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Ronald Newkirk v. Hardee's Food Systems

August 2, 2011

RONALD NEWKIRK, PLAINTIFF,
v.
HARDEE'S FOOD SYSTEMS, INC. AND MJKL ENTERPRISES MIDWEST, LLC, DEFENDANTS,



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Tuesday, 02 August, 2011 10:41:04 AM Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#17) filed by Defendant, Hardee's Food Systems, Inc. ("Hardee's"), and the Motion for Summary Judgment (#18) filed by Defendant, MJKL Enterprises Midwest, LLC ("MJKL"). On July 1, 2011, pro sePlaintiff, Ronald Newkirk, filed Responses (#28 and #29) to the Motions for Summary Judgment.*fn1 On July 5, 2011, MJKL filed a Reply (#30) and Hardee's filed a Reply (#31). This court has carefully considered the arguments presented by all parties. Following this careful and thorough review, MJKL's Motion for Summary Judgment (#18) is GRANTED and Hardee's Motion for Summary Judgment (#17) is GRANTED in part and DENIED in part.

FACTS

On April 19, 2011, Plaintiff, who is African American, filed a pro se Complaint (#1) against Hardee's and MJKL. Plaintiff stated that he was claiming employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e5. In his statement of his claim of employment discrimination, Plaintiff checked that he was discharged and demoted. Plaintiff wrote a summary of the essential facts of his claim. He stated that he complained to the general manager, Kurk Brunner, that his hours were going to white employees and about "the constant black jokes and remarks." Plaintiff alleged that his hours were cut even more and he was demoted from head cook to backup cook. Plaintiff alleged that he complained to someone in the main office and she called him "bullheaded" and told him there was nothing she could do. Plaintiff alleged that the harassment got worse, with more employees making black jokes along with the general manager. Plaintiff alleged that the general manager was trying to get him to quit by making his work difficult and giving him fewer hours.

Plaintiff attached copies of documents related to the charge of discrimination he filed against Hardee's with the Equal Employment Opportunity Commission (EEOC) on October 23, 2007. In his charge of discrimination, Plaintiff claimed that he was harassed during his employment at Hardee's. He claimed that he complained about the harassment but no action was taken. He further claimed that he was discharged on "or about" June 2, 2007. Plaintiff claimed that he was discriminated against because of his race and was retaliated against, in violation of Title VII. On December 8, 2010, John P. Rowe, District Director of the EEOC, sent a Determination to Plaintiff and Hardee's. The Determination stated:

I have determined that the evidence obtained in the investigation establishes reasonable cause to believe that [Hardee's] discriminated against a class of employees, including [Plaintiff], because of their race, Black, in that they were subjected to racial harassment, in violation of Title VII.

This determination is final. When the Commission finds that violations have occurred, it attempts to eliminate unlawful practices by informal methods of conciliation. Therefore, I invite the parties to join with the Commission in reaching a just resolution of this matter.

On March 1, 2011, the EEOC sent Plaintiff a cover letter and a Notice of Right to Sue. The letter stated that the EEOC's efforts to conciliate this matter had been unsuccessful. The letter and the Notice informed Plaintiff that he had 90 days to pursue private litigation concerning his allegations. As previously noted, Plaintiff's pro se Complaint was filed on April 19, 2011.

On June 14, 2011, Hardee's filed a Motion for Summary Judgment (#17). Hardee's stated that Plaintiff's claims that he was discriminated against and retaliated against must fail because Plaintiff was terminated for job abandonment, not based upon discrimination or retaliation. In its statement of undisputed material facts, Hardee's stated that Plaintiff was hired as a morning cook on May 1, 2006, at the Hardee's located in Mattoon, Illinois. On April 24, 2007, Hardee's terminated Plaintiff's employment due to job abandonment when Plaintiff did not report to work when scheduled for two days and did not notify his managers that he would not be able to report to work as scheduled. Hardee's had a policy that under such circumstances an employee would be terminated for job abandonment. Hardee's attached the Declaration of Kim Lucker, Hardee's Regional Human Resources Manager, in support of these facts. Lucker stated that her Declaration was based upon her personal knowledge and based upon information contained in Hardee's business records.

Hardee's argued that no one could dispute that an employer needs to have its employees report to work when scheduled. Hardee's also argued that an employer cannot tolerate an employee, like Plaintiff, who fails to show up for work for two straight days when scheduled to work without notifying his employer he will not be reporting for work. Hardee's contended that Plaintiff's failure to work when scheduled was a legitimate business reason for terminating Plaintiff's employment. Hardee's argued that it is entitled to summary judgment on Plaintiff's claims because Plaintiff's own failure to report to work when scheduled, not race discrimination or retaliation, was the cause and reason for his termination.

On June 14, 2011, MJKL also filed a Motion for Summary Judgment (#18). MJKL argued that it was entitled to summary judgment because MJKL did not own Hardee's at the time of Plaintiff's termination and MJKL had no involvement in Plaintiff's termination by Hardee's. In its statement of undisputed material facts, MJKL stated that Hardee's owned and operated the Mattoon Hardee's prior to April 16, 2008. On April 16, 2008, MJKL became a franchisee of Hardee's and operated the Mattoon Hardee's after that date. As part of this deal, MJKL did not assume any responsibilities or obligations for any employment action or decision of Hardee's with regard to Plaintiff or any other employee of Hardee's prior to the acquisition date. MJKL stated that it did hire Plaintiff on September 8, 2008, and Plaintiff's employment continued through October 9, 2008. MJKL supported its statement of facts with the Declaration of James Sennott, the Director of Field Human Resources for Hardee's, and the Declaration of Marissa Briseno, the Director of Loss Prevention for MJKL.

On June 14, 2011, the clerk's office sent Plaintiff a Notice (#19) that a case dispositive motion had ...


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