United States District Court, S.D. West Virginia, Charleston
DISTINGUISHED EXECUTIVES TRANSPORTATION, LLC, and RANDY FREEMAN, Plaintiffs,
CRACKER BARREL OLD COUNTRY STORE, INC., Defendant.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE
is defendant Cracker Barrel Old Country Store, Inc.'s
(“Cracker Barrel”) motion for summary judgment,
filed December 7, 2017.
Cracker Barrel is a Tennessee corporation with its principal
place of business in Tennessee. (Compl. ¶ 3.) Plaintiff
Randy Freeman is an African-American male who resides in
Williamsburg, Virginia. (Deposition of Randy Freeman
(“Freeman Dep.”) 6, 128.) Freeman is the
“sole proprietor, ” as Freeman phrases it, of
plaintiff Distinguished Executives Transportation, LLC
(“Distinguished Executives”), which is based in
Virginia. (Id. 9, 12-13). Distinguished
Executives' business is, in part, contracting with tour
companies or churches to transport tour groups via motor
coach. (Id. 12-14.)
September 6, 2015, Freeman, under a contract between
Distinguished Executives and White Star Tours, was driving an
all-white church group from Elkhardt Baptist Church, which
appears to be located in Virginia, to Branson, Missouri.
(Id. 14-15, 30, 38, 72.) Freeman stopped the group
for the night at a hotel in Cross Lanes, West Virginia.
(See id. 38.) While Freeman completed some
paperwork, the group proceeded to the adjacent restaurant
owned by Cracker Barrel (the “restaurant”).
(Id. 30.) Freeman came to the restaurant sometime
shortly thereafter. (See id.)
waited in line at the restaurant for about fifteen minutes
until he could be seated. (Id.) He told the wait
staff that he was with the group from White Star; he did not
mention Distinguished Executives. (Id. 101-03.) As
he was being seated, Freeman passed a group of three white
women from the group at a table for four. (Id.
30-31; 52; 93.) The women, who had already ordered their
food, invited Freeman to sit with them, and Freeman accepted.
(Id.) The table's server was Kailee Payne.
(See Deposition of Kailee Payne (“Payne
to Freeman, the women's food arrived around thirty
minutes later, at which time Freeman asked Payne if he could
order. (Freeman Dep. 31.) Freeman alleges that Payne did not
respond and left the table. (Id.)
on the other hand, claims that she asked Freeman soon after
he sat down if she could take his order and that Freeman
responded that he was not going to eat. (Payne Dep. 31-32.)
Payne alleges that Freeman then left the table and that she
did not see him for another ten minutes to an hour when he
returned to the table. (Id. 33-36.) At that time,
Payne asserts that Freeman yelled at her in an aggressive
tone, “who's going to take my f--king order?”
(Id. 34.) Freeman denies these allegations.
(E.g. Freeman Dep. 91.)
left the table and reported her story, in tears, to one of
the restaurant's managers, Christopher Goodlet.
(E.g. Deposition of Christopher Goodlet
(“Goodlet Dep.”) 133-35; see Freeman
Dep. 31.) Without having seen Freeman, Goodlet claims he
decided that Freeman should leave the restaurant. (Goodlet
Dep. 146-47, 171.)
testimony indicates that he spoke to Freeman only once,
whispering such that no one else could hear. (Id.
132-33.) Goodlet told Freeman what Payne had relayed to him
and asked Freeman to leave. (See, e.g.,
id. 132-33; 140, 147.) Goodlet claims that Freeman
left the table and proceeded to the retail area of the
restaurant, (id. 133, 167-68), which is separate
from the dining area, (see Freeman Dep. 37). Goodlet
avers that Freeman acted rudely in the retail area. (Goodlet
Dep. 167-68.) Goodlet claims that he had to get back to work,
so he gave Freeman his card and information and asked a
different manager, Nate McManaman, to escort Freeman out of
the restaurant. (Id. 133, 140, 152, 167-68.)
Goodlet's typical response when a customer is unhappy is
to ask why and to attempt to resolve the issue. (See
id. 124, 128.) In this case, Goodlet believed what Payne
had told him without conducting any further investigation.
(E.g. id. 159.)
to Freeman, Goodlet spoke to him twice. Goodlet first
informed Freeman of Payne's story but did not ask Freeman
to leave. (See Freeman Dep. 31.) Freeman claims that
Goodlet spoke loudly enough for the three women to hear, or
that the others could at least understand what Goodlet said
based on Freeman's response. (Id. 87-92.)
Freeman denied that he yelled or cursed at Payne and asserts
that he had the support of the three women at the table, and
Goodlet left. (Id. 35-36, 41, 87-92.) Freeman alleges
that an African-American male replaced Payne as the
table's server, and Freeman ordered a drink and food.
(Id. 36, 80.) The same African-American male brought
Freeman his drink. (Id.) Before Freeman received his
food, Goodlet returned a second time, told Freeman that he
believed Payne, and asked Freeman to leave. (Id.
36-37.) Freeman asked to see a manager and walked to the
retail area of the restaurant where he spoke with McManaman.
claims that Freeman was being very loud in the retail area
and telling other customers to leave the restaurant,
(Deposition of Nate McManaman (“McManaman Dep.”)
