Myers v. Toojay's Mgmt. Corp..

• Decision Date: 17 May 2011
• Docket Number: No. 10–10774.,10–10774.
• Citation: 640 F.3d 1278,22 Fla. L. Weekly Fed. C 2063,54 Bankr.Ct.Dec. 210,32 IER Cases 398,65 Collier Bankr.Cas.2d 1221
• Parties: Eric MYERS, Plaintiff–Appellant,v.TOOJAY'S MANAGEMENT CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

640 F.3d 1278

65 Collier Bankr.Cas.2d 1221

54 Bankr.Ct.Dec. 210

32 IER Cases 398

22 Fla. L. Weekly Fed. C 2063

Eric MYERS, Plaintiff–Appellant,

v.TOOJAY'S MANAGEMENT CORPORATION, Defendant–Appellee.

No. 10–10774.

United States Court of Appeals, Eleventh Circuit.

May 17, 2011.

Daniel Arturo Perez, Bogin Munns & Munns, PA, Melbourne, FL, for Plaintiff–Appellant.James H. Wyman, Cheryl Wilke, Hinshaw & Culbertson, LLP, Ft. Lauderdale, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, CARNES, and HILL, Circuit Judges.CARNES, Circuit Judge:

A section of the Bankruptcy Code prohibits employers from taking certain actions against people who are or have been in bankruptcy. 11 U.S.C. § 525. The first subsection of that section applies to government employers and provides that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. Id. § 525(a). The second subsection provides that a private employer may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground. Id. § 525(b). The primary issue this appeal presents is whether that second subsection prohibits a private employer from denying employment to an individual on the ground that he is or has been in bankruptcy, even though it, unlike the first subsection, does not say that. Elementary principles of statutory construction and common sense persuade us to answer that question in the negative.

I.

A.

In January 2008 Eric Myers filed a Chapter 7 bankruptcy petition with a bankruptcy court in North Carolina. The next month he moved from North Carolina to central Florida looking for a fresh start and found work as a shift supervisor at a Starbucks coffeehouse. In May 2008 the bankruptcy court discharged Myers' debts. While still a supervisor at Starbucks, Myers came across an advertisement for a managerial position at a local TooJay's Gourmet Deli restaurant. He expressed his interest in the position to Thomas Thornton, the regional manager of TooJay's Management Corporation.

In mid-July 2008 Myers had an interview with Thornton. According to Myers, he was told during the interview that he would be paid about $55,000 per year, that there was a bonus plan, and that there were other benefits such as health insurance. At the end of the interview a two-day on-the-job evaluation of Myers was scheduled, beginning Thursday, July 31, 2008 and ending Friday, August 1. Myers was to receive $100 pay for each of those two days, which was less than half of what he would have been paid if he had actually been hired for the position at his proposed salary.¹ Myers later explained that the on-the-job evaluation “was just so that we could both get a feel for the restaurant, that I would make sure I was comfortable doing it there, that [Thornton] was comfortable with me and the other restaurant managers were comfortable with me.”

On July 31, 2008, the first day of the on-the-job evaluation, Myers observed the operation of the restaurant, including its kitchen and its deli, to see how TooJay's operated. Later Myers did some kitchen prep work and made a few deli sandwiches. He also completed several personnel forms: a personnel action form, federal tax forms, a medical history form, a payroll deduction authorization form, a form acknowledging receipt of the employee handbook, a driver safety form, and a federal form to verify employment eligibility.

The top of the personnel action form asked the TooJay's manager or corporate officer to “Check Appropriate Box(s).” The options given, among others, were “New Hire,” “Rehire,” and “Other (explain).” On Myers' form, the “Other(explain)” box was checked and the explanation written next to it was “OJE.” Below that, information about Myers was written in the “Employee Information” area, and in the remarks section was written: “2 days of OJE (on the job evaluation) at 100.00 per day.” Myers filled out his personal information on the other forms and signed where necessary. Many of the spaces that he filled out or signed were designated on the forms as “Employee Name” or “Employee Signature.”

