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Fite v. Comtide Nashville

February 19, 2010

LEWIS FITE, DWAYNE COLEMAN, CHARLES KIRK, DEANGELIS ASHFORD, GIL PEARSALL AND CEDRIC HEMPHILL, PLAINTIFFS,
v.
COMTIDE NASHVILLE, LLC, COMTIDE S, LLC, COMTIDE CAR UNIVERSE, LLC, NISSAN OF COOL SPRINGS, LLC, VINCENT ROBERT CACCESE AND MICHAEL MCLEAN, DEFENDANTS.



The opinion of the court was delivered by: Judge Trauger

MEMORANDUM

Pending before the court are the following motions filed by the defendants: (1) Motion to Dismiss Complaint Against Michael McLean; (2) Motion to Dismiss [pursuant to Fed. R. Civ. P. 12(b)(6)] and (3) Motion for Summary Judgment. (Docket Nos. 22-24.) For the reasons discussed herein, the court will grant the Motion to Dismiss as to Mr. McLean and will dismiss him from the case, without prejudice. While the Rule 12(b)(6) Motion to Dismiss is untimely, in the interests of justice, the court will interpret that motion as a supplement to the Motion for Summary Judgment. In large part, the court will deny the defendants' Motion for Summary Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs are African-Americans who worked at Nissan of Cool Springs (NOCS), a defendant in this case and a car dealership that was located in Franklin, Tennessee.*fn1 Plaintiffs Lewis Fite, Charles Kirk, DeAngelis Ashford, Dwayne Coleman, and Cedric Hemphill were hired to work as salespeople at NOCS, and plaintiff Gil Pearsall was initially hired to sell used cars at Comtide Car Universe before being transferred to a salesperson position at NOCS. The plaintiffs all worked for NOCS for a relatively brief period, all starting in September 2007 and leaving no later than January 29, 2008.

During their employment, each plaintiff had some degree of contact with defendant Vincent Caccese, who was hired as the General Manager of NOCS in November 2007. NOCS was one dealership of several in a Franklin, Tennessee "Complex," where various car dealerships selling different (but associated) brands of cars were located. During the relevant time period, the General Manager of that Complex was defendant Michael McLean, and he supervised Caccese, amongst others.

The precise association between the specific "Comtide" entities sued by the plaintiffs and NOCS remains unclear. "Comtide" was, to some extent, responsible for NOCS. As the defendants recognize, an individual named Dan Schmidt owned NOCS and the Comtide companies, and Schmidt was one of Caccese's supervisors. (Docket No. 31 at 3, 13.) Additionally, the "Controller" at NOCS, Lisa Ruffner, submitted an affidavit in which she stated that her immediate supervisor during the relevant time period was located in the "Comtide Corporate Office." (Docket No. 24 Ex. B at 2.)

The defendants, however, assert that the Comtide entities sued were not all responsible for the plaintiffs' employment. The defendants have submitted the affidavit of Michael Feyes, a "corporate officer" at Martin Management Services, Inc. (MMSI). (Docket No. 24 Ex. D at 1-2.) Mr. Feyes states that, on January 14, 2009, the Comtide entities and NOCS went into Receivership and that MMSI was appointed as the Receiver. (Id.) Mr. Feyes further states that the Comtide entities and NOCS constitute four "separate legal entities . . . [and] [e]ach had its own separate management team that included, but [was] not limited to, General Manager, Sales Manager, Controller, and Sales." (Id. at 2.) Further, Feyes claims that the four entities were sold to R.C. Alexander Group on August 31, 2009, and each "required a separate closing." (Id.)

Further factual background on each plaintiff is appropriate.

A. Lewis Fite

Plaintiff Fite was hired by NOCS on September 3, 2007 and left NOCS by walking off of the job on January 18, 2008. (Docket No. 29 Ex. 1 at 29.) While Fite was hired as a salesperson, on October 1, 2007, he was promoted to Floor Manager, which gave him additional responsibilities, including overseeing the work of some of his co-plaintiffs. About a month before the end of his brief employment, Caccese also gave Fite the role of Finance Manager, after significant problems were discovered with the performance of the previous Finance Manager. While at NOCS, Fite reported directly to Sales Manager Dan Demar. Demar's immediate supervisor was Caccese.

