Petition for Writ of Certiorari — Allen R. Blair, Petitioner v. Yum Brands, et al.

APPENDIX:

Opinion of the United States Court of

Appeals for the Fifth Circuit,

Blair v. Yum Brands et al

No. 17-60350 (September 7, 2017).

la

Memorandum Opinion of the United

States District Court for the Southern

District of Mississippi,

Blair v. Yum Brand et al,

No. 1:15-cv-400 (April 28, 2017).

15a

Statutory Provisions Involved

The Second Confiscation Act of 1862

President Lincoln's Emancipation

Proclamation.

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Case 1:15-cv-00400-HSO-RHW Document 75 Filed 04/28/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

ALLEN R. BLAIR

V.

YUM BRANDS and TACO BELL

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PLAINTIFF

Civil No. 1:15cv400-HSO-RHW

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS' 1621 MOTION FOR SUMMARY JUDGMENT

BEFORE THE COURT is the Motion [62] for Summary Judgment filed by

Defendants Yum Brands and Taco Bell. This Motion is fully briefed. Having

considered the Motion, related pleadings, the record, and relevant legal authority,

the Court is of the opinion that Defendants' Motion [62] for Summary Judgment

should be granted, and Plaintiff's claims should be dismissed with prejudice.

I. BACKGROUND

A.

Factual background

This case arises out of Plaintiff Allen R. Blair's ("Plaintiff' or "Mr. Blair")

employment at a Taco Bell restaurant in Gulfport, Mississippi. Mr. Blair worked as

an at-will employee at Taco Bell from May 12, 2015, until he was terminated on

December 4, 2015. Decl. of Nicholas "Nick" Moret [62-1] at 2-3; Pl.'s Dep. [62-2] at

67. Mr. Blair worked at the restaurant in several different capacities. Pl.'s Dep.

[62-2] at 61-62. Sometimes Mr. Blair would take orders; at other times, he would

prepare food or clean. Id. at 62.

Case 1:15-cv-00400-HSO-RHW Document 75 Filed 04/28/17 Page 2 of 13

While he was working on the clock and taking orders at Taco Bell, Mr. Blair

was asked by management to solicit customers to complete customer service

satisfaction surveys. Id. at 62, 63. According to Mr. Blair, his general manager and

area coach would receive bonuses for having customers complete the surveys. Id. at

62-63. Mr. Blair complains that he did not receive any part of these bonuses. Id. at

63.

After Mr. Blair realized management was receiving bonuses, he refused to

solicit surveys from customers, id. at 102, on grounds that it was not part of his job

description to solicit surveys from customers, id. at 102-03. Mr. Blair alleges that if

he did not obtain completed customer surveys, he feared that he would not be

scheduled for as many hours on the work schedule. Id. at 103-04.

Mr. Blair also charges that there were two weeks where Taco Bell was shut

down due to water contamination. Id. at 64, 104. Despite being scheduled to work

for the first week, Mr. Blair was not able to work either week due to the

restaurant's closure. Id. Mr. Blair voiced a request for a "hardship payment" for

these two weeks on an employees' group chat software application ("app"), for which

he says he was disciplined by management. Id. Mr. Blair maintains that he was

therefore denied his freedom of speech. Id. at 63-64.

According to Nick Moret ("Mr. Moret"), the "area coach" who managed this

Taco Bell location in Gulfport, Taco Bell counseled and disciplined Mr. Blair several

times during his short employment with the company, and terminated Mr. Blair

"after an investigation determined that Mr. Blair attempted to steal a customer's

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cell phone." Decl. of Nicholas "Nick" Moret [62-1] at 3, 4; see also Corrective Action

Reports [62-1] at 19-21.

During his employment at Taco Bell, Mr. Blair was paid an hourly wage and

was required to clock-in at the beginning and end of a shift, using a unique

employee identification number. Decl. of Nicholas "Nick" Moret [62-1] at 4; Timelog

Reporting [62-1] at 22-28; Pl.'s Dep. [62-2] at 68. According to records submitted by

Taco Bell, Mr. Blair was paid $7.50 an hour when he was hired and was being paid

$7.60 per hour at the time of his termination. Decl. of Nicholas "Nick" Moret [62-1]

at 4; Pay Records [62-1] at 29-43. It is undisputed that Mr. Blair never worked

more than 40 hours during a workweek and was paid by Taco Bell every two weeks.

