Cherry v. Premier Prints, Inc.
| Docket Number | Civil Action 1:21-CV-59-SA-DAS |
| Decision Date | 23 August 2022 |
| Parties | DAVID L. CHERRY PLAINTIFF v. PREMIER PRINTS, INC. |
| Court | U.S. District Court — Northern District of Mississippi |
On March 24, 2021, David L. Cherry initiated this civil action by filing his Complaint [1] against Premier Prints, Inc. Now before the Court is Premier Prints' Motion for Summary Judgment [38]. Having reviewed the parties' filings, as well as the applicable authorities, the Court is prepared to rule.
David L. Cherry is a homosexual male who was previously employed by Premier Prints, a fabric manufacturing company located in Sherman, Mississippi. Premier Prints, a relatively small company of approximately 30 employees, was jointly started around 1991 by three brothers- Norman “Zeke” Hodges, Johnny Hodges, and Billy Hodges-each of whom owned one-third of the company.[1] Primarily, the company manufactures fabric and sells it across the United States.
Cherry began his employment with Premier Prints in November 1996. Zeke Hodges, who serves as president of the company, made the decision to hire Cherry. Throughout his employment, Cherry held numerous positions with the company. In approximately 2004 or 2005, he transitioned from the production side of the company to the sales side and became both the General Manager and the Sales Manager. Although taking on more of a sales role at this time, he was still very involved with production. At all times pertinent to this lawsuit, Cherry was the company's highest ranking non-equity employee.
From the time Cherry's employment commenced until around 2013 Premier Prints' sales volume and profits consistently improved each year. In 2013 (the high-water mark), the company had a sales volume of $23,204,219 and a profit of $5,950,018; however, it experienced a dramatic decrease over the next several years. By comparison, four years later in 2017, the company's sales volume had dropped to $13,610,093 and profits had decreased to $1,649,010.
This is where the parties' respective versions of events diverge. On the one hand, Cherry testified that the decrease in sales and profits could be linked to increased foreign competition in the market. He stated that the entire industry experienced similar diminished sales and profits. On the other hand Premier Prints contends that the decrease was due to a strategy Cherry had implemented. The company frames that issue as follows:
Premier's sales and profits had been dropping at an alarming rate since 2013. The initial fundamental issue between Premier's owners and Cherry was the disagreement between Billy and Cherry on the direction of the company. Billy felt that Premier should continue to make more basic, lower cost products, that he felt was responsible for Premier's earlier success. Cherry wanted to, in Billy's words, “reinvent[] Premier Prints” by running more complex and costly designs. These concerns were echoed by Zeke, but it seems that the principal actors in this ongoing dispute were Billy and Cherry. This issue continued for some time until Billy finally acquiesced. However, in acquiescing, Billy told Cherry that he would
[39] at p. 5 (internal citations omitted).
In March of 2018, the owners removed certain operations responsibilities from Cherry and directed him to concentrate more exclusively on sales. His compensation was restructured from being based on production to a sales commission structure. As with the reason for the company's decreased sales, the reason for the change in Cherry's job responsibilities and his pay structure is disputed. Premier Prints contends that the change was the product of Cherry's ongoing lack of commitment, communication, and engagement. In fact, Zeke testified that he told Cherry around this time that he was “headed down the wrong direction.” [38], Ex. 2 at p. 7. Conversely, Cherry avers that he had various conversations with the owners and that they ultimately reached the conclusion to shift him to sales “so he could find out what the problems were [with the company's sales] and talk to the customers.” [45] at p. 7.
In September 2019, Cherry married his husband, Cameron Horn. Cherry contends that, prior to September 2019, nobody at Premier Prints knew that he was homosexual and that, once word of his marriage spread across the company, everyone “seemed shocked.” [44], Ex. 1 at p. 18. He avers that he was scared to reveal his sexual orientation to anyone at Premier Prints because he knew that Zeke had a negative opinion of homosexuals. Cherry addressed that issue in detail in one of his written discovery responses, stating as follows:
I knew [Zeke] had a negative opinion of gay men because he told me multiple times about his former boss that was gay and that it disgusted him. He also frequently made derogatory remarks behind the backs of men that either were gay or that he perceived as gay. Examples are Greg Morgan and Bill Butchkavitz. His favorite remarks were, “Should I turn queer or get a sex change?” And he would take fabric samples and hold them in front of his genitals and say, “Do you like the samples now?” He did this in front of Clint Wright and Michael Hodges as well as me. The customers never knew he was making those statements. He also slapped me on my buttocks as a congratulations. All of which made me very uncomfortable and afraid for him to find out that I am a homosexual. He also made very primitive and degrading remarks about Cliff Walters when he was an employee. I knew he would have a negative response if he ever found out that I am a gay man.
[44], Ex. 5 at p. 4.
Cherry expounded on these allegations in his deposition, testifying that Zeke made these comments “periodically through the years” at various trade shows, including Las Vegas, Los Angeles, and High Point. [44], Ex. 1 at p. 18. Further, when asked about whether he thought Zeke was acting maliciously when making those comments, Cherry stated: Id. at p. 19. As to Cherry's allegations, Zeke admitted that he “put fabric samples in front of [his] genitals and said ‘do you like the samples now'” on one occasion, but he said that it was “just a joke to Michael [Hodges].” [38], Ex. 2 at p. 8.
According to Cherry, after everyone at the company learned of his marriage to Cameron, his fears about Zeke and others learning about his sexual orientation ultimately became a reality. He testified that his relationship with Zeke changed drastically after Zeke learned of his marriage- in particular, he testified that, despite previously having enjoyed a good relationship with Zeke, they rarely communicated from that point forward.
Premier Prints points to two events which occurred in late 2019 that it considered critical. The first event involved a company called “Chapter Three,” which was one of Premier Prints' biggest accounts. Zeke, Cherry, and Chapter Three's owner had a lunch meeting, during which Zeke expressed his sincere appreciation for Chapter Three's continued business. However, unbeknownst to Zeke, Chapter Three's account was significantly past due. Premier Prints contends that Cherry was aware of Chapter Three's overdue account status but intentionally did not advise Zeke of the same. Cherry testified to the contrary, specifically testifying he was unaware of the issue at the time of the lunch meeting.
Also, in November 2019, Cherry took Cameron with him to the trade show in High Point, North Carolina. During the trade show, Cameron met with Premier Prints' customers and, at least arguably, appeared to act on behalf of the company. Cherry admittedly did not seek permission from the owners to take Cameron to the show. By all accounts, Billy and Zeke were both outraged when they learned that Cameron had attended the trade show. Although they admit that taking a spouse to a trade show does not violate any written company policy, Billy testified that it was “general knowledge” that doing so was unacceptable. [38], Ex. 1 at p. 5.
On April 13, 2020, Billy and Zeke advised Cherry that he was being laid off. During that meeting, Zeke specifically told Cherry “I don't know you anymore.” [44], Ex. 1 at p. 21. Billy testified that he was the one who made the ultimate decision to lay off Cherry. Although he was laid off, as opposed to being terminated, Cherry was never rehired at Premier Prints.
Cherry filed his Complaint [1] on March 24, 2021, alleging that Premier Prints discriminated against him because of his sexual orientation. Through the present Motion [38], Premier Prints seeks dismissal of that claim.
Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P 56(a). Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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.” Nabors v. Malone, 2019 WL 2617240, at *1 (N.D. Miss. June 26, 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
“The moving party ‘bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material...
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