At his deposition, Fite testified that, from the time Caccese arrived in the "middle of November to the time [Fite] left in January," Caccese (joined by Demar) subjected him to daily racial harassment, including repeatedly referring to Fite as a "good Muslim," making racist jokes in Fite's presence, and making racist comments about customers, including the comment that African-Americans are "always try[ing] to get something for nothing." (Docket No. 29 Ex. 1 at 34-37.) At his deposition, Fite testified that Caccese and Demar were biased against other minorities as well, consistently referring to Eastern Indian people as "darts" and expressing a strong dislike of Jewish people. (Id. at 102.)

Most notably, Fite testified that, on one occasion shortly after Caccese started working at NOCS, Caccese told Fite that he planned to "lighten up the place." (Id. at 40-41.) Fite testified that he interpreted that comment to mean that Caccese was going to fire dark-skinned people and hire light-skinned people. (Id.) According to Fite, this interpretation was confirmed when a "few hours later you've got Caucasian applicants coming in interviewing for jobs and [Caccese] said 'this is what I'm talking about.'" (Id.) That is, Fite claimed that Caccese made the "lighten up" comment to him and, then, in short order, Fite observed Caucasian individuals interviewing for jobs at NOCS, and Cassese then indicated to Fite that the prospective employees would "lighten up the place."

Fite testified that, after repeatedly telling Caccese that his jokes and comments were "not cool" and asking him to stop, he brought his concerns to defendant Michael McLean just before Christmas 2007. (Id. at 38-39.) While Fite testified that McLean listened intently to Fite's concerns about Caccese and Demar, ultimately, McLean made himself unavailable to Fite following the meeting and did not take any substantive steps to address Fite's concerns. (Id.)

Fite also testified that, shortly after Caccese's arrival, Caccese changed the pay scale for the two African-American floor managers, that is, Fite and plaintiff Coleman. Specifically, Fite testified that, while nothing substantive happened to the pay of white managers, his pay (along with Coleman's) was reduced from about $7,000 per month (paid in weekly checks) to about $1,000 per month (paid in a single "bonus check"), on the justification that Fite's and Coleman's pay was now tied to the profitability of NOCS, which was not profitable at the time.*fn2 (Id. at 54-55, 58-66.) Fite also testified that Caccese did other things to drive him away from NOCS, including, in December 2007, switching Fite's dealership-provided vehicle from a high-end model to a low-end base model. (Id. at 100.) Fite testified that, in light of the comments, the drastic reduction in pay and other slights connected to his race, he walked off of the job on January 18, 2008. (Id. at 30.)

As discussed below, many of the plaintiffs make similar allegations of racism at NOCS. The defendants submitted affidavits and other evidence to counter the plaintiffs' claims. For instance, as noted above, the defendants submitted the affidavit of Lisa Ruffner, the Controller at NOCS during the relevant time period, who stated that she had never heard "racial comments, racial slurs or statements with racial overtones" while she was at NOCS. (Docket No. 24 Ex. B at 2.) Dan Demar submitted a similar affidavit, claiming to have never made such comments and claiming that he had never heard Caccese make such comments either. (Docket No. 24 Ex. C.) Former NOCS salesman Mark Harmon, who worked with Caccese, Demar and the plaintiffs throughout the relevant time period, made similar representations. (Docket No. 24 Ex. E.)

In his deposition, Caccese testified that Fite was an "adequate" floor manager who did a "rough" job as Finance Manager. (Docket No. 29 Ex. 7 at 56-59.) As to the circumstances of Fite's departure, Caccese stated that "Mr. Fite walked out and left" his job at NOCS, that is, he "didn't say anything to anybody. [And I n]ever heard from him again." (Id. at 93.) Caccese repeatedly testified that he never used racist language at NOCS and never implied that he would drive out dark-skinned people from NOCS. (Id. at 65, 96-97, 101-105.)

