme Court explained:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if. any, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

The Court must review the evidence and all reasonable factual inferences arising from...