Ofori v . Ruby Tuesday CV-03-367-PB 1/26/06
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Komi Ofori
v. Case N o . 03-cv-367-PB
Opinion N o . 2006 DNH 016
Ruby Tuesday, Inc.
MEMORANDUM AND ORDER
Pro se plaintiff Komi Ofori alleges that his former
employer, Ruby Tuesday, Inc., engaged in acts of racial
discrimination in violation of Title VII of the Civil Rights Act
of 1964 and 42 U.S.C. § 1981. He claims that he was treated
differently from other employees in terms of compensation and
training and that he was constructively discharged. Ruby Tuesday
moves for summary judgment, arguing that there is insufficient
evidence to support Ofori’s claims. Ofori objects and has filed
his own motion for summary judgment. Because I agree with Ruby
Tuesday, I grant its motion and deny Ofori’s motion.
I. BACKGROUND
Ofori, a Black male born in West Africa, worked as a
dishwasher at a Ruby Tuesday restaurant in Manchester from
November 2000 until May 2002. Although he occasionally worked as
a prep cook in addition to dishwashing, Ofori alleges that he was
denied training opportunities to become certified in other
positions. Compl. at 2 .
During most of his employment, Ofori’s wage was $9.00 per
hour.1 He alleges that some dishwashers who were hired after him
received higher initial rates of pay. Ofori also claims that he
was treated unfairly in terms of the distribution of free meals.
When Ofori was hired, the restaurant’s general manager gave
dishwashers one free meal per shift.2 Other employees could
purchase meals at a 40% discount. Kenneth Woodrow became the new
general manager in September 2001 and subsequently suspended the
free meal policy for approximately six months. During this time,
the dishwashers had to pay for meals at the regular employee-
discounted price.
1
Although Ruby Tuesday’s records show that Ofori’s initial
rate of pay was $8.50 per hour, Ofori submitted an “Employee Data
Sheet” that states an initial rate of $8.00 per hour. See P l .
Mot. Summ. J. Ex. C . He concedes that his hourly wage was
increased to $9.00 in January 2001, two months after he was
hired. Ofori Dep. at 2 2 .
2
Ruby Tuesday does not have a company-wide policy allowing
employees to receive free meals while working.
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Ofori claims that Hernan Campo, who is Hispanic, continued
to receive free meals while other employees paid for them. He
bases this allegation on information he obtained from Campo and
other non-management employees. One night at the restaurant,
Campo, who speaks mostly Spanish, said to Ofori, “No food for
[B]lack men.” Ofori Dep. at 2 7 . Ofori, who speaks French,
didn’t understand what Campo meant so he sent Campo to talk with
another Spanish-speaking employee named Georges. Id. Georges
then told Ofori that Campo said that he was not paying for his
food.
Id. Ofori also claims that he heard from another co-
worker that some of the day-shift employees were receiving free
meals.
Id. at 2 9 .
Woodrow reinstated the free meal policy for dishwashers
after Ofori and another employee complained. Id. at 3 1 . After
approximately four months, Woodrow limited the free meal benefit
to certain less-costly menu items, such as hamburgers and
sandwiches.
Id. at 3 2 . A couple of months later, Ofori had an
argument with another manager about his obligation to pay for a
dessert item.
Id. at 3 3 . Woodrow then discontinued free meals
for all employees. Shortly thereafter, Ofori resigned his
position.
Id.
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Ofori filed a Charge of Discrimination with the New
Hampshire Human Rights Commission on August 1 2 , 2002, alleging
race discrimination on the basis of unequal compensation. The
EEOC issued a right-to-sue letter in May 2003 and Ofori filed his
complaint in this court on August 2 0 , 2003.
II. STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). In ruling on a motion for summary judgment, I construe
the evidence in the light most favorable to the nonmovant.
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001).