Decl. of Nicholas "Nick" Moret [62-1] at 4; Timelog Reporting [62-1] at 22-28; Pay

Records [62-1] at 29-43; Pl.'s Dep. [62-2] at 69, 72.

Every two weeks, Mr. Blair signed a payroll report supplied by Taco Bell

confirming that the hours listed on the payroll report were the actual hours he had

worked. Decl. of Nicholas "Nick" Moret [62-1] at 4; Pl.'s Dep. [62-2] at 69-70. Taco

Bell has presented competent summary judgment evidence that Mr. Blair was paid

for all hours that he worked during his time at Taco Bell. Decl. of Nicholas "Nick"

Moret [62-1] at 4; Timelog Reporting [62-1] at 22-28; Pay Records [62-1] at 29-43.

Taco Bell provided multiple avenues for its employees to report if they felt

that they were not being paid for all hours worked. Id. According to Mr. Moret's

sworn Declaration, "Mr. Blair did not report any concerns about his pay or incorrect

hours logged during his employment." Id.

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B.

Procedural history

Plaintiff filed apro se Complaint [1] in this Court on December 7, 2015,

alleging that he was terminated from Taco Bell on December 6, 2015, "because [he]

gave voice to [his] civil rights being violated." Compl. [1] at 3-4. Plaintiff alleged

that the "extent of [his] employment was 'slavery" because hours he worked were

not processed in payroll if he "wouldn't adheed [sic] to the area coach and general

manager [sic] wishes for profitable benefits." Id. at 3. Plaintiff asserted that he

was entitled to relief because slavery was abolished in 1865; presumably, Plaintiff

was referring to the Thirteenth Amendment to the United States Constitution. Id.

Plaintiff sought $250,000,000.00 in damages. Id. at 5.

On February 17, 2016, Defendants moved [9] to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6), or in the alternative for the Court to order Plaintiff

to provide a more definite statement pursuant to Rule 12(e). On March 21, 2016,

the Court granted Defendants' Motion [9] to Dismiss but allowed Plaintiff leave to

file an Amended Complaint. Order [21] at 6.

Plaintiff filed an Amended Complaint [24] on March 22, 2016, which asserts

that during his employment at Taco Bell, Plaintiff was "exposed to slavery, by

general manager and area coach," and "leaders within employers' companys [sic]

'force' [Plaintiff] to obtain surveys in which leaders received bonuses for good

surveys." Am. Compl. [24] at 2. Plaintiff contends that "team members do not

receive bonuses," and charges that "begging or harassing customers for a survey to

obtain entitled labor hours is slavery" because Plaintiffs only duties as a team

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member were to "take orders, make the food, and clean entire building." Id.

According to the Amended Complaint, if Plaintiff "did not obtain surveys, hours

would be abstracted [sic] from time card, and or [sic] schedule." Id. at 3. Plaintiff

"rebelled against [his] indecent involuntary servitude" on December 6, 2015, and

was allegedly terminated as a result. Id.

On April 4, 2016, Defendants filed a Second Motion to Dismiss [25] pursuant

to Federal Rule of Civil Procedure 12(b)(6). 2d Mot. to Dismiss [25] at 1-2. The

Court granted Defendants' Motion [25] in part as to any slavery and involuntary

servitude claims, and dismissed those claims with prejudice. Order [33] at 6. The

Court denied Defendants' Motion [25] as to any wage claims. Id.

Defendants have now filed a Motion for Summary Judgment [62] seeking

dismissal Plaintiffs remaining claims. Mot. [62] at 1-2. According to Defendants,

Mr. Blair was paid for each hour that he worked, was paid above the minimum

wage rate, and never worked overtime, rendering summary judgment appropriate

as to any wage claims. Mem. [63] at 2, 8-10.

Mr. Blair responds that he "suffered severe violations to free-man civil rights"

and "was denied freedom of speech." Resp. [64] at 2. In his unsworn Brief [65], Mr.

Blair refers to evidence of "time manipulation," wherein the general manager

"manually typed in the total amount of hours during work two-week periods." Br.

