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McMillian v. Gmri Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

April 22, 2019

GMRI, INC., Defendant.



         Plaintiff Breyanna McMillian (“McMillian”), an African-American female, claims that Defendant GMRI, Inc. (“GMRI”) hired her to work as a server at its Olive Garden restaurant, but fired her the following day because of her skin color. McMillian has filed a motion for partial summary judgment based on facts she contends GMRI admitted by failing to tender timely responses to her requests for admission. [Record No. 40] GMRI has filed a motion seeking to withdraw the admissions or for a finding that no admissions have been made. [Record No. 41');">1] GMRI has also moved for summary judgment. [Record No. 42]


         McMillian submitted an online application for employment at GMRI's Olive Garden restaurant in Lexington, Kentucky in early November 201');">16');">6');">6');">6. [Record Nos. 24, ¶ 8');">8');">8');">8; 42-3] Service manager Josh Barcomb interviewed her for a server position shortly thereafter and, according to McMillian, told her to attend a training session at the restaurant the following day. [Record No. 42-5');">5');">5');">5, pp. 5');">5');">5');">5, 1');">15');">5');">5');">5] Barcomb asserts that he told McMillian about the training schedule at the beginning of the interview, but that he ultimately decided not to offer her a position based on some of her answers to his questions. Barcomb reports that he or another manager sent McMillian an automated e-mail on November 6');">6');">6');">6, 201');">16');">6');">6');">6, advising her that she had not been selected for employment. [Record Nos. 42-6');">6');">6');">6, p. 9; 42-9] McMillian reports that she never saw the e-mail, but concedes that she no longer had access to the e-mail address listed in her employment application. [Record No. 42-5');">5');">5');">5, pp. 3-6');">6');">6');">6; 42-8');">8');">8');">8, p. 3');">p. 3]

         McMillian reported to Olive Garden for training on November 7');">7, 201');">16');">6');">6');">6. [Record No. 42-5');">5');">5');">5, p. 9');">p. 9] She stated that there were eight to ten new employees in attendance at this training session. Id. at 1');">12. The employees included Majesty Spikener (an African-American woman) and an individual McMillian described as “a dark-skinned guy.” Culinary manager Sean Nealey led the training session, during which McMillian asserts that Nealey “kept looking at [her] strange” [sic]. Id. at p. 1');">13. She concedes that she was wearing a pink shirt, jacket, and pants while all of the other participants were wearing uniforms. Id. at 1');">13.

         Barcomb was working on November 7');">7, 201');">16');">6');">6');">6, but did not participate in the training session. He reports that, during the day, he noticed an individual who was not dressed in the company uniform. [Record No. 42-6');">6');">6');">6, p. 9');">p. 9] Later, when the training group took a break, Barcomb recognized the individual as McMillian. Id. Barcomb advised Nealey that he had not hired McMillian, and the two men took her aside. Id. Nealey asked McMillian who had hired her and she responded “Josh.”

         The parties' stories diverge significantly at this point. McMillian contends that Barcomb laughed and denied having hired her. [Record No. 47');">7-1');">1, p. 1');">1] She reports that Nealey then told her that he would not have hired a person like her because she was “too dark” to work at the restaurant. McMillian says Nealey then took a twenty-dollar bill from his pocket and handed it to her, telling her to “go back to Burger King because that is where [she] deserved to work.” [Record No. 47');">7-1');">1] McMillian contends that she left in tears.

         GMRI disputes this version of events. Barcomb testified that he and Nealey took McMillian aside and Nealey asked who had hired her. [Record No. 47');">7-7');">7, p. 5');">5');">5');">5] According to Barcomb, McMillian pointed to him and said, “Josh did.” Barcomb contends that he advised McMillian that he had not hired her and that she should have received an e-mail. Barcomb and Nealey then called their supervisor, Jefe Gabat, to determine the best way to handle the situation. [Record No. 42-6');">6');">6');">6, p. 9');">p. 9] The defendant ultimately stood by its decision not to hire McMillian, but felt that she should be compensated for her time. Id. According to Barcomb, Nealey took a twenty-dollar bill from the bar and handed it to McMillian. Barcomb also testified that he and Nealey offered McMillian a meal and to call for transportation. Id. at p. 1');">10.

         Majesty Spikener (also represented by Attorney Ryan Robey) filed a discrimination suit against Olive Garden in February 201');">18');">8');">8');">8. [See Lexington Civil Action No. 5');">5');">5');">5: 1');">18');">8');">8');">8-1');">18');">8');">8');">88');">8');">8');">8.] McMillian testified in her deposition that Spikener contacted her approximately one month after the training session and “wanted [her] to go to Ryan.” [Record No. 42-5');">5');">5');">5, p. 1');">19] Spikener subsequently set up a meeting for herself and McMillian at Robey's office. McMillian filed suit on February 1');">17');">7, 201');">18');">8');">8');">8, alleging that GMRI fired her because of her skin color, in violation of the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.01');">10, et seq., and 42 U.S.C.§ 1');">198');">8');">8');">81');">1.


         The Court must first address the defendant's untimely answers to McMillian's requests for admission and her resulting motion for summary judgment. McMillian served GMRI with requests for admission on December 20, 201');">18');">8');">8');">8. Accordingly, GMRI's responses were due on or before January 21');">1, 201');">19. See Fed. R. Civ. p. 3');">p. 36');">6');">6');">6(a); 6');">6');">6');">6(a)(1');">1). However, on January 20, 201');">19, at 1');">10:46');">6');">6');">6 p.m., GMRI's attorney e-mailed McMillian's attorney, requesting an extension of time until February 5');">5');">5');">5, 201');">19 to respond to the requests. [Record No. 44-1');">10] McMillian's attorney responded by e-mail the following day, advising the defendant that McMillian agreed to the extension. [Record No. 44-1');">11');">1]

         Counsel for GMRI sent a second e-mail to the plaintiff's attorney on February 5');">5');">5');">5, 201');">19, at 9:34 p.m. [Record No. 44-1');">12] GMRI's attorney advised: “We're going to need a few more days to finish up written discovery responses. [We] have both been out of the office with flu/sinus issues, and it's put us behind schedule unfortunately. We apologize for the delay.” McMillian's attorney did not see the e-mail message, however, because it went to his spam folder. McMillian filed a motion for summary judgment on February 9, 201');">19, based on matters purportedly deemed admitted as a result of GMRI's failure to respond to the requests for admission by the agreed deadline. [Record No. 36');">6');">6');">6]

         The plaintiff subsequently learned of GMRI's second e-mail and withdrew her motion for summary judgment. [Record No. 37');">7] However, she maintained that the requests for admission were deemed admitted and preserved her right to re-file the motion in the future. McMillian did so on March 1');">12, 201');">19, arguing that the untimely responses constitute conclusively-established facts which entitle her to judgment as a matter of law. [Record No. 40]

         Rule 36');">6');">6');">6(a)(3) of the Federal Rules of Civil Procedure provides that a matter is admitted unless, within 30 days of being served, the party to whom a request for admission is directed serves a written answer or objection. A matter admitted under this rule is conclusively established unless the Court, on motion, permits the admission to be withdrawn or amended. Fed.R.Civ.p. 3');">p. 36');">6');">6');">6(b). The Court may permit withdrawal or ...

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