The party moving for summary judgment “bears the initial
responsibility of . . . identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 ,
323 (1986). Once the moving party has met its burden, the burden
shifts to the adverse party to “produce evidence on which a
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reasonable finder of fact, under the appropriate proof burden,
could base a verdict for i t ; if that party cannot produce such
evidence, the motion must be granted.” Ayala-Gerena v . Bristol
Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996). The “adverse
party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response . . .
must set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e); see also Anderson v .
Liberty Lobby, Inc.,
477 U.S. 2 4 2 , 256 (1986). Evidence that is
“merely colorable or is not significantly probative” is
insufficient to defeat summary judgment. Anderson,
477 U.S. at
249 (citations omitted).
III. ANALYSIS
Ofori alleges disparate treatment in terms of pay, training,
and the distribution of free meals. He also claims that he was
constructively discharged. I analyze Ofori’s claims by using the
familiar burden-shifting framework first established in McDonnell
Douglas Corp. v . Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas analysis, a plaintiff must
establish a prima facie case, which in turn gives rise
to an inference of discrimination. The employer then
must state a legitimate, nondiscriminatory reason for
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its decision. If the employer can state such a reason,
the inference of discrimination disappears and the
plaintiff is required to show that the employer’s
stated reason is a pretext for discrimination.
Kosereis v . Rhode Island, 331 F.3d 2 0 7 , 212 (1st Cir. 2003)
(citations omitted). “The ultimate question in every employment
discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional
discrimination.” Reeves v . Sanderson Plumbing Prods., Inc.,
530
U.S. 133, 153 (2000).
I address each of Ofori’s claims below.
A. Pay discrimination
Ofori bases his pay discrimination claim on the fact that
Hernan Campo, a dishwasher and salad bar attendant, was paid at a
higher hourly rate. Campo was hired in June 2001 at the rate of
$9.00 per hour. His hourly wage was increased to $10.00 in
August 2001 and $10.50 in December 2001. Def. Mot. Summ. J.
Decl. of Kenneth Woodrow (“Woodrow Decl.”), Ex. B (Earnings
History of Hernan Campo).
Ruby Tuesday offers two explanations for Campo’s hourly
wage. First, Campo was paid more than Ofori because he worked as
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both a dishwasher and a salad bar attendant. Furthermore,
management viewed Campo as “extremely efficient and productive
and one of the hardest working individuals in the restaurant.”
Woodrow Decl. ¶ 2 2 . In contrast, Ofori was disciplined at least
once for attendance and tardiness problems. Def. Mot. Summ. J.
Decl. of Jonathon Bara ¶ 6 & Attach. A .
Second, Ruby Tuesday notes that initial pay rates for new
employees are based on several factors, including the employee’s
experience, last pay rate, requested pay rate, and the
restaurant’s current need to fill the position. Woodrow Decl. ¶
20. In particular, the restaurant’s need to fill the position
can vary from month to month and may account for discrepancies in
pay between employees hired for a particular position around the
same time frame. Id. Likewise, pay increases are not based on
seniority but rather on the employee’s work performance,
initiative and attitude.
Id. ¶ 2 1 .
Ruby Tuesday has provided earnings histories for dishwashers
hired during 2001 and 2002 to support its contention that pay
rates were based on the above factors. For example, Bernado
Deolindo, a Hispanic male hired in June 2001, and Rick Eaton, a
White male hired in April 2002, both were given an initial pay
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rate of $8.00 per hour. Woodrow Decl. ¶¶ 8 , 1 3 . Likewise,
Jeremy Rochefort, a White male, and Carlos Martinez, a Hispanic
male, were hired in late April 2002 at the rate of $8.75 per
hour. Woodrow Decl. ¶¶ 1 5 , 1 7 . Dave Lavoie, a White male, was
also hired in late April 2002 as a dishwasher and salad bar
attendant making $9.00 per hour. Woodrow Decl. ¶ 1 6 .
