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Brooks v. Potomac Family Dining Group Operating Company LLC

United States District Court, W.D. Virginia, Harrisonburg Division

March 31, 2019

GARY BROOKS, Plaintiff,
v.
POTOMAC FAMILY DINING GROUP OPERATING COMPANY LLC, Defendant.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON, UNITED STATES DISTRICT JUDGE

         Plaintiff Gary Brooks (Brooks) filed this action asserting claims against Potomac Family Dining Group (Potomac), the franchisee of his former employer, Applebee's restaurant, under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Brooks, who is African American, alleges that he was subjected to race and age discrimination and terminated as a result.

         Pending before the court is Potomac's motion for summary judgment, seeking judgment as a matter of law on both claims. (Dkt. No. 19.) Specifically, Potomac contends it is entitled to summary judgment because Brooks has not met his burden to establish satisfactory job performance or that he was treated differently from similarly situated employees outside the protected class. Moreover, Potomac asserts that it had a legitimate, non-discriminatory reason to fire Brooks: his inability as kitchen manager to maintain food safety and sanitation in the kitchen, as reflected by three failed eCaps audits.

         The motion has been fully briefed, neither party has requested a hearing, and the court concludes that no hearing is required. For the reasons set forth herein, the motion for summary judgment will be granted.

         I. BACKGROUND

         Brooks is a 43-year-old African-American male who began working for Potomac in 1998 at one of its Applebee's restaurants located in Harrisonburg, Virginia. As kitchen manager, Brooks was “[b]asically in charge of the kitchen” and responsible for cleanliness, “food safety, training of food safety, [and] training of recipes.” He attended a food safety class where he learned how to keep the kitchen clean, received formal training on food safety and kitchen manager duties, and received a training manual detailing his responsibilities for daily operations. Brooks was responsible for ensuring that “line checks” were completed in the kitchen twice a day, even when he was not working. A line check required checking the freshness and temperature of food “through the line” in the kitchen. In Potomac's kitchen manager training manual, it states that the kitchen manager must “run a safe and clean kitchen, ” “hold all managers accountable for line checks and daily Ecosure/eCaPS audits, ” and “be held responsible for all aspects of [his] Kitchen.” (Brooks Dep. 60, 86, 95-96, 98-103, 115-16, 122, Dkt. Nos. 20-1, 26-3;[1] ServSafe Certification, Dkt. No. 20-6; Role of the KM 20, Dkt. No. 20-8.)

         Potomac employs a company called EcoSure to perform food safety sanitation audits- called eCaps audits-in its restaurants. These audits are unannounced and occur twice a year. (Brown Dep. 19, Dkt. Nos. 20-2, 26-2;[2] Brooks Dep. 119-20.) At the January 15, 2015 eCaps audit, the kitchen was cited for: (1) “food and/or food contact items not being stored properly;” (2) “food utensils not being stored properly;” (3) “wiping cloth sanitizer solution not being stored at the proper PPM;” (4) “chemicals being stored on top of the dish machine” and not being labeled correctly; (5) “having caulk around the server's station cold wells that were moldy and not clean;” and (6) “a damaged, worn, and unclean strip curtain in the walk-in cooler.” The restaurant received a failing score of 70% for its product safety. (Brooks Dep. 122-25; January 15 eCaps Audit, Dkt. No. 20-10.) Brooks did not work until closing the night before and was not working on the day of this eCaps audit. (Gillespie-Brooks Decl. ¶ 6, Ex. A at 21, Dkt. No. 26-6.)[3] Barbara Abbrescia, who is the bar manager at the Harrisonburg location and is Caucasian, worked until closing the night before. (Id.; Brooks Dep. 147.)

         Leading up to the next eCaps audit on April 2, Shannon Brown, the area director, met with and discussed the issues in the kitchen with Brooks. She had three “coaching/counseling sessions” with him that were related to food quality and sanitation, and during them, she had concerns about food safety and sanitation in the kitchen. (Brown Dep. 6, 26, 34-35.) Brown also had visited the Harrisonburg location several times and had several conversations with Brooks during those visits regarding her concerns with food safety and sanitation. (Id. at 27.)

         At the April 2, 2015 eCaps audit, the kitchen was cited for: (1) a “line employee washing his hands without gloves on and without soap and then returning back to the line with the same gloves;” (2) a “line employee changing gloves without washing his hands between glove change;” (3) “a cracked ice bucket in the kitchen;” (4) “low water temperature in the dishwashing machine;” (5) “improper cooling procedures” that can affect cross-contamination or “diseases growly rapidly from the temperatures being in the danger zone;” (6) out-of-date produce; (7) “unclean ceiling vents;” (8) “unclean exhaust hoods;” (9) “a rusty dry rack;” (10) “an unclean microwave;” and (11) “refrigeration gaskets that weren't property maintained.” Again, the restaurant received a failing score of 70% for its product safety. None of the product safety violations were related to the “front of the house” area of the restaurant. (Brooks Dep. 125-29; April 2 eCaps Audit, Dkt. No. 20-11.) Again, Brooks was not working on the day before or on the day of this eCaps audit. Barbara Abbrescia worked the closing shift the night before this eCaps audit. (Gillespie-Brooks Decl. ¶ 6, Ex. A at 17.)