B. Dwayne Coleman

Plaintiff Coleman was hired on September 17, 2007 and left NOCS on January 28, 2008. Like plaintiff Fite, Coleman was promoted to Floor Manager on October 1, 2007, and he reported directly to Demar. Coleman makes allegations that are very similar to Fite's. Coleman testified that, a few days after Caccese began working at NOCS, Caccese began repeatedly referring to him and other African-American employees as "good Muslims" and that this conduct continued, despite Coleman's objecting to it and telling Caccese to stop. (Docket No. 29 Ex. 2 at 51-53.) Coleman testified that Caccese also repeatedly referred to the African-American salespeople as "thugs," "drug dealers" and "rappers." (Id. at 54.) Coleman also confirmed Fite's recollections of Caccese and Demar making extremely negative comments about other ethnic groups, including Jews. (Id. at 56.)

Coleman also stated that, under Caccese's pay restructuring, his pay was drastically reduced and largely consisted of a monthly $1,000 "bonus" check.*fn3 (Id. at 66.) Like Fite, Coleman also testified that Caccese took away his high-end "demo" vehicle and replaced it with a low-end model. (Id. at 77-78.) Coleman testified that he left NOCS because the conditions had become "intolerable," and because Caccese was threatening to punish him with further cuts in pay, demotions, and increased job responsibilities. (Id. at 63, 72-75.)

The defendants submitted the NOCS "Exit Review" paperwork that was prepared by NOCS at the time Coleman left NOCS. That paperwork indicates that Coleman left because he "ha[d] to go back to Louisiana."*fn4 (Docket No. 24 Ex. U.) At his deposition, Caccese testified that Coleman "did a good job" at NOCS and that he "was sorry to see him leave." (Docket No. 29 Ex. 7 at 66-67.) As for why he left, Caccese testified that Coleman told him "that he had some issues that he needed to resolve with his ex and his child back in Louisiana and that he would be leaving." (Id. at 100.) As noted above, at his deposition, Caccese generally denied ever making any racially insensitive comments at the workplace. (Id. at 101-105.)

C. Charles Kirk

Plaintiff Kirk was hired as a salesperson on September 24, 2007, and he walked off of the job on January 29, 2008. Plaintiff Coleman was Kirk's direct supervisor. (Docket No. 29 Ex. 3 at 33.) Kirk testified that, as soon as Caccese arrived, his "draw pay" (that is, the minimum he would be paid per week) was reduced from $500 to $300. (Id. at 40.) The defendants concede that such a reduction in "draw pay" occurred, but they claim that it was an across-the-board cost reduction measure that affected all employees of Kirk's stature. (Docket No. 24 Ex. B at 2.)

Kirk, while not happy with the pay cuts, contends that he left NOCS "because of the name calling." (Docket No. 29 Ex. 3 at 44.) That is, he contends that virtually "every time" they talked, Caccese referred to Kirk as a "good Muslim" or "Muslim" and that this conduct began within days of Caccese's arrival and continued until Kirk left. (Id. at 45-48.) Kirk estimated that Caccese referred to him as a "Muslim" about four times per day. (Id. at 51.) Kirk testified that he complained about the name calling to Fite and Coleman and that they indicated that they were attempting to contact defendant McLean about the issue. (Id. at 59.)

The defendants submitted the NOCS Exit Review paperwork for Kirk, which simply states that he "walked out without saying a word." (Docket No. 24 Ex. U.) At his deposition, Caccese testified that Kirk "had a couple run-ins with the managers," and, following one dispute, he was sent home and simply never returned to work. (Docket No. 29 Ex. 7 at 67-73, 100.) In response to repeated questioning at his deposition, Caccese explicitly denied ever referring to African-American employees as "Muslims." (Id. at 103-104.)

D. DeAngelis Ashford

Plaintiff Ashford was hired as a salesperson at NOCS on September 17, 2007 and was terminated on December 10, 2007. Like the other plaintiffs, Ashford claims that Caccese was a racist and that his racist attitudes infected the workplace. Ashford stated that Caccese repeatedly referred to him by various names that either made crude reference to his skin color (such as "dipstick," "Kit Kat" or "blackjack") or that alluded to notorious African-American movie characters (such as "Cornbread"). (Docket No. 29 Ex. 4 at 67-70, 79-80.) Ashford also testified that Caccese told him that he dressed like a "black thug." (Id. at 73.)

At his deposition, Ashford testified that, on the day that he was terminated, plaintiff Coleman stopped him on the way into the office and told him that "[Caccese] wants to let you go." (Docket No. 29 Ex. 4 at 46.) When Ashford asked Coleman for an explanation, Coleman apparently responded "[Caccese] said you got a driver's license issue [that] came up." (Id.)