[65] at 3. Mr. Blair contends that "[l]eaders are encouraged to do what they must,

as far as, always keeping sales over labor costs" and that he was forced to sign

affirmation documents regarding the hours he had worked in order to receive his

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paycheck. Id. at 4. Mr. Blair further alleges that he did not report any

discrepancies due to threats to his employment. Id. at 8.

Mr. Blair also claims for the first time in his Brief that Defendants violated

"equality of treatment within the company," referencing the Equal Protection

Clause of the Fourteenth Amendment, id. at 5, and disputes management's

explanation of the incidents which formed the basis of the disciplinary Corrective

Action forms he received during his tenure at Taco Bell, id. at 5-7. Mr. Blair also

cites Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII")

for the first time in his Brief in opposition to summary judgment. Id. at 10.

II. DISCUSSION

A.

Relevant legal standard

Rule 56(a) provides that 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). If the movant

carries this burden, "the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial." Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

To rebut a properly supported motion for summary judgment, the opposing

party must show, with "significant probative evidence," that there exists a genuine

issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.

2000). "A genuine dispute of material fact means that evidence is such that a

reasonable jury could return a verdict for the nonmoving party." Royal v. CCC&R

Case 1:15-cv-00400-HSO-RHW Document 75 Filed 04/28/17 Page 7 of 13

Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the

evidence is merely colorable, or is not significantly probative, summary judgment is

appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671

F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986)). In deciding whether summary judgment is appropriate, the Court

views facts and inferences in the light most favorable to the nonmoving party. RSR

Corp. v. Intl Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010).

B.

Defendants' Motion for Summary Judgment will be granted.

Plaintiffs wage claims should be dismissed with prejudice.

Plaintiffs wage claims turn upon whether he was paid the agreed-upon

wages for the hours he worked.' The competent summary judgment evidence

demonstrates that Plaintiff was an hourly, at-will employee. Defendants have

submitted evidence that Plaintiff was paid the agreed-upon hourly rate for each

hour that he worked. Plaintiff has not presented any competent summary

judgment evidence creating a fact question on these claims.

While Plaintiff makes a conclusory allegation in his unsworn Brief [65] that

there is evidence of "time manipulation" by the general manager, he has supplied no

competent summary judgment evidence to support this assertion. Moreover,

Liberally construing Plaintiffs pro se pleadings, it appears that he is asserting claims

under state law for allegedly unpaid wages. Whether Plaintiff is advancing such a claim

under a theory of breach of contract, unjust enrichment, conversion, or the like, the Court is

of the view that all such claims would require Plaintiff to show that he was not paid the

agreed-upon wages for the hours he actually worked. Because Plaintiff has not created a

genuine issue of material fact on this question, Defendants are entitled to summary

judgment.

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Plaintiff testified under oath at his deposition that he had signed the payroll reports

confirming that the hours for which he was paid were correct and that he did not

know if those hours were changed. Pl.'s Dep. [62-2] at 103. Plaintiffs concern was

instead that he would be removed from the schedule for future hours if he did not

have customers complete the surveys. Id. at 103-04. However, even if Plaintiffs

future working hours were reduced on the schedule due to failure to obtain surveys,

Plaintiff has not cited any evidence or authority to support the notion that, based

upon the facts of this specific case, he can assert a state-law wage claim on this

basis.

Plaintiff also complains that he did not receive part of management's bonuses

for completed customer surveys or a hardship payment for the period in which the

restaurant was closed for two weeks. Plaintiff has cited no evidentiary or legal

authority demonstrating that he was owed any payment for this under his

relationship with Taco Bell.

To the extent Plaintiff is attempting to pursue a claim related to unpaid

minimum or overtime wages under the Fair Labor Standards Act ("FLSA"), 29

U.S.C. § 201, et seq., Defendants have shown that any such claims should be

dismissed with prejudice. The FLSA "governs minimum wages and maximum

hours for non-exempt 'employees who in any workweek [are] engaged in commerce

or in the production of goods for commerce, or [are] employed in an enterprise

engaged in commerce or in the production of goods for commerce." Sandifer v. U.S.

.

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Case 1:15-cv-00400-HSO-RHW Document 75 Piled 04/28/17 Page 9 of 13

Steel Corp., 134 S. Ct. 870, 875 (2014) (quoting 29 U.S.C. § 206(a) (minimum

wages); § 207(a) (maximum hours)).

