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2011 WDVa Dudley - Mcd's Ee Fired in Part for Myspace Posts

2011 WDVa Dudley - Mcd's Ee Fired in Part for Myspace Posts

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Published by: Brian Wassom on May 07, 2011
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2011 U.S. Dist. LEXIS 48076
2011 U.S. Dist. LEXIS 48076, *
CHRISTOPHER J. DUDLEY, Plaintiff, v. 4-MCCAR-T, INC., et al., Defendants.Civil Action No. 7:09-cv-00520UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION2011 U.S. Dist. LEXIS 48076May 4, 2011, Decided
summary judgment, sexual orientation, manager's, pound, disabled, lifting, lift,restaurant, prima facie case, disability, insubordination, termination, terminated,nondiscriminatory reasons, accommodation, complaining, protected activity, attorney present,legitimate expectations, discriminated, responded, promotion, degree of control, average person,general population, discharging, retaliation, permission, performing, supervisor
Christopher Jay Dudley, Plaintiff, Pro se, Rocky Mount, VA.For McCarty, Inc., Defendant: Adam J. Rocco, LEAD ATTORNEY, PRO HAC VICE, VORYS, SATER,SEYMOUR & PEASE, LLP, COLUMBUS, OH; Steven R. Becker, LEAD ATTORNEY, VORYS, SATER,SEYMOUR AND PEASE, LLP, WASHINGTON, DC; Steven R. Miller, LEAD ATTORNEY, PRO HAC VICE,VORYS, SATER, SEYMOUR AND PEASE, LLP, CINCINNATI, OH.For McDonald's, Defendant: Gregory Branch Robertson, James Fielding Douthat, Jr., LEADATTORNEYS, HUNTON & WILLIAMS, LLP - RICHMOND, RICHMOND, VA.
Samuel G. Wilson
This is an action by plaintiff, Christopher Dudley, acting
pro se
, against the defendants, 4-McCar-T,Inc. ("4-McCar-T"), his employer, a McDonald's Corporation ("McDonald's") franchisee, andMcDonald's, alleging violations of Title VII of the Civil Rights Act,42 U.S.C. § 2000e
et seq.
("TitleVII"), and the Americans with Disabilities Act,42 U.S.C. § 12101
et seq.
Dudley maintainsthat defendants discriminated against him because of his homosexuality, failed to accommodate hisalleged inability to lift more than 20 pounds, and retaliated against him for engaging in protectedactivity.
The matter is currently before the court on cross-motions for summary judgment.
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McDonald's maintains that it has never employed Dudley and is not subject to liability as his employerunder Title VII or the ADA. 4-McCar-T maintains that it never discriminated against Dudley onaccount of his sexual orientation, which incidentally is not protected under Title VII; that Dudley isnot significantly limited in any of life's major activities and is therefore not disabled, and that itnevertheless reasonably accommodated him; that it was unaware that he had engaged in anyprotected activity and, in any event, did not retaliate against him; and that it terminated hisemployment following an event that was the culmination of a pattern of insolence andinsubordination. The court grants the defendants' motions.
The court has jurisdiction to hear this case under28 U.S.C. § 1331.
Larry and Donna McCarty are the sole shareholders and officers of 4-McCar-T, which owns andoperates a McDonald's restaurant franchise in Rocky Mount, Virginia. The franchise agreementrequires that 4-McCar-T follow certain procedures relating to operational practices, inventory control,bookkeeping and accounting, and
management and advertising policies but expressly providesthat 4-McCar-T is not McDonald's agent. Accordingly, 4-McCar-T controls all activities relating toemployment matters at the restaurant, including: hiring and supervising employees, determiningemployee wages, disciplining and terminating employees, determining employee schedules, payingwages, and withholding all applicable employment taxes.Dudley began working at the restaurant in September 2004, where he primarily worked at the drive-through window. Dudley is openly homosexual, and at no point has attempted to conceal that factfrom the defendants. Dudley also maintains a profile page under a pseudonym on MySpace.com, thesocial networking site, where he posts information and pictures relating to his activities as a "femaleimpressionist." In November 2006, Dudley sustained a back injury in a car accident. As a result of theaccident, Dudley claims he could not safely lift more than 20 pounds. As a result of the accident,Dudley's managers placed him on light-duty, and did not ask him to lift anything heavier than 20pounds until April 2007. Between April 2007 and his final day working at the restaurant in July 2007,Dudley
claims that his managers requested that he lift items that exceeded 20 pounds inweight on ten or fewer occasions; however, Dudley received help from coworkers in completing thesetasks on all but two occasions. Dudley acknowledged that, outside of those two instances, his backcondition "never was an issue." (Dudley Dep. 172.)Dudley acknowledges numerous arguments and conflicts with his managers. On February 16, 2006,Dudley argued with one of his managers, Alice Smith. He refused to follow her instructions, andargued that it was not "fair" that she had assigned him a variety of cleaning tasks. Dudley describesthis incident as an "oral altercation" and admits that he and Smith "were both kind of yelling at eachother." (Id. 114-15.) On July 13, 2006, Dudley responded "fuck that" when two other managers, JohnBrown and Virginia Dillon, instructed Dudley to move to the grill area. (Id. 117-18.) Later, when LarryMcCarty chastened him concerning the incident, Dudley responded that McCarty was "acting like abrat," (Id. 119,) resulting in a ten day suspension. In January 2007, Dudley argued with DonnaMcCarty after she informed him that he was not eligible for vacation pay.Dudley nevertheless
