Sharqawi v. Kirby Co.

675 F.Supp.3d 798

Ibrahim SHARQAWI, Plaintiff, v. KIRBY COMPANY, et al., Defendants.

Case No. 1:20-cv-00271

United States District Court, N.D. Ohio, Eastern Division

Signed May 30, 2023

Caryn M. Groedel, Law Office of Caryn Groedel, Boca Raton, FL, Patrick J. Perotti, Dworken & Bernstein, Painesville, OH, for Plaintiff.

John W. Hofstetter, Ryan J. Morley, Littler Mendelson, Cleveland, OH, Michael N. Ungar, Sara Smoter Dorland, Joseph J. Brennan, Ulmer & Berne, Cleveland, OH, for Defendants Kirby Company, Scott Fetzer Company.

MEMORANDUM OPINION AND ORDER

BRIDGET MEEHAN BRENNAN, UNITED STATES DISTRICT JUDGE

Before this Court is the motion for summary judgment filed by Defendants Kirby Company and Scott Fetzer Company (collectively, "Kirby"). (Doc. No. 61.) Plaintiff Ibrahim Sharqawi opposed this motion (Doc. No. 65), and Kirby filed a reply brief in support (Doc. No. 66). For the reasons that follow, Kirby's motion for summary judgment is GRANTED.

I. Background

A. Relevant Factual Background

1. The Parties Relationship Prior to Executing the Divisional Supervisor Agreement

Defendant Kirby Company was an unincorporated division of Defendant Scott Fetzer Company ("Scott Fetzer") at all times relevant to this litigation. (Doc. No. 61-2 at 921.)¹ Kirby manufactures, assembles, and sells home cleaning systems and related accessories to consumers through in-home demonstrations conducted by a network of distributors. (Id. at 976.)

Plaintiff is of Middle Eastern descent. (Doc. No. 61-3 at 1103; Doc. No. 61-1 at 867.) He was affiliated with Kirby from 1990 until October 8, 2018. (Doc. No. 61-3 at 1112; Doc. No. 61-2 at 1040.)

In December 2002, Plaintiff and Kirby executed the Factory Distributor Agreement. (Doc. No. 61-3 at 1114-15.) The agreement authorized Plaintiff to own and operate a Kirby distributorship. (Id. at 1115.) In 2005, Kirby promoted Plaintiff to the Division Manager role. (Id.) With this new title - in addition to owning and operating his distributorship - Plaintiff helped train other distributors, distributors' employees, and subcontractors. (Id.)

2. The Divisional Supervisor Agreement

Plaintiff became a Divisional Supervisor on November 1, 2010. (Id. at 1114.) As part of this promotion, Plaintiff and Kirby executed the Divisional Supervisor Agreement ("DSA"). (Doc. No. 1-4.) Kirby also required Plaintiff to dissolve his distributorship before obtaining the Divisional Supervisor title and benefits. (Doc. No. 61-3 at 1119.)

Pursuant to the DSA, Kirby guaranteed Plaintiff $20,833 a month, which amounted to a $250,000 yearly salary. (Doc. No. 1-4 at 27.) Plaintiff was also entitled to commission payments if his yearly sales commissions exceeded his salary. (Id.) In another clause (hereinafter referred to as the "Provision"), the parties agreed that Plaintiff would be an "independent contractor[ ] and that neither is the agent nor the employee of the other for any purpose." (Id. at 23, ¶ 8.)

Bud Miley originally supervised Plaintiff in this role. (Doc. No. 65 at 1383; see also Doc. No. 61-2 at 911-13.) Miley made two derogatory comments regarding Plaintiff's status as a Middle Eastern person. (Doc. No. 61-3 at 1103-04.) The first time Miley said, "[Plaintiff] is fine. Just don't call him a Paki. He gets really upset." (Id. at 1103.) The second time occurred at another divisional supervisor meeting where Miley pointed a laser at Plaintiff's head and stated, "[Plaintiff] gets really pissed off when you call him a Paki." (Id. at 1104.) On April 16, 2014, Miley sent an email (the "Office Requirement Email") stating that all Divisional Supervisors are required "to operate from a professional office location separate from their residence," which was "expected to be open for business and properly staffed at a minimum from Monday - Friday, 9am - 5pm." (Doc. No. 61-2 at 1041.) The Office Requirement Email also explained, among other things, that Divisional Supervisors were expected to "work from the office location when [ ] not on the road or on vacation." (Id.)

3. Reitmeier, CBD Dispute, and Termination

In January 2018, Kevin Reitmeier replaced Miley as Plaintiff's supervisor. (Doc. No. 65 at 1383; see also Doc. No. 61-2 at 963.) Reitmeier became concerned about Plaintiff's and other Kirby workers' participation in the CBD industry. (Doc. No. 61-3 at 1100.) He asked Plaintiff to investigate other workers' involvement in the CBD industry. (Id. at 1127.) He also made various demands to Plaintiff via phone calls and text messages. (E.g., id. at 1130.) Reitmeier called Kirby distributors to ensure that Plaintiff had visited them. (Id.)