During the period of Plaintiffs employment, the FLSA required an employer

to pay each employee not less than $7.25 an hour. 29 U.S.C. § 206(a)(1)(C). "The

FLSA requires covered employers who employ their employees for hours in excess of

forty hours per week to compensate those employees for the additional hours at a

rate of at least one and one-half times the regular rate." Bodle v. TXL Mortg. Corp.,

788 F.3d 159, 162 (5th Cir. 2015) (citing 29 U.S.C. § 207(a)(1)).

The record is clear that Plaintiff was paid above the federally-mandated

minimum wage of $7.25 per hour and that he never worked more than 40 hours in

one workweek. Plaintiff has not created a jury question as to any potential claim

under the FLSA.

Viewing all facts and inferences in the light most favorable to Plaintiff, he

has not shown the existence of a genuine issue of material fact as to any wage

claims. Plaintiffs conclusory allegations in response to Defendants' Motion for

Summary Judgment are insufficient, and his wage claims will be dismissed with

prejudice.

2.

Plaintiffs claims under the Thirteenth Amendment have already been

dismissed with prejudice.

Liberally construed, Plaintiffs Amended Complaint asserted a claim under

the Thirteenth Amendment. This claim has already been dismissed with prejudice.

See Order [33] at 6. Plaintiff nevertheless persists in this argument. See, e.g., Br.

[65] at 10; Pl.'s Dep. [62-2] at 61. To the extent Plaintiff continues to assert a claim

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under the Thirteenth Amendment, Defendants' request for summary judgment will

be granted for the same reasons stated in the Court's previous Order [33]. See

Order [33] at 4-5.

3.

Any freedom of speech claim under the First Amendment or eQual

protection claim under the Fourteenth Amendment should be dismissed

with prejudice.

Plaintiff stated in his deposition that he was making a claim under the First

Amendment because he was purportedly denied freedom of speech related to his

comments on the employees' group chat app on the subject of his requested

"hardship payments." Pl.'s Dep. [62-2] at 63-64. In opposition to summary

judgment, Mr. Blair raises for the first time an allegation that Defendants also

violated "equality of treatment within the company," and references the Equal

Protection Clause of the Fourteenth Amendment. Br. [65] at 5, 11.

Plaintiff raised no First or Fourteenth Amendment claims in his pleadings

before he filed his Brief in response to summary judgment on February 17, 2017,

over six months after the deadline for amending pleadings set forth in the Case

Management Order [41]. To the extent Plaintiff is seeking leave to amend his

Complaint, his request is untimely and will be denied. The record evidences undue

delay and bad faith or dilatory motive by Plaintiff in not asserting such claims

earlier. See SGIC Strategic Glob. Inv. Capital, Inc. v. Burger King Europe GmbH,

839 F.3d 422, 428 (5th Cir. 2016). Plaintiff has had ample opportunity to amend his

Complaint, and permitting such a late amendment would unduly prejudice

Defendants. See id.

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Even if Plaintiff could amend his pleadings at this late date to assert a First

or Fourteenth Amendment claim, such claims would fail on their merits. See id.

"Title 42 U.S.C. § 1983 provides a vehicle by which a plaintiff may seek redress for

constitutional injuries." World Wide St. Preachers Fellowship v. Town of Columbia,

591 F.3d 747, 752 (5th Cir. 2009); see also, e.g., Howell v. Town of Ball, 827 F.3d

515, 522 (5th Cir. 2016) (First Amendment claim); Gibson v. Tex. Dept of Ins.

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Div.

of Workers' Comp., 700 F.3d 227, 238 (5th Cir. 2012) (Equal Protection clause of the

Fourteenth Amendment claim). "Title 42 U.S.C. § 1983 provides a cause of action

against '[e]very person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State

.

.

.

subjects.

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.

any citizen of the United States.

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.

to

the deprivation of any rights, privileges, or immunities secured by the

Constitution." Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1420 (2016)

(quoting 42 U.S.C. § 1983).

For Mr. Blair to prevail on a § 1983 claim, a state actor must have deprived

him of a constitutional right. See id. Mr. Blair has not alleged or shown that either

Defendant was acting under color of state law. See id.; Cornish v. Corr. Servs.

