Noble v. Brinker Intern., Inc.

• Decision Date: 12 December 2001
• Docket Number: No. C2-00-663.,C2-00-663.
• Citation: 175 F.Supp.2d 1027
• Parties: Marcus A. NOBLE, Plaintiff, v. BRINKER INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

175 F.Supp.2d 1027

Marcus A. NOBLE, Plaintiff, v. BRINKER INTERNATIONAL, INC., Defendant.

No. C2-00-663.

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

December 12, 2001.

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Dennis M. McGuire, Columbus, OH, for plaintiff.

Thomas Louis Rosenberg, Ulmer & Berne, Columbus, OH, for defendant.

ORDER AND OPINION

MARBLEY, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment filed on July 27, 2001. For the following reasons, the Court DENIES Defendant's Motion for Summary Judgment in part and GRANTS the Motion in part.

I. INTRODUCTION

This is a race discrimination case brought by Plaintiff Marcus Noble ("Noble") against Defendant Brinker International, Inc. ("Brinker"). Brinker is a holding company whose subsidiaries operate a number of concept restaurants, including Romano's Macaroni Grill and Chili's, which are located throughout the country.¹ Mr. Noble, an African-American and former employee of Macaroni Grill, claims that he was subjected to disparate treatment in terms and conditions of employment with Brinker in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000 et seq. (1991), and the Ohio Revised Code §§ 4112 .02 and 4112.99. Noble also alleges that he was terminated in violation of Ohio public policy for filing a lawsuit against another former employer.

II. FACTS

Noble began working as a server at the Macaroni Grill in Worthington, Ohio, on July 9, 1998. At that time, Linda Lawrence ("Lawrence") worked as the restaurant's General Manager. Noble was working at Chili's, another Brinker-operated restaurant, when he applied for a position at Macaroni Grill. Although the employment application asked applicants whether they worked at other Brinker concepts, Noble left this space blank. When he first began his employment with Macaroni Grill, Noble attended an orientation session and received intensive training relating to such items as steps of service and menu knowledge. Noble was also required to pass a written and oral examination before commencing work as a server. While Plaintiff passed the written exam, he had difficulty passing the oral test. Lawrence administered the oral test eight or nine times without satisfaction that Noble was ready to wait tables. Finally, Associate Manager Jeannie Osborne ("Osborne") tested Noble and determined that he was prepared to begin work. Plaintiff claims that Lawrence gave him a much more difficult oral exam than she used with white employees. With Noble, she allegedly asked questions from the entire menu in addition to those from a preprinted oral exam sheet.

Shortly after Noble began working, Lawrence discovered that he was also working at Chili's. This concerned Lawrence because Noble's application did not indicate his second employment, and the company could be forced to pay overtime if Noble worked more than 40 hours per week between the two restaurants. Plaintiff claims that Lawrence became infuriated when she learned of his second job and accused him of defrauding Brinker. Noble states that several other white employees were similarly employed, which was not prohibited under company policy unless overtime pay became an issue. Lawrence, Osborne, and Noble discussed the issue, and Plaintiff accused Lawrence of confronting him because of his race.

At that time, Noble also confronted her about various other actions she had taken that he had perceived as racist. Plaintiff, for instance, believed that white coworkers were given better shifts than African-American employees; that African-American servers were denied priority customer opportunities; that African-American workers were kept later than white workers at the end of shifts; and that African-Americans were forced to endure an intimidating, hostile, and offensive work environment. When Noble raised these issues, he states that Lawrence became polite and did not fire him as he feared she would. Soon thereafter, Plaintiff contacted Defendant to complain about Lawrence's behavior.

Lawrence claims that she received three guest complaints relating to Noble on November 25, 1998. First, a guest called and complained that Noble deliberately rushed the table to finish their meals. Second, that same evening, a server summoned Lawrence to a table where the guests complained that they heard Noble using profanity. Both the server and the guests identified Noble as the individual who had used profanity. Third, Lawrence learned that Noble had failed to greet a table within forty-five seconds of the guests being seated, as required by company policy. In this case, the guests waited approximately ten minutes. Noble admitted that this incident occurred and, when confronted by the manager about it, stated that the guests "can wait."

