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Distinguished Executives Transportation, LLC v. Cracker Barrel Old Country Store, Inc.

United States District Court, S.D. West Virginia, Charleston

May 10, 2018




         Pending is defendant Cracker Barrel Old Country Store, Inc.'s (“Cracker Barrel”) motion for summary judgment, filed December 7, 2017.

         I. Background

         Defendant 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.)

         On 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.)

         Freeman 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 Dep.”) 30-31.)

         According 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.)

         Payne, 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.)

         Payne 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.)

         Goodlet's 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.)

         According 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.)[1] 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. (Id. 36-37.)

         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.)

         Freeman 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.)

         Neither 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.)

         Freeman 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.)

         Freeman 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 Clause.)

         On 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.)

         The 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. 18-19).

         II. Summary Judgment Standard

         Summary 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)).

         “As 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)).

         Regarding 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 311.

         If the 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).

         III. Discussion

         A. 42 ...

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