began expressing an interest in a promotion to a management positionand spoke to one of his managers, Kenny Waters, regarding this possibility. Waters informed Dudleythat to become eligible for such a promotion Dudley would have to be cross-trained in all of therestaurant's different work stations, including the grill and kitchen areas, where Dudley had receivedlittle training.In June 2007, Larry McCarty discovered that Dudley had posted photographs of the Rocky MountMcDonald's and his coworkers wearing their work uniforms (containing McDonald's logos) on Dudley'sMySpace website. McCarty claims he asked Dudley to remove the photographs that depicted the
Get a Document - by Citation- 2011 U.S. Dist. LEXIS 48076 https://www.lexis.com/research/retrieve?_m=a35b878b6bc43ae529abf9...2 of 8 5/6/2011 6:11 PM
Rocky Mount McDonald's and any McDonald's logos from Dudley's website. Dudley claims that LarryMcCarty told him that he must take down the MySpace page altogether and had six months to changehis lifestyle or he would never receive a promotion. Approximately a week later, Dudley called RonGeib, a regional field operations consultant for McDonald's, to discuss how Dudley could earn apromotion and to express dissatisfaction with the current conditions of his employment at 4-McCar-T.During this conversation, Dudley mentioned
that he intended to speak to an attorney about theworking conditions at the Rocky Mount McDonald's. Geib told Dudley that he should speak to LarryMcCarty regarding his concerns. Afterwards, Geib contacted Larry McCarty and told him that Dudleyhad called and that McCarty and Dudley should speak to resolve their differences. Both Larry McCartyand Geib deny that they discussed at that time Dudley's intention to contact an attorney.On July 11, 2007, one of Dudley's managers, Kenny Waters, overheard Dudley complaining aboutvarious matters relating to his work assignment and the controversy over Dudley's MySpace website,and asked him to stop complaining and focus on his work. The next day, Larry McCarty heard Dudleycomplaining about the same issues and again asked Dudley not to discuss personal matters at work.Dudley admittedly responded: "I will discuss what I want." (Dudley Dep. 116.)Larry McCarty left the room, and Dillon, one of Dudley's managers, asked Dudley to take out thetrash. Dudley replied that he could not lift the trash because of his back condition, but he took it outanyway. Dudley then claimed to have hurt his back, and announced his intention to leave for thehospital.
Larry McCarty requested that Dudley first meet with him to discuss Dudley's behavior,but Dudley told him that he would not have any meetings with McCarty without an attorney present.Dudley then left work without seeking permission and went to the hospital. As Dudley waited in thehospital lobby, Waters and Larry and Donna McCarty arrived and terminated Dudley's employmentbecause of Dudley's repeated insubordination and the fact that he left work that day withoutpermission.Dudley has held a number of different jobs since his termination. He first worked as a cashier atWendy's, but quit to perform construction work for his brother's company, which built homes and boatdocks. Later, Dudley took a position as a waiter at a restaurant. Dudley conceded in his depositionthat he sought no physical accommodations while working at the construction company orrestaurant.
Before filing suit, Dudley filed a charge of discrimination with the Equal Employment OpportunityCommission ("EEOC") on October 15, 2007, and received a right to sue notice on September 30,2009.
McDonald's has moved for summary judgment on the ground that Dudley has presented no evidencesuggesting that McDonald's
was his employer for purposes of his Title VII and ADA claims. Thecourt agrees, and grants the motion.
Summary judgment is appropriate when "the pleadings, the discovery and disclosure materialson file, and any affidavits show that there is no genuine issue as to any material fact and that themovant is entitled to judgment as a matter of law."F
. R. C
. P. 56(c)(2). The party moving forsummary judgment bears the burden of informing the court of the basis for its motion, andidentifying those parts of the record which demonstrate the absence of a genuine issue of materialfact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In reviewing a summary judgmentmotion underRule 56, the court "must draw all justifiable inferences in favor of the nonmovingparty."United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992)(citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
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