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Cosby v. Steak N Shake Operations, Inc.

United States District Court, Eastern District of Missouri, Eastern Division

December 11, 2014



Jean C. Hamilton United States District Judge

This matter is before the Court on Defendant Steak N Shake Operations, Inc.’s Motion for Summary Judgment, filed September 15, 2014. (ECF No. 20). The motion is fully briefed and ready for disposition.


Plaintiff Clarence C. Cosby is a thirty-two year old black male. (Petition for Damages (hereinafter “Complaint” or “Compl.”), ¶ 3). On or before December 30, 2009, Plaintiff was interviewed by Tina Moss, Defendant’s Human Resources Manager, and Thomas Pannullo (“Pannullo”), Defendant’s District Manager. (Statement of Undisputed Material Facts in Support of Defendant’s Motion for Summary Judgment (“Defendant’s Facts”), ¶ 2). Plaintiff was hired by Defendant as a General Manager, the highest managerial position in any given restaurant or store (as they frequently are called), on December 30, 2009. (Id., ¶¶ 1, 3). At the time he began his employment, Plaintiff received a copy of Defendant’s Restaurant Associate Handbook (“Handbook”). (Id., ¶ 26; Defendant’s Exh. C). The Handbook described the types of leave available to employees, including Family Medical Leave Act (“FMLA”) leave, Authorized Inactive Employment (“AIE”) leave, and others not at issue here. (Defendant’s Facts, ¶ 27; Defendant’s Exh. B, PP. 12-17). FMLA leave, designed to provide leaves of absence for family and medical reasons, was available to associates who had worked for Defendant for at least twelve months as of the date the requested leave was to begin. (Defendant’s Exh. B, P. 12). The leave, while generally unpaid, allowed an associate to maintain his or her coverage for medical, dental, short-term disability and life insurance benefits. (Id., P. 15). In contrast, the AIE leave policy operated as follows:

Steak n Shake may provide an unpaid Authorized Inactive Employment (AIE) Leave under certain circumstances. AIE leave is available to those Associates who are in their first year of employment. AIE leaves are discretionary, not job protected and are subject to Steak n Shake’s business needs. They may be granted in increments not to exceed thirty (30) days. All AIE time taken shall be added to the Associate’s service date with the Company and an adjusted service date established. The adjusted service date will be used in determining seniority and eligibility for Company benefits. AIE leave requires the prior approval of the General Manager.
In the event an Associate is granted an AIE leave of absence, the Associate’s benefits will terminate immediately. If the Associate wishes to continue his/her Health and Welfare insurance coverage, they may do so by electing COBRA. Upon return to work, any coverage that was continued through COBRA will be immediately reinstated without a waiting period, enabling the Associate to have uninterrupted coverage while transitioning from COBRA to the group sponsored plan.

(Id., P. 16).

Plaintiff’s employment with Defendant began with centralized training for managers, followed by on-the-job training in several stores under different managers. (Defendant’s Facts, ¶ 3). On or about March 17, 2010, Plaintiff was assigned as General Manager to his own store, Store 60. (Id., ¶ 4). At all times that Plaintiff acted as General Manager of Store 60, Pannullo was his direct supervisor. (Id., ¶ 5).

Defendant measures its stores’ performance by looking at profits, and by using certain metrics, including items such as drive-thru times, customer complaints, food cost variance and labor hours. (Defendant’s Facts, ¶ 6). During 2010, Plaintiff was verbally counseled by Pannullo on several occasions, regarding his ongoing failure to be at work when scheduled

(Plaintiff both missed scheduled shifts and often was tardy), his difficulty in holding his junior managers accountable, and the turnover in his team members that resulted in the restaurant being run understaffed. (Id., ¶ 7). On September 4, 2010, Pannullo issued Plaintiff a written performance counseling, in which he identified six metrics in which Plaintiff’s store was underperforming.[1] (Id., ¶ 8). In the September 4, 2010 memo, Pannullo further stated as follows:

In addition to the above mentioned measures, Clarence has had issues regarding being at the restaurant when scheduled, holding his managers accountable and has lost team members and been forced to run understaffed. Clarence and I have had several verbal discussions regarding the above mentioned incidents without a correction in course. This documentation is to serve as a warning that if performance and leadership does not change immediately further disciplinary action will result, up to and including termination.

(See Defendant’s Exh. P). Plaintiff signed the September 4, 2010, performance counseling memorandum without comment. (Id.).

On October 26, 2010, Pannullo issued Plaintiff a second written performance counseling, titled a “Conversation Confirmer.” (Defendant’s Facts, ¶ 11). This document noted that Plaintiff had missed a shift on October 17, 2010, and had failed to improve the store’s metrics. (See Defendant’s Exh. Q). It further stated that Plaintiff had failed to complete a new product roll-out by the October 25, 2010 deadline. (Id.). The Conversation Confirmer continued as follows:

Based on Clarence’s failure to move the store forward after our last counseling, I informed Clarence of my intention to take him out of the GM position. Clarence understands that failure to conduct himself in a professional manner and failure to maintain his store short term can result in further disciplinary action, up to and including termination.

