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Cosby v. Shake

United States Court of Appeals, Eighth Circuit

November 4, 2015

Clarence C. Cosby, Plaintiff - Appellant
v.
Steak N Shake, Defendant - Appellee

Submitted September 24, 2015.

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Clarence C. Cosby, Plaintiff - Appellant: Douglas Ponder, PONDER & ZIMMERMAN, Saint Louis, MO.

For Steak N Shake, Defendant - Appellee: Sarah Smith Kuehnel, Gregg M. Lemley, Erin E. Williams, OGLETREE & DEAKINS, Saint Louis, MO.

Before MURPHY, MELLOY, and SMITH, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

Clarence Cosby, a former employee at Steak N Shake (SNS), brought this action in state court under the Missouri Human Rights Act alleging race and disability discrimination, retaliation, and constructive discharge by SNS. After the case was removed to the Eastern District of Missouri, the district court[1] granted summary judgment to SNS. Cosby now appeals the judgment dismissing his disability discrimination and constructive discharge claims. We affirm.

I.

On December 30, 2009 Cosby was hired as the general manager of an SNS store in St. Louis, Missouri. Cosby reported to district manager Thomas Pannullo who spoke to him several times in 2010 about performance issues, including unscheduled absences, failure to hold employees accountable, and a high employee turnover in his store resulting in understaffing. Cosby received a written warning on September 4, 2010 which identified those issues as well as other objective measures in which his store had been underperforming. On October 26 Cosby received another written warning which noted that he had missed a shift and had failed to complete a new product rollout. It also stated that Pannullo had " informed [Cosby] of [his] intention to take him out of the [general manager] position." While Cosby admits that he received and signed the warning, he claims that Pannullo told him that he would be demoted only if his store did not improve.

Pannullo and human resources manager Micky Pfeiffer testified that they met with Cosby on November 3, 2010 and told him that his demotion from general manager to store manager would take effect on November 17. Cosby claims that the meeting never took place although he admits that he signed a " performance deficiency letter" documenting his " poor performance as a general manager."

Beginning on November 8, 2010 Cosby failed to appear for nine days of scheduled shifts. On November 16 Cosby faxed a short term disability claim form to the SNS benefits department. This form included Dr. Imran Christi's conclusion that Cosby was " unable to perform management or line staff duties" because he had major depression. Although Cosby claims that he had previously told Pannullo on November 8 that he had been diagnosed with depression, SNS contends that the first time it was informed about it was from his claim form. SNS exercised its discretion under its short term disability benefits plan and granted Cosby 60 days of leave, backdating his leave to November 8. While Cosby was on leave, his demotion from general manager to store manager was formalized on November 17, 2010 and entered in the SNS database on November 19.

On January 22, 2011 Cosby returned to work as a store manager. Although Cosby was assigned to work at a different store, Pannullo remained his district manager. Cosby continued to exhibit the same performance problems and received verbal and written warnings from supervisors throughout 2011. In August 2011 Pannullo learned that Cosby had grabbed a subordinate employee's arm during an argument and also that he had lost his driver's license. SNS policy subjects any " [m]anager [who] loses the ability to legally and safely drive a motor vehicle . . . to discipline up to and including termination."

On August 19, 2011 Pannullo and Pfeiffer met with Cosby to issue written warnings for losing his driver's license and for grabbing his subordinate's arm. Although Cosby had refused to sign his performance warnings, he has now admitted to the charges. After receiving the warnings, Cosby asked about his " future with the company," and Pfeiffer allegedly laughed at his question. Later, after Cosby informed Pannullo that he was thinking about resigning from his position as store 0manager, he claims Pannullo replied that " this" would continue if he " stayed." Cosby announced his resignation minutes later. Upon learning of Cosby's resignation Pfeiffer told an employee, " This is perfect!" When another employee later asked Pfeiffer whether he characterized Cosby's resignation to be a plus or minus Pfeiffer answered, " Is there such a thing as a HUGE plus? [Cosby] walked out [during the] middle of [his] shift after Thom [Pannullo] and I wrote him up for a few issues. He has a pending EEOC case and his attorney probably said that we were retaliating against him."

Cosby subsequently filed this lawsuit against SNS in Missouri state court, raising claims for race and disability discrimination, retaliation, and constructive discharge under the Missouri Human Rights Act (MHRA). The case was removed to federal court by SNS which then moved for summary judgment on all claims. The district court granted the motion, concluding that neither race nor disability had been a contributing factor in the company's decision to demote Cosby, that SNS had not retaliated against him, and that SNS had not constructively ...


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