Plaintiff claims that the charge that he rushed guests was simply a reasserted allegation that Lawrence had made two months earlier, after which Osborne defended Noble's conduct. But by November 25, 1998, Osborne had quit and Plaintiff asserts that Lawrence simply fabricated the latter complaint to justify suspending Noble. Plaintiff denies that he ever used profanity near a table. And Plaintiff maintains that, although he did not formally greet them because he was busy tending to a cork he had broken in a wine bottle, he acknowledged the guests who were left waiting, as required by management when servers are extremely busy. He further claims that many white servers were late to their tables but were never disciplined.

Lawrence and Noble discussed these complaints on November 25, 1998, and Lawrence claims that at this meeting Noble did not deny that the first two events had occurred. Plaintiff, however, contends that at the meeting he denied that he had rushed the guests or had used profanity. In accordance with standard practice to issue written warnings for guest complaints, Lawrence issued three written Notices of Violation to Noble, each of which he signed. Plaintiff states that he originally refused to sign the notice pertaining to making the guests wait, but Lawrence allegedly told him that failure to sign would result in his immediate termination. Plaintiff now maintains that, even if these events did occur, they happened on different nights and not the evening of November 25, 1998, as Lawrence claims. After issuing the three Notices of Violation, Lawrence suspended Noble for two weeks without pay. Plaintiff states that he again contacted Defendant about Lawrence's alleged disparate treatment, but Defendant failed to respond. Plaintiff alleges that Lawrence fabricated the first two complaints so that she could suspend him. He argues that Lawrence knew that another violation would result in termination, and that his suspension would set the stage for his discharge.

In January 1999, Lawrence transferred out of the Worthington Macaroni Grill to a Macaroni Grill in Maine, and Tony Ficorilli ("Ficorilli") transferred in and replaced her as General Manager. On Thursday, April 15, or Friday, April 16, 1999, Ficorilli noticed that he had an evening shift that needed to be covered by a server that Saturday, April 17, 1999. Ficorilli claims that he asked Noble if he would be willing to cover the shift, and Noble agreed to do so. Ficorilli states that he confirmed the arrangement with Noble at least twice during their conversation. Yet, Noble did not show up for work that Saturday and did not call to explain his absence. Ficorilli states that he decided to terminate Noble's employment for not showing up or calling on Saturday, April 17, 1999.

Noble admits that he understood that a failure to call or show for an assigned shift could result in termination. Plaintiff had been sick that week and had obtained a doctor's note attesting to his tonsilitis and excusing him from work between April 14 and April 19, 1999. But since he was feeling better by Friday, April 16, 1999, Noble went to work because he told Ficorilli that he would be there that day. He then provided the doctor's note to a manager. Plaintiff states that during his Friday night shift, he never agreed to cover a shift on Saturday, April 17, 1999. He also felt better on Sunday and went to work, where he learned from Service Manager John Clark ("Clark") that he was being terminated for a "no-call/no-show" the previous evening.

Plaintiff contends that, generally, agreements between servers to pick up or switch shifts were recorded in the shift pick-up book and signed by the servers and a manager; oral agreements were usually not allowed. If such an agreement involved a manager and a server, it did not have to be recorded in the shift pick-up book, but was generally recorded in the manager's log. When Noble picked up shifts for other managers, they required it to be in writing. The agreement between Ficorilli and Noble, however, was not recorded in writing anywhere. Ficorilli did not put Noble's name on Saturday's work schedule, but maintains that he listed Noble in the "Cruise Control" computer program used by Defendant to create schedules and update rosters. While Ficorilli states that an employee can get his or her job back with a legitimate excuse, Plaintiff was not rehired after he presented the doctor's excuse.

Consequently, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission on January 11, 2000, and received a Right to Sue letter on March 22, 2000. Plaintiff's Complaint was filed on June 15, 2000, and contains four counts: Count I alleges racial discrimination under Title VII of the Civil Rights Act of 1964, as amended (1991), 42 U.S.C. §§ 2000 et seq.; Count II alleges racial discrimination under the Civil Rights Act of 1866, 42 U.S.C. § 1981; Count III alleges racial discrimination under the Ohio Revised Code §§ 4112.02 and 4112.09; and Count IV alleges retaliation and wrongful termination in violation of public policy.

III. STANDARD...