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Dodson v. Flying Dove, Inc.

United States District Court, D. Kansas

April 30, 2019

EMORI DODSON, Plaintiff,
FLYING DOVE, INC. d/b/a IHOP #2045, Defendant.


          Sam A. Crow, U.S. District Senior Judge.

         The plaintiff Emori Dodson brings this Title VII action claiming the defendant employer unlawfully reduced her hours as a food server and then terminated her employment on account of her pregnancy, race, gender, and/or religion. The defendant is the franchised operator of the IHOP restaurant in Hays, Kansas, which hired Ms. Dodson in July of 2015 and terminated her in November of 2017. Ms. Dodson believes her hours were reduced and she was terminated because she was a white, non-Muslim woman who was pregnant from a relationship with Mr. Abass Fares, a cook at the restaurant and the brother-in-law of the restaurant's manager, Mr. Adham Saleh. Both Mr. Fares and Mr. Saleh are Arab Muslims. The defendant moves for summary judgment arguing that the plaintiff's evidence of race and religion discrimination is insufficient to state a prima face case and that the plaintiff's evidence of alleged discrimination on any ground is insufficient to allow the jury to disbelieve the defendant's reasons for first changing the plaintiff's shifts and later terminating her.


         Summary judgment is appropriate “if the movant shows that 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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding the motion, the court's role is “is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court may grant summary judgment for lack of a genuine issue when the evidence is insufficient “for a jury to return a verdict, ” when “the evidence is merely colorable, ” or when the evidence “is not significantly probative.” Id. It follows then that a genuine issue for trial exists when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

         The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden is met “by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler, 144 F.3d at 671. The burden then shifts to the nonmovant to “go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial from which a rational fact finder could find for the nonmovant.” Id. (internal quotation marks and citations omitted). Such facts “must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id.

         The court applies this standard drawing all inferences arising from the record in the nonmovant's favor. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). The court does not make credibility determinations or weigh the evidence; these are jury functions. Id. at 1216. The Tenth Circuit has counseled this for summary judgment proceedings in employment discrimination cases:

[I]n the context of employment discrimination, “[i]t is not the purpose of a motion for summary judgment to force the judge to conduct a ‘mini trial' to determine the defendant's true state of mind.” Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995). Many of the highly fact-sensitive determinations involved in these cases “are best left for trial and are within the province of the jury.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he inquiry [at summary judgment is] whether the evidence presents a sufficient disagreement to require submission to a jury....”). Consequently, “in this Circuit . . . an employment discrimination suit will always go to the jury so long as the evidence is sufficient to allow the jury to disbelieve the employer's [explanation for the alleged misconduct].” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th Cir. 1998) (Tacha, J., concurring in part); see Randle, 69 F.3d at 452 (“[I]f . . . inferential evidence is sufficient to allow a plaintiff to prevail at trial, it is surely sufficient to permit a plaintiff to avoid summary judgment so that the plaintiff can get to trial.”).

Lounds v. Lincare, Inc., 812 F.3d 1208, 1220-21 (10th Cir. 2015).


         The court regards the following facts to be uncontroverted for purposes of this order and have been viewed in the light most favorable to the plaintiff.

         The plaintiff Emori Dodson (“Dodson”) describes herself as a 23-year old white Christian woman living in Hays, Kansas. She worked at the Hays IHOP restaurant and was first hired on July 16, 2015. The restaurant's manager since June of 2014 has been Adham Saleh (“Saleh”), and his brother-in-law, Abass Fares (“Fares” or “Dave”) worked as a restaurant cook. Fares lived with Saleh between July and November of 2017, and he began dating Dodson in August of 2017.

         When hired, Dodson signed a form acknowledging receipt of a copy of the Employee Handbook which included rules on calling in when sick and on speaking with the manager on duty when late to work. The rules warned, “IF you do not call or have a no call no show you will be written up, 3 write ups results in termination.” ECF# 35-8, p. 2. Dodson digitally signed the employee handbook on February 12, 2016.

         The restaurant never employed Dodson full-time, and her employment occurred over three separated periods:



Average Hours



16.9 hrs/wk



7.0 hrs/wk



20.3 hrs/wk

         The second highest number of hours that the plaintiff ever worked at IHOP during an 8-week period occurred from 8/14/17-10/8/17, when she averaged 35.2 hrs/wk. The scheduling of Dodson's shifts was not consistent, except for the last few weeks of her employment in 2017 when she worked exclusively the day shifts on Saturdays and Sundays. Dodson preferred working shifts with the best potential for earning tips which she regarded as the evenings and nights on weekends.

