United States District Court, D. Maryland
Xinis United States District Judge
disability discrimination case concerns the failure of
Defendant Cracker Barrel Old Country Store, Inc.
(“Cracker Barrel”) to hire Donte Kess, who is
deaf, as a dishwasher at its Lint Heights restaurant. Pending
before the Court is Cracker Barrel's motion for summary
judgment. ECF No. 35. The motion is fully briefed and no
hearing is necessary. See Loc. R. 105.6. For the
following reasons, the Court denies Cracker Barrel's
following facts are undisputed. Donte Kess is a high-school
graduate with years of experience in the restaurant industry.
See, e.g., ECF No. 37-2 (resume listing experience
in food preparation and dishwashing at Romano's Macaroni
Grille, Corner Bakery, and The Oregon Grille). Cracker Barrel
operates restaurants and retail stores throughout the United
States, including one in Linthicum Heights, Maryland. ECF No.
35-2 ¶ 3.
1, 2016, Kess applied for an advertised dishwasher position
with Cracker Barrel's Linthicum Heights restaurant using
the company's online application system. ECF No. 37-2;
ECF No. 35-2 ¶ 6. On the same day that he applied, Kess
received from Cracker Barrel a confirmation of receipt his
application. ECF No. 35-2 at 11.
13, 2016, Susie Trader, the acting Senior Associate Manager
of Cracker Barrel's Linthicum Heights restaurant, emailed
Kess an invitation for an interview. ECF No. 37-3 at 2; ECF
No. 35-2 at 12. The email directed Kess to call the
restaurant to schedule the interview. Id.
Barrel contends that from this point until the filing of
Kess' claim with the EEOC, no one from Cracker Barrel
heard from Kess. ECF No. 35-2 ¶¶ 8-11. Kess,
however, attests that on the same day he received the offer
to interview, he traveled an hour via public transportation
to a Workforce Technical Center to use their videophone
services so he could schedule an interview. ECF No. 37-1 at
15-16. The Center's video relay interpreting service
allows a caller such as Kess to use sign language to
communicate with the interpreter; the interpreter then
simultaneously speaks via telephone to the recipient of the
call. See ECF No. 37-1 at 12-15. The use of this
videophone service alerts the recipient of the call that the
caller is hearing impaired. See ECF No. 35-3 at 22.
this call, Kess communicated with Cracker Barrel's
General Manager, Joanne Bodley. ECF No. 37-1 at 12-13; ECF No.
37-3 at 22. Bodley asked Kess how he communicates with
co-workers given his hearing impairment. ECF No. 37-1 at
34-35. Kess assured Bodley that he communicates with either
sign language, writing on paper or spelling with his fingers,
and that communication has not presented a problem for him in
prior jobs. Id. at 35. Kess also told Bodley that he
still keeps in touch with some of his previous co-workers.
Id. Bodley scheduled Kess for an interview with
Trader for June 16, 2016 at 4:15 p.m. Id. at 17, 27.
interview day, Kess commuted ninety minutes via public
transportation to the Linthicum Heights Cracker Barrel
restaurant and arrived well-before his appointment time.
his arrival, he wrote a note to the cashier that he was there
for his interview. Id. at 19. Thirty minutes later,
Candy Rogers, a senior associate manager, approached Kess.
Id. at 26; ECF No. 37-3 at 2. According to Kess,
Rogers “looked nervous, her body language was
strange.” ECF No. 37-1 at 20. Kess wrote Rogers a note
that he was there for an interview with Trader. Id.
Rogers, in response, told him that Trader was not there.
Id. Kess asked Rogers to write down her name, which
she did. Id. She then walked away. Id.
few minutes, Kess left the restaurant and headed to a library
near his home. ECF No. 37-1 at 27-29. At the library, he sent
the following email to Trader:
Good afternoon. I went to Cracker Barrel today for interview
today at 4:15 p.m. I was told by Candy that you were not
there. I also asked for general manager. I seem that she does
not concern about then speechlesd [sic] with me after that.
It doesn't happened [sic] to me in my life. Donte
ECF No. 37-1 at 29-30; ECF No. 37-5.
next day, on Friday June 17, 2016, Kess traveled again to the
Center and called the Linthicum Heights Cracker Barrel three
separate times. ECF No. 37-1 at 23, 30-31. Each time, the
Center's interpreter communicated to Kess that the call
was answered at Cracker Barrel, put on hold, and then
disconnected. Id. On Monday, June 20, 2016, Kess
returned to the Center and called Cracker Barrel again.
Id. at 30. This time, someone whom the interpreter
believes identified herself as “Chastity”
answered. Id. at 23, 32-33. Kess explained to
Chastity what had occurred on the previous Thursday, gave