44, 47, 53-54, 58-59), while Freeman avers that he was simply
standing in the retail area with a brochure containing the
phone number of Cracker Barrel's headquarters, (Freeman
Dep. 37). Freeman and McManaman had a brief conversation, and
McManaman told Freeman that he had to believe Payne, that
Payne was new, that the restaurant was understaffed and busy
that day, and that Freeman had to leave. (Id. 37,
80; McManaman Dep. 43-47; 53-56, 58.) McManaman gave Freeman
his business card, and Freeman left. (Freeman Dep. 37, 80;
McManaman Dep. 46-47, 56.)
later called Cracker Barrel's headquarters about the
incident. (Freeman Dep. 39-40.) He received a call back and
was told that there would be an investigation, but no one
from Cracker Barrel ever contacted him again. (Id.)
Goodlet did not write down anything about the incident, nor
did he report it to anyone. (Goodlet Dep. 150.)
Goodlet nor Payne felt threatened at any point during the
incident. (Id. 168; Payne Dep. 38.) No. one yelled
at or touched Freeman, and no racial epithets were spoken.
(Freeman Dep. 79-80, 121.) Freeman did not seek medical care
or incur any medical costs as a result of the incident.
(Id. 94-95.) Freeman claims that it was the most
embarrassing moment of his life, even moreso than when he
attended a racially-segregated elementary school.
(Id. 51, 128-29.)
does not have records of any economic loss suffered by either
him or Distinguished Executives as a result of the incident.
(Id. 111-13; see id. 14-17.) Additionally,
Freeman is unaware of any negative comments made by anyone
else about him or by anybody about Distinguished Executives
at all. (Id. 98-103, 105.) White Star continues to
contract with Distinguished Executives. (Id. 34,
95-96.) Andrew Cammarano, Tour Manager for White Star, swears
that White Star took no adverse action against Freeman and
Distinguished Executives and that he “ha[s] not heard
of any harm to [Freeman's or Distinguished
Executive's] personal or business reputation from an
event that occurred at Cracker Barrel.” (Affidavit of
Andrew Cammarano ¶¶ 1, 3, 7, 9-10.)
and Distinguished Executives initiated this action in this
court on September 1, 2016. The plaintiffs bring three claims
against Cracker Barrel, the sole defendant, for
discrimination in violation of Section 101 of the Civil
Rights Act of 1991, 42 U.S.C. § 1981 (Count I);
defamation (Count II); and intentional infliction of
emotional distress (“IIED”), also known as the
tort of outrage (Count III). The plaintiffs seek, inter
alia, damages and injunctive relief. (Compl. WHEREFORE
December 7, 2017, Cracker Barrel moved for summary judgment
on all counts. Cracker Barrel argues that Distinguished
Executives has failed to show any actions taken against it,
(see Mem. Supp. 6, 11), and, further, that
Distinguished Executives cannot suffer emotional distress as
an entity, (id. 17). As for Freeman, Cracker Barrel
insists that there is no evidence that Freeman was removed
from the store because he is African-American. (Id.
6-7.) Cracker Barrel also contends that Freeman has failed to
establish facts sufficient to sustain his defamation and IIED
claims. (Id. 7, 14.)
plaintiffs argue first that they have established a prima
facie case of discrimination and that Cracker Barrel's
non-discriminatory justifications for removing Freeman are
mere pretext. (Resp. Opp'n 4, 13.) Second, the plaintiffs
contend that a reasonable jury could find that Cracker Barrel
defamed them. (Id. 13-14.) Third, while the
plaintiffs agree that Distinguished Executives cannot suffer
IIED, (id. 18), the plaintiffs assert that there
exist triable issues pertaining to Freeman, (id.
Summary Judgment Standard
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court's review is guided by the
principle that it must “construe the evidence, and all
reasonable inferences that may be drawn from such evidence,
in the light most favorable to the nonmoving party.”
Dash v. Mayweather, 731 F.3d 303, 310 (4th Cir.
2013) (citing PBM Prods., LLC v. Mead Johnson &
Co., 639 F.3d 111, 119 (4th Cir. 2011)).
to materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (citing 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 2725 (2nd ed. 1983)).
genuineness, “summary judgment will not lie if the
dispute about a material fact is ‘genuine, ' that
is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id.; see also S.B. v. Bd. of Educ., 819
F.3d 69, 74 (4th Cir. 2016) (quoting Perini Corp. v.
Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir.
1990)). The moving party has the initial burden of
“‘showing' - that is, pointing out to the
district court - that there is an absence of evidence to
support the nonmoving party's case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). This is true
“[i]rrespective of the burdens assigned by the
applicable substantive law.” Dash, 731 F.3d at
movant carries its burden, the non-movant must demonstrate
that “there is sufficient evidence favoring [it] for a
jury to return a verdict” in its favor.
Anderson, 477 U.S. at 249 (citation omitted);
see also Dash, 731 F.3d at 311. As explained by our
circuit court of appeals,
[a]lthough the court must draw all justifiable inferences in
favor of the nonmoving party, the nonmoving party must rely
on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence
of a scintilla of evidence. See Anderson, 477 U.S.
at 252; Stone v. Liberty Mut. Ins. Co., 105 F.3d
188, 191 (4th Cir. 1997). Rather, “a party opposing a
properly supported motion for summary judgment . . . must
‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Balt.
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting Fed.R.Civ.P. 56(e) (2002) (amended 2010)).
Dash, 731 F.3d at 311 (alteration in original).