United States District Court, N.D. Indiana, Hammond Division
TILLIE A. SMITH, Plaintiff,
CRACKER BARREL OLD COUNTRY STORE, INC., Defendant.
OPINION AND ORDER
T. MOODY, UNITED STATES DISTRICT JUDGE
matter is before the court on the motion of defendant Cracker
Barrel Old Country Store, Inc. (“Cracker Barrel”)
for summary judgment on all claims raised by plaintiff Tillie
A. Smith. (DE # 55.) For the reasons set forth below, the
motion is granted, in part, and denied, in part.
a white female, began working as server at Cracker
Barrel's Merrillville location in 2011. (DE # 56-4, Pl.
Dep. 35.) By July of 2012, plaintiff had at least one
disciplinary infraction on her employment record for speaking
disrespectfully to a supervisor, which was labeled as a
“Final Written” counseling report. (DE # 56-2 at
7, 2012, a confrontation ensued between plaintiff and another
server, an African-American male named Jared Baity. According
to plaintiff, Baity blew on her neck and into her ear, and
she responded by moving her hand in that direction, making
contact with Baity's face. (DE # 56-4 at 38.) In a
written statement following the incident, she described her
action as a “slap” (id.), though she
later testified that she moved her hand to her ear because
she thought that the ceiling was blowing down. (DE # 56-4,
Pl. Dep. 71.) According to plaintiff, later that shift, Baity
commented that her breasts were large and made sucking
noises. (DE # 56-4 at 38.) A few minutes later, Baity came up
behind plaintiff, said “‘excuse me' as he put
his hand on my right hip then slid his hand on to my butt to
the point of sliding my body to the left.”
(Id.) Plaintiff asserted that Baity had touched her
“privates.” (Id. at 40.) At her
deposition, she stated that Baity's hand was “right
up to my vagina.” (DE # 56-4, Pl. Dep. 74.)
attested that she “might have said a cuss word”
in response to Baity's conduct. (DE # 56-4, Pl. Dep. 82.)
She further stated that she told Baity: “I bet if I was
Paul [plaintiff's boyfriend] you wouldn't be touching
me like that, and how would you like it if Paul came up here
and touched you like that.” (Id., Pl. Dep.
87.) According to Baity, plaintiff said “fu** [sic] you
Jared” and called him a “faggit [sic], ”
loud enough for guests to hear. (DE # 56-2 at 16.) Baity
further claimed that plaintiff said that “Paul going to
come up here and whoop my ass.” (Id. at 17.)
claims that she immediately reported the incident to
Associate Manager Ken Janda. (DE # 56-4, Pl. Dep. 90-91.) She
also claims that she reported Baity's actions to General
Manager Hans Oskam, who told her that Baity “is just
friendly, ” but that he planned to “open an
investigation.” (Id., Pl. Dep. 105-06.)
Ultimately, Oksam concluded that plaintiff had slapped Baity
and that both employees contributed to the confrontation, but
he could not determine whether any inappropriate touching had
occurred. (DE # 56-2 at 3-4.) Ultimately, both plaintiff and
Baity were fired. (Id. at 4.) Plaintiff's'
termination sheet provided the following rationale for her
firing: “You behaved inappropriately regarding the
situation [with Baity]. Your [sic] are already on a final
written warning for hospitality 1st, and you admitted to
hitting another employee. You threatened him, and also used
profanity on the wait aisle.” (DE # 56-2 at 27.)
sued under Title VII of the Civil Rights Act of 1964 for
sexual harassment, sex discrimination, race discrimination,
and retaliatory discharge, plus the state law torts of
wrongful termination in violation of public policy and
negligent supervision. (DE # 1.) Cracker Barrel has moved for
summary judgment on all claims. (DE # 55.) Plaintiff concedes
that summary judgment is appropriate on her wrongful
termination claim, but insists that genuine issues of
material fact exist as to the remainder of her claims.
Rule of Civil Procedure 56 requires the entry of summary
judgment, after adequate time for discovery, 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “[S]ummary judgment is appropriate-in
fact, is mandated-where there are no disputed issues of
material fact and the movant must prevail as a matter of law.
In other words, the record must reveal that no reasonable
jury could find for the non-moving party.” Dempsey
v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d
832, 836 (7th Cir. 1994) (citations and quotation marks
moving party bears the initial burden of demonstrating that
these requirements have been met. Carmichael v. Village
of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010).
“[T]he burden on the moving party may be discharged by
‘showing'-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.” Celotex, 477 U.S.
at 325. Once the moving party has met his burden, the
non-moving party must identify specific facts establishing
that there is a genuine issue of fact for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir.
2003) (citing Celotex, 477 U.S. at 324). In doing
so, the non-moving party cannot rest on the pleadings alone,
but must present fresh proof in support of its position.
Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing
the facts presented on a motion for summary judgment, the
court must construe all facts in a light most favorable to
the non-moving party and draw all reasonable inferences in
favor of that party. Chmiel v. JC Penney Life Ins.
Co., 158 F.3d 966 (7th Cir. 1998).
court begins with plaintiff's race discrimination claim,
which plaintiff addressed with only a few sentences in her
response brief. Under the familiar burden-shifting framework
initially set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), it is first plaintiff's
burden to establish a prima facie case of intentional racial
discrimination. To do this, a plaintiff must provide evidence
that: (1) she is a member of a protected class; (2) she was
meeting his employer's legitimate performance
expectations; (3) she suffered an adverse employment action;
and (4) other similarly-situated employees outside of the
protected class were treated more favorably. Huang v.
Cont'l Cas. Co., 754 F.3d 447, 450 (7th Cir. 2014).
However, plaintiff has not set forth sufficient evidence to
establish the fourth element. Both plaintiff and Baity were
terminated, and though plaintiff has pointed to one
race-related remark by a Cracker Barrel employee
(specifically, that Cracker Barrel was afraid to fire Baity
because Baity would “throw the race card”), the
statement is inadmissible hearsay and the declarant was not a
decision-maker so the statement has virtually no relevance.
assuming plaintiff could establish a prima facie case
regarding race discrimination, Cracker Barrel has articulated
a legitimate, non-discriminatory reason for firing plaintiff
by pointing to her prior warning and her behavior in the
midst of the conflict with Baity (i.e., hitting, threatening,
and using profanity), so the burden shifts yet again to
plaintiff, who must present evidence that this reason is
pretext for unlawful racial discrimination. Cung Hnin v.
TOA (USA), LLC,751 F.3d 499, 504 (7th Cir. 2014). This,
plaintiff has not done. Plaintiff claims that black employees
were not disciplined as harshly as ...