Corp., 402 F.3d 545, 549 (5th Cir. 2005). Defendants' Motion for Summary

Judgment as to any First and Fourteenth Amendment claims will be granted.

4.

Any claim under Title VII should be dismissed with prejudice.

Plaintiff refers to Title VII in his Brief in opposition to summary judgment.

Br. [65] at 10. Plaintiff did not raise such a claim until he filed his Brief on

February 17, 2017, over six months after the deadline for filing amended pleadings.

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Any request to amend the Complaint to add such a claim is grossly untimely, would

unduly prejudice Defendants, and will be denied. See SGIC Strategic Glob. I nv.

Capital, Inc., 839 F.3d at 428.

Moreover, permitting an amendment to add a Title VII claim would be futile.

See id. Mr. Blair's Brief does not contain sufficient factual matter, accepted as true,

to state a claim for relief that is plausible on its face, nor does he offer any

substantive argument on this claim. Mr. Blair has not supplied any competent

summary judgment evidence to support such a claim. See Alkhawaldeh v. Dow

Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (delineating elements of Title WI claim

of which an employee must produce evidence in order to satisfy his initial burden at

summary judgment).

To the extent Mr. Blair now attempts to assert a Title WI claim, there is also

no indication that he filed a charge of discrimination with the United States Equal

Employment Opportunity Commission ("EEOC"), which is fatal to such a claim. See

42 U.S.C. § 2000e-5(e)(1); see also, e.g., Cruce v. Brazosport Independent School

Dist., 703 F.2d 862, 863 (5th Cir. 1983) (although filing of an EEOC charge is not a

jurisdictional prerequisite, it "is a precondition to filing suit in district court").

Defendants' Motion for Summary Judgment should therefore be granted as to any

Title WI claim.

III. CONCLUSION

To the extent the Court has not addressed any of the parties' arguments, it

has considered them and determined that they would not alter the result.

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Defendants' Motion for Summary Judgment should be granted, and Plaintiffs

claims against Defendants should be dismissed with prejudice.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [62]

for Summary Judgment filed by Defendants Yum Brands and Taco Bell is

GRANTED, and Plaintiff Allen R. Blair's claims against Defendants Yum Brands

and Taco Bell are DISMISSED WITH PREJUDICE.

SO ORDERED AND ADJUDGED, this the 28th day of April, 2017.

4€d Sdeqmai Ocedet

4/

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE

13

r:.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-60350

Summary Calendar

FILED

September 7, 2017

Lyle W. Cayce

Clerk

ALLEN R. BLAIR,

Plaintiff Appellant

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V.

Y[JM BRANDS; TACO BELL,

Defendants Appellees

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Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:15-CV-400

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Allen Blair appeals the district court's judgment against him on his

claims stemming from his employment at a Mississippi Taco Bell. He alleges

that Defendants violated the Thirteenth Amendment and his right to free

speech. Construed liberally, he also alleged violations of state wage laws and

the Fair Labor Standards Act and referenced the Fourteenth Amendment and

Pursuant to 5TH dR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

*

CIR. R. 47.5.4.

ra.

I

0

No. 17-60350

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., in his

summary judgment briefing.

We have carefully reviewed the district court's memorandum opinion

and order and the parties' briefs in light of the pertinent portions of the record.

We AFFIRM for substantially the same reasons given by the district court.

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p

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

V.

YUM BRANDS and TACO BELL

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PLAINTIFF

Civil No. 1:15cv400-HSO-RHW

DEFENDANTS

FINAL JUDGMENT

This matter came on to be heard upon the Motion [62] for Summary

Judgment filed by Defendants Yum Brands and Taco Bell. The Court, after a full

review and consideration of the pleadings on file, the record as a whole, and

relevant legal authority, finds that in accord with its Memorandum Opinion and

Order entered this date,

IT IS, THEREFORE, ORDERED AND ADJUDGED, that this civil action

is DISMISSED WITH PREJUDICE.

SO ORDERED AND ADJUDGED, this the 28th day of April, 2017.

Sdeqmt edet

HALIL SULEYMAN OZERDEN

UNITED STATES DISTRICT JUDGE