Ashford claims that, after this, he went into Caccese's office, where he showed Caccese his valid Tennessee driver's license. (Id. at 48.) Ashford claims that Caccese was unmoved, telling Ashford "this is a free will state, we can terminate you without reason." (Id.) Ashford claims that Caccese gave him the phone number of the DMV, but Ashford's subsequent conversations with the DMV did not reveal any problems with his license. (Id. at 48-50.)

It is undisputed that, during the course of his employment, Ashford had a valid Tennessee drivers' license, but, the defendants claim, he was fired because he was not insurable.*fn5 At his deposition, Caccese recalled little about Ashford, but remembered that he may have had a drivers' license issue. (Docket No. 29 Ex. 7 at 66, 83.) Caccese testified that, when he arrived in November 2007, his superiors (McLean and Dan Schmidt) provided him with a list of employees with insurance/drivers' license issues, including Ashford. (Id. at 84.) Caccese testified that, under the policy in place upon his arrival at NOCS, all employees needed to be insurable and have a valid drivers' license or they would be terminated. (Id. at 88, 108.)

E. Gil Pearsall

Plaintiff Pearsall was hired on September 17, 2007 and was terminated on November 19, 2007. Because he was terminated at about the same time that Caccese arrived, Pearsall had limited exposure to Caccese compared with the other plaintiffs. It is undisputed that, for the two months that he worked at NOCS, Pearsall did not have a valid Tennessee drivers' license.

Rather, Pearsall had a Tennessee ID card and, at hire, he signed a waiver with NOCS agreeing that he would sell cars but could not drive them. Pearsall was apparently able to effectively sell cars despite this limitation.. The drivers' license problem could not be easily remedied because the State of Tennessee would not issue Pearsall a license until he paid a $23,000 child support lien. (Docket No. 29 Ex. 5 at 41.) At his deposition, in describing the circumstances of his termination, Pearsall testified that he "never worked for Dan Demar or Vince Caccese, whatever his name is," because on "the first day" that Caccese was at NOCS, Caccese had plaintiff Fite fire him for not having a valid drivers' license. (Id. at 52-53, 58-60.)

At his deposition, Caccese testified that Pearsall's employment "ended over his ability to have a driver's license." (Docket No. 29 Ex. 7 at 81.) That is, when he was hired in November 2007, Caccese was informed by his superiors that "there were employees that were working that were uninsurable," and that he needed to correct this. (Id. at 81-82.) Caccese testified that he attempted to address this issue with Pearsall, but Pearsall became "very agitated," and "due to the fact that he did not have a driver's license [and] didn't want to talk" about that, Caccese was forced to terminate him. (Id. at 82.)

F. Cedric Hemphill

Plaintiff Hemphill was hired on September 17, 2007 and was fired on December 21, 2007. Like Pearsall, the explanation for Hemphill's termination was that he did not have a valid Tennessee drivers' license, although he did have a valid North Carolina drivers' license and, like Pearsall, at the time that he was hired, he signed a waiver stating that he would sell, but not drive, cars while at NOCS.

Like most of the other plaintiffs, Hemphill testified that he had difficulty at NOCS due to Caccese's and Demar's racist attitudes. He testified that, within four or five days of Caccese's arrival, Caccese began, on a daily basis, repeatedly referring to Hemphill as a "thug," a "Muslim," and a "drug dealer" and that he referred to other African-Americans as "monkeys" and made "black jokes." (Docket No. 29 Ex. 6 at 48, 51-52, 64, 75.) In one incident, when Demar felt that Pearsall was overcharging a customer, Pearsall testified that Demar told him that "you are not in the hood no more" and that "you need to quit with all that f--king thug sh-t." (Id. at 53.) Hemphill also testified that Caccese and Demar made distasteful comments about people of Indian and Jewish descent. (Id. at 54.)

As to the events surrounding his termination, Hemphill testified that, shortly before he was fired, Coleman approached him and told him that there was "an issue" with his drivers' license and that he would be fired if he did not quickly obtain a Tennessee drivers' license. (Id. at 58.) Hemphill testified that he spent two weeks or so trying to identify whether he could obtain a ...


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