Ofori has not submitted any evidence that suggests that Ruby
Tuesday’s proffered explanations are pretexts for race
discrimination. Instead, he relies on documents from his
unemployment case before New Hampshire Employment Security, in
which Ruby Tuesday admitted that another employee was paid more
than Ofori.3 P l . Mot. Summ. J. Ex. B . Ruby Tuesday does not
deny that some employees were given a higher initial wage than
Ofori; rather, it has offered a legitimate, non-discriminatory
reason for this disparate treatment. Because there is no basis
on which a jury could find that this explanation is a pretext for
discrimination, Ruby Tuesday is entitled to summary judgment on
3
Ofori also makes much of the fact that his friend, Wandja
Kasongo, was initially hired to bus tables in February 2001 at
the rate of $5.15 per hour. However, Kasongo was paid a higher
hourly wage when he worked in other positions and was rehired as
a dishwasher in December 2001 at the rate of $8.50 per hour.
Woodrow Decl. ¶¶ 10-12.
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this claim.
B. Free meals
Ofori claims that during the time period in which Woodrow
suspended the free meal policy, Campo continued to receive free
meals while other dishwashers paid for them. Ruby Tuesday denies
this allegation.4 Answer ¶ 1 2 . Ofori can only point to hearsay
statements by non-management co-workers to support his claim.
When asked whether any White employees ever told him directly
that they were getting free meals, Ofori conceded that Campo (who
is Hispanic) was the only employee who did s o . Ofori Dep. at 2 9 .
Campo’s statement to Ofori, “No food for [B]lack men,” is
ambiguous at best and does not prove improper motivation on the
part of the employer. The other statements that Campo allegedly
made to Georges, who then told Ofori, are inadmissible hearsay.
Because Ofori has not presented any admissible evidence that he
was denied a benefit that another employee received, Ruby
Tuesday’s motion for summary judgment is granted as to this
4
Ruby Tuesday also argues that Woodrow’s decision to revoke
the free meal policy was not a materially adverse employment
action. See Blackie v . Maine, 75 F.3d 716, 725 (1st Cir. 1996).
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claim.
C. Training
Ofori alleges that he was denied opportunities to train for
positions other than dishwashing so that he could receive his 2-
star certification. Ofori Dep. at 4 5 . Ruby Tuesday counters
that Ofori was given the Back-of-the-House (BOH) Certification
Guide and was offered opportunities to train for other positions
but he failed to complete the training and take the necessary
tests to be certified. Woodrow Decl. ¶ 2 4 .
To support his claim, Ofori submitted a document from the
BOH manual showing that he was trained in certain tasks related
to dishwashing. P l . Mot. Summ. J. Ex. F. However, he has not
offered any evidence, other than bare allegations, that he
requested additional training and was denied. Furthermore, Ofori
has not offered any evidence that similarly-situated employees
were given more training opportunities than he was given.
Accordingly, Ruby Tuesday’s motion for summary judgment is
granted as to this claim.
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D. Constructive Discharge
Ofori alleges that he resigned his position at Ruby Tuesday
because Woodrow eliminated the free meal policy and denied
Ofori’s requests for a pay raise. Ofori Dep. at 3 5 . As
discussed above, Ofori has not established that he was
discriminated against in terms of pay, training or the receipt of
free meals. These claims form the basis of Ofori’s allegation
that he “had no choice but to quit.” Compl. at 3 . Because a
reasonable jury could not find that Ofori was constructively
discharged, Ruby Tuesday is entitled to summary judgment on this
claim.
IV. CONCLUSION
Ruby Tuesday’s Motion for Summary Judgment (Doc. N o . 26) is
granted and Ofori’s Motion for Summary Judgment (Doc. N o . 28) is
denied. The clerk is instructed to enter judgment accordingly.
SO ORDERED.
/ s / Paul Barbadoro
Paul Barbadoro
United States District Judge
January 2 6 , 2006
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cc: Komi Ofori, pro se
Cornelius Heusel, Esq.
Jennifer Parent, Esq.
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