         Text messages between Dodson and Saleh show that the plaintiff was late to work on August 13, 17, 20, and 21, and that this upset Saleh. The plaintiff asserts she “was occasionally tardy or missed work” but that she “did not have any more issues than many of the other employees.” ECF# 36-1, ¶ 4. The court sustains the defendant's objections for lack of foundation and supporting evidence to Dodson's averment and also to the statement in Liles' affidavit that Dodson “always showed up for her shifts, ” (ECF# 36-2, p. 1). ECF# 37, p. 2. Both affidavits lack a foundation for personal knowledge. With Dodson, there is nothing to show how she would be competent to compare her attendance issues with those of all other employees. Other than stating her opinion, Dodson's affidavit provides no supporting details about other employees' attendance issues. Liles' affidavit fails to establish a time frame when she worked with Dodson as to opine that she “always showed up for her shifts.” Even assuming the dates in Liles' affidavit should be corrected to 2017, the uncontroverted text messages exchanged between Saleh and Dodson plainly contradict Liles' statement and leaves its support and scope in doubt.

         Shortly after starting her third period of employment, Dodson and Fares began having a sexual relationship, and Dodson made it public knowledge at the restaurant. Saleh observed that Dodson was “a major cause of workplace stress for other employees.” ECF# 35-1, p. 3. Employees told Saleh “that they felt that Dodson was ‘crazy' or ‘psycho.'” Id. While the plaintiff avers she was a “good employee” and “did not cause any disruptions at work, ” she is unable to controvert what other employees may have told Saleh. ECF# 36-1, p. 2.

         On August 8, Dodson texted Saleh at 10:52 pm asking if she could work the next Thursday. ECF# 35-12, p. 3. Saleh said he would get back with her and then asked how she was doing. Id. During this exchange, Dodson told Saleh that she was now a certified med aide and Saleh congratulated her. Id. Saleh then wrote that Dodson, “You are a hard worker. But crazy sometimes.” Id. Dodson responded, “I have to work hard now so i don't have to later. And only the best people are.” Id.

         On August 29, Dodson texted Saleh asking why he had told Fares “not to hang out” with Dodson. ECF# 35-12, p. 18. Saleh responded:

I like u and u already know that and I'm always trying to help u out and always wanna see u doing good in your life and u were but I can't be involved between u and Dave but I'm so sure he was so sad to see u in the jail and was so worried about u and what will happen to u, and he is mean to u that's mean he do care about u and he wants the best for u.

ECF# 35-12, p. 18. This text evidences Saleh's knowledge of Dodson's arrest on August 28, 2017. Fares and Liles were passengers in Dodson's car when she was stopped and arrested for driving under the influence. A search of her vehicle yielded drugs and drug paraphernalia. Saleh avers that after Dodson's arrest, he “became increasingly worried about how Dodson's illicit drug activity was affecting her work as well as my home life.” ECF# 35-1, p. 3. Dodson's objections to evidence of this arrest as irrelevant and inadmissible are overruled, as the evidence is relevant insofar as Saleh has testified he knew of the arrest which created concerns for him over the plaintiff's behavior and its impact on her employment and his home life.

         The next morning, August 30, Saleh started a text exchange during which Dodson threatened to kill herself and expressed concerns over the possibility of her termination. Saleh asked to have coffee with her, and the following was exchanged:

Saleh: Nothing deserve killing yourself for it. Take care.
Dodson: No. I know. But youre just going to fire me.
Saleh: I don't think like that. Silly.
Dodson: Is ihop have to close.
Dodson: Feeling so happy and so sad at the same time, one would think it's a gift.
Saleh: Emori u are a very nice person so don't belittle yourself and it's time to keep focusing to make yourself better and we don't want to give up for any reason.

ECF# 35-12, p. 20.

         Saleh warned Dodson in person and through text messages to keep her personal life with Fares out of the restaurant and not to bring their personal drama to work. Around 6 pm on September 3, Dodson texted Saleh that she could “take a hint” and would “start job hunting.” ECF# 35-12, p. 21. Saleh responded with this warning:

Yes, you are a very good server and I don't want to loose you for some silly things but I prefer you to be more careful about your relation and how if it will be at work with no control then it will be a problem, Fatima and I were so careful for that and it should be like that. Just keep it out side your work zone Have a good night.

Id. Later that same evening, Dodson began exchanging text messages:

Dodson: U know there was no drama or anything bad until u said something. Daniel and josh had more crap going on than we have at all. We came in happy and now its done. Weird I thought itd be one of us to break my heart. Out of all my chaos going on there was one thing keeping me smiling. But now no,
Dodson: White girls are crazy. Will u ever learn lol.
Saleh: Now I know Dodson: Good.
Dodson: And stop messin w our ...

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