On August 1, 2008, the second day of Myers' on-the-job evaluation, he spent most of the day in the kitchen. He also completed more personnel forms. Those forms included an acknowledgment of receipt of a sexual harassment manual; a non-solicitation and confidentiality agreement; and an authorization and release of personal information for a background check. ² The background check release permitted TooJay's to “conduct a comprehensive review” including a review of Myers' “credit history and reports.” Myers filled out and signed those forms in the appropriate spaces, many of which were designated as being for the “Employee” name or signature. For example, the new hire checklist, which listed all the forms that Myers had filled out, had his name on the “Employee Name” line. The checklist, however, also had the letters “OJE” written and underlined twice at the top of the page.

According to Myers' trial testimony, at the end of his on-the-job evaluation Thornton scheduled him to begin work on August 18 without informing him that his employment would be conditioned on a clean credit history. According to Thornton's testimony, however, he never offered Myers a job. When asked whether he had the authority to hire assistant managers, Thornton responded that he only “had the authority to interview and recommend the hiring of assistant managers.” Hiring was contingent on the background check, something that Thornton said he told Myers.

On August 4, 2008, Myers gave Starbucks his two weeks notice. That was also the date on a letter that TooJay's sent to Myers, informing him: “that we find it necessary to rescind our previous offer of employment. This decision was based in whole or in part, on the information provided us in a Consumer Report.... The report was prepared pursuant to an authorization signed by you at the time of the application.” Myers received the letter on August 12, 2008.

After Myers received that letter he called Thornton, who told him that he was not hired because of “a financial matter” and that he should contact Sharon Polinski in TooJay's human resources department. He did, and Polinski told him that the only reason he was not hired was that he had filed for bankruptcy, and it was TooJay's policy not to hire people who had done that. On August 13, 2008, Myers wrote a letter to William Korenbaum, TooJay's President and CEO, whom he had never met, asking him to reconsider the company's decision. Myers began by stating “I am writing to you in regard to my employment offer which was withdrawn by your company prior to the commencement of my employment.” After explaining why he thought that TooJay's should hire him despite his bankruptcy, Myers closed the letter by expressing his hopes that TooJay's would change its mind and stated that he “look[ed] forward to hopefully becoming a member of the TooJay's family.”

TooJay's did not respond to Myers' letter. Shortly after he wrote it, Starbucks let Myers return to his shift supervisor position at the same rate of pay but with fewer hours. TooJay's eventually sent Myers a check for the payment it had promised him for the two days of his on-the-job evaluation.

B.

On September 2, 2008, Myers filed a lawsuit against TooJay's. The complaint alleged, among other things, that TooJay's had discriminated against him because of his bankruptcy, in violation of 11 U.S.C. § 525(b), by refusing to hire him and, alternatively, by terminating him from the job after it had hired him.³ TooJay's and Myers filed cross-motions for summary judgment on the refusal to hire claim. The district court denied Myers' motion and granted TooJay's based on its conclusion that § 525(b) does not prohibit a private employer from refusing to hire someone because of a bankruptcy. TooJay's had also moved for summary judgment on the wrongful termination claim, but the district court denied the motion after finding a genuine issue of material fact about the existence of an employment relationship between Myers and TooJay's.

During a two-day jury trial, Myers presented several witnesses and testified himself. During his testimony, Myers changed his tune several times about when he was hired. He testified at one point during direct that “I began my employment on ... July 31st,” but at another point said that he was hired “[o]n the 31st or—or August 1st.” He testified on cross-examination that he was hired before his on-the-job evaluation began on July 31, 2008, and implied that the hiring took place after his interview with Thornton.⁴

At the close of the evidence, Myers moved for judgment as a matter of law, which the district court denied, sending the wrongful termination claim to the jury. Forty-three minutes later, the jury returned a verdict in favor of TooJay's, responding to the first special interrogatory, “Do you find from a preponderance of the evidence ... [t]hat the Plaintiff became an employee of the Defendant?” with: “No.” The district court entered judgment against Myers.

Myers filed a renewed motion for judgment as a matter of law and a motion for new trial, both of which the district court denied. He then filed a notice of appeal from the judgment, specifying the orders granting summary judgment to TooJay's on his refusal to hire claim, denying his renewed motion for judgment as a matter of law on his wrongful termination claim, and denying his motion for a new trial as to that claim. This is his appeal.

II.

Myers has two claims that TooJay's violated § 525(b). One claim is that it did so by refusing to hire him because he had filed for bankruptcy, and the other claim is that it actually did hire him but then terminated him because he had filed for bankruptcy. The first claim was rejected by the district court...