Graber v. Mad Brewer Inc.

• Decision Date: 24 February 2011
• Docket Number: No. 3:09 CV 299.,3:09 CV 299.
• Citation: 773 F.Supp.2d 765
• Parties: Corry L. GRABER, Plaintiff,v.MAD BREWER, INC., d/b/a Anthony's Old State Ale House, Defendant.
• Court: U.S. District Court — Northern District of Indiana

773 F.Supp.2d 765

Corry L. GRABER, Plaintiff,

v.MAD BREWER, INC., d/b/a Anthony's Old State Ale House, Defendant.

No. 3:09 CV 299.

United States District Court, N.D. Indiana, South Bend Division.

Feb. 24, 2011.

Doug A. Bernacchi, Attorney at Law, Michigan City, IN, for Plaintiff.

Anne L. Eisele, Dean E. Leazenby, Timothy S. Shelly, Warrick and Boyn, LLP, Elkhart, IN, for Defendant.

OPINION and ORDER

JAMES T. MOODY, District Judge.

Defendant Mad Brewer, Inc. (“Mad Brewer”) has moved for summary judgment (Def.'s Mot. for Summ. J., DE # 19; Def.'s Br. in Supp. of Mot. for Summ. J., DE # 20), plaintiff Corry L. Graber (“Graber”) has filed a response in opposition (Pl.'s Resp. in Opp'n. to Summ. J., DE # 23), and Mad Brewer has filed a reply. (Def.'s Reply to Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J. 1, 5, DE # 24.) For the reasons explained below, the motion will be granted.

I. BACKGROUND

First, the court must resolve the parties' argument concerning what facts this court should consider in addressing the motion for summary judgment. In compliance with the Local Rules of the United States District Court for the Northern District of Indiana Rule 56.1,¹ Mad Brewer's brief in support of its motion for summary judgment included a statement of material facts with appropriate citations to affidavits and other admissible evidence. (Def.'s Br. 1–9.) ² According to RULE 56.1, Graber should have included a section in her response labeled “Statement of Genuine Issues” that included “all material facts as to which it is contended there exists a genuine issue which needs to be litigated” and made “appropriate citations to discovery responses, affidavits, depositions, or other admissible evidence.” Local Rule of the U.S. Dist. Court for N.D. Ind. Rule 56.1 (2009). In deciding the motion for summary judgment, a court should “assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy” unless the nonmoving party has controverted these facts, with support from discovery materials, in the “Statement of Genuine Issues.” Id.

Instead of adhering to RULE 56.1, Graber included a section labeled “Statement of Material Facts in Dispute” (Pl.'s Resp. 1–2), which responds to Mad Brewer's statement of the facts, but does not provide citations to any discovery materials and a “Statement of the Facts: Summary of Facts and Response to Defendant's Facts” which provides Graber's version of the facts and citations to discovery materials, but does not directly address much of Mad Brewer's version of the facts. ( Id. at 2–8.) In the first section, Graber states “all issues of material facts are disputed.” ( Id. at 1.)

In its reply, Mad Brewer argues that there are no material facts in dispute because Graber's “Statement of Material Facts in Dispute” does not state the facts she disputes and does not specifically cite to discovery materials. (Def.'s Reply 5.) Mad Brewer points to twelve categories of facts that it argues the plaintiff has admitted are undisputed by her failure to properly respond under Rule 56.1.

The court agrees with part of Mad Brewer's argument—Graber cannot establish that facts are in dispute by simply stating that they are. Instead, she must point to admissible pieces of discovery that place the defendant's version of the facts into dispute. Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir.2008) (stating that the non-moving party must identify “specific facts demonstrating that there is a genuine issue for trial”); Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 563 (7th Cir.2002) (“As we have stated over and over again, allegations of the mere existence of some alleged factual dispute are not enough to preclude summary judgment.”).

However, the court rejects the view that Graber has failed to place any of the material facts listed by Mad Brewer into dispute. In coming to this conclusion Mad Brewer appears to only consider Graber's complete lack of citations to pieces of discovery in the section “Statement of Material Facts in Dispute.” However, the section of Graber's brief entitled “Statement of the Facts: Summary of Facts and Response to Defendant's Facts” does make citations to a piece of discovery, namely Graber's affidavit. Although Graber's labeling in her response is not technically correct, she has still substantially complied with Rule 56.1, and it is clear that both portions of her brief were intended to address the material facts she disputes. Cohen v. Orthalliance New Image, 252 F.Supp.2d 761, 764–65 (7th Cir.2003). Therefore, the court will consider both sections as Graber's account of the facts in dispute.

