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Equal Employment Opportunity Commission v. Cracker Barrel Old Country Store, Inc.

United States District Court, D. Maryland

January 16, 2020

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CRACKER BARREL OLD COUNTRY STORE, INC., Defendant.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge

         This 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 motion.

         I. Background

         The 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.

         On June 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.

         On June 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.

         Cracker 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.

         During this call, Kess communicated with Cracker Barrel's General Manager, Joanne Bodley.[1] 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.

         On his interview day, Kess commuted ninety minutes via public transportation to the Linthicum Heights Cracker Barrel restaurant and arrived well-before his appointment time. Id.

         Upon 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.

         After a 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.

         The 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 ...


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