Talley v. Bravo Pitino Restaurant, Ltd.

• Decision Date: 15 August 1995
• Docket Number: No. 94-5708,94-5708
• Citation: 61 F.3d 1241
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 874, 66 Empl. Prac. Dec. P 43,702, 42 Fed. R. Evid. Serv. 1289 Willie Love TALLEY, Plaintiff-Appellant, v. BRAVO PITINO RESTAURANT, LTD., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1241

61 F.3d 1241

68 Fair Empl.Prac.Cas. (BNA) 874,

66 Empl. Prac. Dec. P 43,702,

42 Fed. R. Evid. Serv. 1289

Willie Love TALLEY, Plaintiff-Appellant, v. BRAVO PITINO RESTAURANT, LTD., Defendant-Appellee.

No. 94-5708.

United States Court of Appeals, Sixth Circuit.

Argued July 24, 1995.

Decided Aug. 15, 1995.

Philip C. Kimball (argued and briefed), Louisville, KY, for plaintiff-appellant.

Jennifer S. Goldstein, E.E.O.C., Office of Gen. Counsel, Washington, DC, for E.E.O.C.

Glenn Earl Acree (argued and briefed), Thomas, Stidham & Acree, Lexington, KY, for defendant-appellee.

Before: MILBURN and NORRIS, Circuit Judges; BECKWITH, ^* District Judge.

MILBURN, Circuit Judge.

Plaintiff appeals the district court's grant of summary judgment to defendant in this Title VII action under the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Kentucky Civil Rights Act, Ky.Rev.Stat. Sec. 344.040, alleging race discrimination in the termination of plaintiff's employment. On appeal, the issue is whether the district court erred in determining that plaintiff failed to establish a prima facie case of race discrimination because plaintiff was not able to prove that other employees who were similarly situated to him were not subjected to the same adverse employment action. For the reasons that follow, we reverse and remand.

I.

A.

Defendant Bravo Pitino Restaurant, Ltd. is a Kentucky limited partnership that operates a restaurant called Bravo Pitino Restaurant ("Bravo's") in Lexington, Kentucky. Defendant has as its general partner the Kentucky corporation of R.P. Restaurants, Inc, which is owned by Jodi DiRaimo, Rick Pitino, and one other individual. Only Mr. DiRaimo has an active role in the operations of Bravo's; he serves as Bravo's general manager.

Plaintiff Willie Love Talley was employed by defendant as a sous chef at Bravo's from November 30, 1990, until April 13, 1992, when he was discharged. When plaintiff was hired, he was given an employee handbook stating that management "has the right to terminate immediately for other reasons which it determines to be serious, with concurrence of the president." Affidavit of Rick Pitino, Exhibit A-1 (quoted in Appellee's Brief at 3). It is undisputed that plaintiff was generally regarded as an excellent chef, although the parties disagree as to plaintiff's overall value as an employee. Plaintiff asserts that management was pleased with the quality of his work and that he was never reprimanded. Defendant maintains that plaintiff was prone to periods of moodiness constituting, on occasion, insubordination. Although plaintiff had no set hours and remained on the job as long as necessary to carry out his duties, defendant claims that plaintiff often did not arrive for work sufficiently early to complete all food preparation.

On the evening of Saturday, April 11, 1992, plaintiff went with a group of nine others to socialize at a nearby restaurant. Included in the group were seven other employees of defendant, along with Kathy DiRaimo, the wife of Mr. DiRaimo, and her sister. When the restaurant's bar closed at 1:00 a.m. the next morning, Mrs. DiRaimo suggested that the group go back to Bravo's. Mrs. DiRaimo occasionally filled in for Mr. DiRaimo as general manager, and Bravo's employees generally acquiesced in her management efforts. Plaintiff was the only one with a key to Bravo's, so Mrs. DiRaimo suggested, and then ordered plaintiff to open the doors to Bravo's. Plaintiff admits opening the doors to Bravo's. In his deposition, plaintiff testified that after he opened the door he said, "Ms. DiRaimo, you know, I can get fired for this, this is not right, why are you putting me in this position." J.A. 97. Plaintiff further testified that Mrs. DiRaimo replied, "Love, if anything happens, I'll be fully responsible for it." Id. Plaintiff said there was no policy against opening the doors to the restaurant, but he acknowledged that he knew that he was "doing the wrong thing by opening the restaurant." J.A. 99. While at Bravo's, everyone had drinks, but no one paid for their drinks. They stayed at Bravo's until about 2:45 a.m.

On Monday, April 13, 1992, Mr. Pitino told plaintiff that he had learned of the after-hours party and that all employees who participated were fired. About a week later, when Bravo's management realized that the mass firing had left them with a significant personnel shortage, Mr. DiRaimo decided to rehire all of the terminated employees except for plaintiff. The seven employees offered re-employment are all white; plaintiff is black. In his deposition, Mr. DiRaimo stated that plaintiff, the only management personnel in the group and the only person in the group who had a key to Bravo's, essentially was responsible for the after-hours party's occurrence because the incident could not have taken place if plaintiff had not opened the doors to Bravo's. Defendant filled plaintiff's sous chef position with a white person. According to plaintiff, the person who replaced him would testify that he was informed that "he would become the day sous chef as soon as [Bravo's] could get rid of ... plaintiff." J.A. 53.

There was also evidence in the record that both Mr. DiRaimo and Mr. Pitino had used racial slurs on a number of occasions. A restaurant valet stated that he had heard Mr. DiRaimo make disparaging remarks about blacks, including use of the terms "nigger" or "stupid nigger." J.A. 68. The lunch manager also stated that she had heard Mr. DiRaimo use the word "nigger" on occasion. J.A. 71. Plaintiff stated that he once heard Mr. DiRaimo, when instructing a utility worker not to take out the trash, state, "You don't need to be doing that. Let the niggers do it." J.A. 73. ¹ Plaintiff also stated that he had heard Mr. Pitino make racist comments. Plaintiff referred to one comment Mr. Pitino had made in the presence of Mr. DiRaimo in reference to the Clarence Thomas hearings--something to the effect that "It is about time those niggers got what they deserved." J.A. 72. Plaintiff also claimed that most of the blacks at the restaurant occupied more menial positions and that he was passed over for the executive chef's position, which was filled with a less-experienced white person.

B.

On April 13, 1993, plaintiff Willie Love Talley filed a complaint pro se in the district court alleging that defendant Bravo Pitino Restaurant discriminated against him on the basis of race when it terminated his employment. After having obtained legal counsel, plaintiff filed an amended complaint on September 21, 1993, alleging that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Kentucky Civil Rights Act, Ky.Rev.Stat Sec. 344.040. On December 23, 1993, defendant filed a motion for summary judgment contending that plaintiff cannot establish a prima facie case because there were no other similarly situated employees since plaintiff was the only employee who was management personnel or who had a key to Bravo's. The district court granted defendant's motion for summary judgment in an order issued May 25, 1994. This timely appeal followed.

II.

This court reviews a district court's grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 603 (6th Cir.1988). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. Id. at 324, 106 S.Ct. at 2553. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). Material facts are only those facts that might affect the outcome of the action under governing law. Id. at 248, 106 S.Ct. at 2510; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir.1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992).

The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Supreme Court explained:

If the defendant ... moves for summary judgment ... based on the lack of proof of a material fact, the judge must ask himself ... whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict--"whether there is [evidence]...