When Graber has cited to a portion of the discovery materials to support her dispute, the court will consider those facts disputed. Graber's general assertions that facts are in dispute are not sufficient to put those facts into dispute. When Graber has either completely failed to respond to a discovery-supported assertion of fact or has not provided any discovery citations to refute the assertion, the court will make note of that and accept that Graber has admitted that this fact is not in dispute. Local Rule of the U.S. Dist. Court for N.D. Ind. Rule 56.1 (2009).

Further, Graber has not contested the authenticity of any of the documents that Mad Brewer has offered in support of its motion for summary judgment. Therefore, the court accepts the authenticity of those documents for the purposes of this summary judgment motion and will consider the facts within them to be undisputed when Graber has not raised specific arguments supported by discovery to contest them. See Metro. Life Ins. Co., 297 F.3d at 563.

Accordingly, the facts discussed herein are either undisputed, as explained above, or, when in dispute, resolved in favor of the non-moving party, Graber. See Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir.1999). The court has included some facts as Mad Brewer sees them in order to explain the parties' dispute.

A. Parties

Mad Brewer is a corporation and Eric Brewer is its sole shareholder ³ and president. (Eric Brewer Aff. ¶ 4, Def.'s Exh. to Br. in Supp. of Def.'s Mot. for Summ. J., DE # 20–2.) In 2008, Mad Brewer negotiated and entered into a licensing agreement with Mad Anthony's Brewing Company (“Mad Anthony's”) to open a brew pub restaurant in Elkhart, Indiana. ( Id. ¶ 5.) Pursuant to the licensing agreement, Mad Brewer could use the Mad Anthony's name, its line of beers, and its menu. ( Id. ¶ 6.) The licensing agreement mandated that Mad Brewer meet certain quality standards and offered Mad Brewer the opportunity to utilize certain services offered by Mad Anthony's such as accounting and payroll services. ( Id.) Mad Anthony's was headquartered in Fort Wayne and had two other locations in Warsaw and Auburn, Indiana. ( Id. ¶ 2.) Mad Brewer was opened to the public on December 16, 2008. (Eric Brewer Aff. ¶ 14.) Apart from her assertions that Neels and Stucky were partners in Mad Brewer, Graber does not dispute these facts.

Graber was the general manager for Mad Brewer from on or about July 31, 2008, to early January, 2009. ( Id. ¶¶ 12, 22.)

B. Process of hiring a general manager for Mad Brewer

Eric Brewer made all of the significant hiring decisions for Mad Brewer, including decisions regarding the employment of management staff. ( Id. ¶ 4.) Eric Brewer began interviewing candidates for the position of general manager at Mad Brewer in May, 2008. (Eric Brewer Aff. ¶ 9.) The general manager's duties were to oversee Mad Brewer's day-to-day operations, manage personnel, keep financial records, manage and procure inventory and supplies, prepare and submit payroll, and calculate and reconcile cash and charge receipts on a daily basis. ( Id.)

On July 1, 2008, Ed Tribble (“Tribble”), a male, was hired into the position. ( Id.) After about four weeks, Tribble was fired for failure to adequately perform. ( Id.) In late July, Eric Brewer hired Graber as general manager at an annual salary of $47,000 with an annual potential bonus of $5,000. ( Id.) Mad Brewer's restaurant opened on December 16, 2008, with Graber as the general manager. ( Id.)

As described further below, Brett Jones (“Jones”), the assistant manager ⁴ under Graber, was promoted to the role of general manager after Graber was terminated. (Eric Brewer Aff. ¶ 23.) Jones' annual salary was $27,000 per year. ( Id.) Jones was terminated for sub-standard performance several months after he was hired. ( Id. ¶ 25.) Graber does not dispute these facts. Graber does not dispute any of the facts in this section.

C. Jeff Neels

According to Graber, Jeff Neels (“Neels”) was a partner in Mad Brewer. (Graber Aff. ¶ 11.) Mad Brewer refutes this assertion but does not clarify Neels' role. Graber attests that Jones always complained to Neels and “everyone else had to suffer.” ( Id. ¶ 9.) She states that Jones “wouldn't work the hours that was expected from the managers and Jeff—would always make allowances or adjustments for him which none of the other managers were entitled to.” ( Id.) Graber claims that Neels and Stucky “have always gone to Brett around me and never to me on issues that were my responsibility.” ( Id. ¶ 11.) Graber states that she called Neels once about compensation for employees on New Year's Eve, and Neels responded by calling Jones to discuss the issue instead. ( Id. ¶ 14.) She states that she asked Neels not to do that because Jones “does what he wants, when he wants, and does not listen to any one.” ( Id.) She states that Neels agreed, but then did not stop. ( Id.) She talked to Eric Brewer about the situation and he told her to bide her time and Neels and Jones would be gone. ( Id.)

Graber states in her affidavit that the night before she was terminated, she asked Neels what he thought her strong and weak points were and how she could improve her job performance. (Graber Aff. ¶ 14.) She states that his response was...