On numerous occasions, Plaintiff contacted Scott Fetzer's General Counsel, David Lamb, about Reitmeier's behavior. (Doc. No. 61-2 at 904-05; Doc. No. 61-3 at 1102, 1138.) Plaintiff informed Lamb that Reitmeier was mistreating him due to his ethnic background. (Doc. No. 61-2 at 905; Doc. No. 61-3 at 1138.) Plaintiff also told Lamb that he was merely the owner of a CBD store, which his daughter operated. (Doc. No. 61-3 at 1137; Doc. No. 61-2 at 924-25.)

Lamb and Kirby hired a private investigator to determine Plaintiff's involvement with the CBD industry. (Doc. No. 61-2 at 924, 929.) The investigator followed Plaintiff on Friday, August 17, 2018, through Sunday, August 19, 2018. (Doc. No. 61-2 at 1024.) After doing so, the investigator informed Kirby that Plaintiff worked at a CBD store all day on Friday and for a multi-hour period on Saturday and Sunday. (Id.)

Plaintiff retained counsel. (Doc. No. 68-11.) On September 24, 2018, his counsel informed Lamb that Plaintiff planned on "pursuing his legal rights and remedies." (Id. at 1642.) Kirby sent Plaintiff a letter terminating the DSA on October 8, 2018. (Doc. No. 61-2 at 1040.)

On October 23, 2018, Kirby implemented a policy requiring the termination of any "Factory Distributor who owns, or operates, or whose spouse, or significant other or immediate family member, owns or operates, a business that sells cannabinoid products including CBD." (Doc. No. 61-2 at 1045.)

B. Relevant Procedural Background

1. Pre-Summary Judgment

Plaintiff initiated this action against Kirby on February 6, 2020. (Doc. No. 1.) Kirby moved to dismiss the complaint for failure to state a claim (Doc. No. 4), which the Court granted in part and denied in part (Doc. No. 8). Afterwards, Kirby Company filed a breach of contract counterclaim against Plaintiff. (Doc. No. 12.)

On April 26, 2021, after receiving leave from the Court, Plaintiff filed an amended complaint. (Doc. No. 20; 4/26/2021 Non-Document Order.) Kirby once again moved to dismiss the complaint for failure to state a claim (Doc. No. 21), which the Court granted in part and denied in part (Doc. No. 38). In this Order, the Court granted Plaintiff leave to amend Count Five of his amended complaint. (Id. at 474.)

Plaintiff filed his second amended complaint on September 14, 2021. (Doc. No. 39.) The complaint contains Five Counts: breach of contract (Count One), unjust enrichment (Count Two), Title VII national origin discrimination premised on Kirby's termination decision and creation of a hostile work environment (Count Three), Title VII retaliation for reporting discriminatory conduct (Count Four), and Title VII retaliation based on Kirby Company's filing of a counterclaim (Count Five). (Id.) Kirby moved to dismiss Count Five (Doc. No. 42), which the Court granted (Doc. No. 53).

2. Summary Judgment Briefing

On June 14, 2022, Kirby moved for a month-long extension of the June 17, 2022, dispositive motion deadline. (Doc. No. 58.) The Court denied the motion. (Doc. No. 59.)

Kirby timely filed a summary judgment motion on all remaining claims in Plaintiff's operative complaint. (Doc. No. 61.)

On July 5, 2023, Plaintiff filed a motion for leave to file his summary judgment motion on the counterclaim instanter. (Doc. No. 63.) The Court denied this motion. (Doc. No. 64.)

Plaintiff timely opposed Kirby's summary judgment motion. (Doc. No. 65.) The opposition brief, however, was 31 pages - 11 pages over Local Rule 7.1's 20-page limitation. (Id. at 1411.) Plaintiff also failed to authenticate the exhibits attached to his brief. (See id.) Kirby moved to strike the unauthenticated exhibits and pages 21-31 of the brief. (Doc. No. 67 at 1538.) Plaintiff untimely opposed Kirby's motion to strike. (Doc. No. 68.) Plaintiff's revised opposition brief, attached to the untimely opposition to the motion to strike, was 23 pages, despite including a Local Rule 7.1 certificate of compliance. (Doc. No. 68 at 1573-74.) Two days later, Plaintiff filed a motion for leave to file a 24-page opposition brief. (Doc. No. 69.) Kirby filed a reply brief in support of its motion to strike (Doc. No. 70), and Plaintiff filed a sur-reply to this reply brief (Doc. No. 71).

The Court scheduled an in-person hearing for October 13, 2022, to address the briefs on Plaintiff's numerous attempts at filing an opposition, with lead counsels' and the parties' attendance being mandatory. (9/8/2022 Non-Document Order.) On September 12, 2022, Kirby filed a stipulated motion to continue the hearing, which the Court granted and rescheduled for October 24, 2022. (Doc. No. 72; 9/13/2022 Non-Document Order.)

The October 24, 2022, hearing was continued to October 31, 2022, because Plaintiff and his lead counsel failed to attend. (10/24/2022 Non-Document Order.) At the hearing, the Court ordered additional briefing on the admissibility of the unauthenticated exhibits attached to Plaintiff's original opposition brief. (10/24/2022 Minutes of Proceedings.)

On October 31, 2022, the Court heard from lead counsel and determined that Plaintiff did not file an opposition brief that complied with Local Rule 7.1 despite attempting to do so three times. (See 10/31/2022 Non-Document Orders.) Based on the Court's findings and for the reasons stated on the record, the Court determined that it only would consider the first 20 pages of Plaintiff's original and timely submitted opposition...