         After the April 2 eCaps audit, during a routine visit on April 15, 2015, Brown issued a written “Team Member Warning Notice” to Brooks. This notice was to document “multiple food safety violations.” Brown testified that Brooks's kitchen was unique when compared to the kitchens of other restaurant locations due to its “level of sanitation.” After she issued this notice, Brown wanted to coach and help Brooks to be successful because “[n]obody wants to fire anybody, ” so she went to the Harrisonburg location and “helped him clean and organize his kitchen.” The notice stated, and Brooks understood, that further infractions could result in disciplinary action, including termination. (Brown Dep. 27, 29; Brown Team Member Warning Notice, Dkt. No. 20-13; Brooks Dep. 130-32.)

         The general manager of the Harrisonburg location, Denver Snyder, also raised his concerns about Brooks's management of the kitchen several times following the April 2 eCaps audit. Snyder discussed his concerns about food safety, food quality, and sanitation issues in the kitchen with Brooks at the following meetings: (1) a counseling session on April 15; (2) a “Manager one on one” on April 28; (3) another counseling session on May 1; and (4) another “Manager one on one” on May 5. On May 26, 2015, Snyder issued a written “Team Member Warning Notice” to Brooks that referenced their prior meetings, laid out in detail his concerns about food safety, food quality, and sanitation in the kitchen, and set forth a plan for improvement. The notice stated that “[c]ontinued habits of this type cannot and will not be tolerated, ” that Brooks's habits needed to be changed and fixed within 30 days, and that his employment could not continue if he did not change his behavior. Brooks had a “coach and counsel” session with Snyder about the written notice, during which they discussed food safety quality and policies, and he understood that it was in his best interest to change his behavior if he wanted to continue his employment.[4] (Snyder Team Member Warning Notice, Dkt. No. 20-14; Brooks Dep. 133-36.)

         At the January 20, 2016 eCaps audit, the kitchen was cited for: (1) “baked potatoes stored directly next to containers of raw ground beef in the same walk-in cooler shelf and a full pan of cooked baking potatoes stored next to raw salmon on the same shelf;” (2) “mold in the back of the house ice scoop;” (3) “mold buildup in the fountain dispenser nozzles;” (4) “bulk rice in a [plastic container] that was not labeled properly;” (5) “sliced American cheese stores above temperature;” (6) “pork riblets stored above temperature;” (7) “sliced cheddar, sliced Swiss, and grated cheese stored above temperature;” (8) “trash and debris on the floor in the kitchen that was beyond normal operational levels;” (9) “a dish machine drain that was disconnected from the floor drain;” (10) “multiple shelves in the walk-in cooler that had mold;” and (11) “food storage racks that had dust buildup and cobwebs.” Unlike the 2015 audits, the restaurant received an overall failing score of 73.5%, but like the 2015 audits, the restaurant received a failing score of 65% for its product safety. (Brooks Dep. 136-42; January 20 eCaps Audit, Dkt. No. 20-12.) Brooks did not work until closing the night before, but he did work the day of this eCaps audit. Adam Updike, who is the front of the house manager, Caucasian and in his twenties, worked the closing shift the night before and the day of this eCaps audit. (Gillespie-Brooks Decl. ¶ 6, Ex. A at 3; Brooks Dep. 146-47.)

         From 2015 to 2016, Brooks was the only kitchen manager at the Harrisonburg location. (Brooks Dep. 142-43.) And from 2015 to 2016, Brown believed that, when compared to the other restaurants under her supervision, food safety and sanitation was more concerning and “pretty critical” at the Harrisonburg location. (Brown Dep. 35-36.)

         Mike Lemieux and Snyder fired Brooks the day after the January 20 eCaps audit. His termination letter stated that it was his responsibility “to be in control of the business every minute of [his] shift, ” noted that he had been coached and counseled multiple times with no change in his behavior, and explained that he was being terminated for continued failure on eCaps audits. Brooks did not complain about race or age discrimination at his termination meeting. When asked if he believed that Potomac acted with ill will, Brooks responded: “I believe they were trying to do the right thing, but I think they did it the wrong way.” (Termination Letter, Dkt. No. 20-15; Brooks Dep. 143, 166.) Abbrescia and Updike were not fired. (Brooks Dep. 146.)

         Brooks now alleges that his termination constituted race discrimination in violation of Title VII and age discrimination in violation of the ADEA and that Potomac's stated reasons for his termination were not the true reasons, but a pretext to hide its discriminatory animus. (Compl. ¶¶ 19-29, Dkt. No. 1.)

         II. DISCUSSION

         A. Summary Judgment Standard

         Under Rule 56, summary judgment is proper where “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). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving ...


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