(Id.). Rather than terminate Plaintiff’s employment, Pannullo instead decided to demote Plaintiff to the position of Restaurant Manager, a position one step below General Manager. (Defendant’s Facts, ¶ 18). Plaintiff admits that he received the performance counseling on or about October 26, 2010, and that he signed the October 26, 2010, Conversation Confirmer without comment. (Id., ¶¶ 15, 16). Plaintiff’s demotion to Restaurant Manager went into effect on November 17, 2010. (Id., ¶ 19).[2]

At some point in late October or early November, 2010, Plaintiff informed Pannullo that he was having problems at home and might need to take a leave of absence. (Defendant’s Facts, ¶ 21). Specifically, Plaintiff told Pannullo that his then-girlfriend was moving to Kansas City, and taking their young son with her. (Id.).[3] Plaintiff then failed to show up for work on November 8, 2010, and for the following eight days. (Id., ¶ 22). Defendant had no notice that Plaintiff officially was requesting a leave of absence until November 16, 2010, when it received a faxed Short Term Disability Claim Form, signed by Plaintiff, in its Indianapolis benefits department. (Id., ¶¶ 22, 23). The form, signed by a Dr. Imran Chisti, stated that Plaintiff had been diagnosed with major depression, and that he was “unable to perform management or line staff duties.” (Id., ¶ 24; Defendant’s Exh. U). Dr. Chisti further indicated that Plaintiff’s expected return to work date was “unknown.” (Id.). On November 18 and 19, 2010, Plaintiff faxed Defendant two notes from CenterPointe Hospital, dated November 8 and 18, 2010, respectively, and titled “Authorization to Return to Work.” (See Defendant’s Exh. R). The notes stated only that as of November 8, 2010, Plaintiff was under the care of a Dr. Azfar Malik, and that the date of his expected return to work without restrictions was unknown. (Id.). The notes did not specify a condition for which Plaintiff was receiving treatment. (Id.). After receiving Plaintiff’s Short Term Disability Claim Form, Defendant’s benefits department approved Plaintiff for AIE leave effective November 8, 2010. (Defendant’s Facts, ¶ 32).[4] Upon this approval, Plaintiff’s benefits were automatically terminated in accordance with the AIE leave policy. (Id., ¶ 36).[5] Defendant further approved Plaintiff for short term disability (“STD”) benefits in accordance with Defendant’s Short Term Disability Plan. (Id., ¶ 33). The benefits available pursuant to the STD policy consisted solely of income replacement, however. (Id., ¶ 34).

On or about January 22, 2011, Plaintiff returned to work from his AIE leave. (Defendant’s Facts, ¶ 42). At that time, he was presented with a Performance Deficiency Letter memorializing the facts that his performance as General Manager of Store 60 had been unacceptable, and that he had been demoted to Restaurant Manager effective November 17, 2010. (Id.). Specifically, the Performance Deficiency Letter stated as follows:

As per the conversation that took place on November 3, 2010[6] between you, Thom Pannullo and Micky Pfeiffer[7], this letter documents that you had poor performance as a General Manager at our Steak n Shake restaurant located at 5828 South Lindbergh, St. Louis, Missouri (the “Restaurant”). Please allow this Performance Deficiency letter to memorialize these deficiencies, as well as provide you with a final warning that future performance deficiencies can result in further disciplinary action, up to and including the immediate termination of your employment, without further notice….
As per the conversation on November 04, 2010, it was discussed that you would be demoted to a Restaurant Manager with your salary adjusted to $38000 per year effective November 17, 2010. We were unable to formalize this action with written documentation before your unauthorized leave of absence that began on November 08, 2010.
Based on the foregoing, Steak n Shake has been exceedingly lenient with your numerous performance deficiencies. We certainly value you as an employee and we are optimistic your performance will improve. However, because of the severity of the deficiencies, please consider this Performance Deficiency Letter to acknowledge the expectation of your performance to be at or above Company standards. Failure to do so will result in further disciplinary action, up to and including, termination.

(Defendant’s Exh. Z). Plaintiff signed the Performance Deficiency Letter without comment. (Id.).[8]

Because Plaintiff was moving to the position of Restaurant Manager, Pannullo assigned him to a new store, Store 253. (Defendant’s Facts, ¶ 44). The General Manager at Store 253 was Dallas Noll (“Noll”), but Pannullo was the District Manager over Plaintiff’s new store, and thus remained involved in managing Plaintiff. (Id.). As a Restaurant Manager, Plaintiff exhibited the same tardiness and attendance problems as when he was a General Manager. (Id., ¶ 46). He was verbally counseled on these issues throughout 2011[9], and received written performance counseling from Pannullo on January 24, 2011. (Id.; Defendant’s Exh. AA).

On or about May 9, 2011, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and Missouri Commission on Human Rights, alleging race and disability discrimination. (Defendant’s Facts, ¶ 47; Defendant’s Exh. KK). In June, 2011, Plaintiff got into a verbal altercation with another manager at Store 253, but was not disciplined. (Defendant’s Facts, ¶¶ 48, 49). On July 21, 2011, Plaintiff and Defendant participated in an unsuccessful mediation at the EEOC office in St. Louis. (Plaintiff’s Additional Facts, ¶ 63).

On or about August 6, 2011, Plaintiff got into a verbal and physical altercation with a subordinate employee named Josh at Store 253. (Defendant’s Facts, ¶ 50). According to Plaintiff, Josh became threatening and violent with Plaintiff; Plaintiff terminated Josh and instructed him to leave the building[10]; Josh refused to leave; and Plaintiff grabbed Josh by the arm and escorted him from the building. (Plaintiff’s Response to Defendant’s Statement of Undisputed Material Facts, ¶ 50). Pannullo and Pfeiffer investigated the incident. (Defendant’s Facts, ¶ 53). Although they determined that Plaintiff had violated Defendant’s disciplinary policy, they declined to terminate Plaintiff’s employment[11], and instead decided to issue a Written Disciplinary Action. (Id.; Defendant’s Exh. II).

On or about August 15, 2011, while the investigation of the August 6, 2011, incident was ongoing, Pannullo and Pfeiffer learned that Plaintiff’s driver’s license had been revoked or suspended. (Defendant’s Facts, ¶ 54). ...

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