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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACY EVANS,
Plaintiff,

Case No. 2:18-cv-12631

v.

Hon. Paul D. Borman

CANAL STREET BREWING CO., L.L.C.
d/b/a FOUNDERS BREWING COMPANY,
Defendant.
______________________________________________________________________________
Jack W. Schulz (P78078)
SCHULZ GOTHAM PLC
Attorneys for Plaintiff
P.O. Box 44855
Detroit, MI 48244
(313) 246-3590
jackwschulz@gmail.com

Michael E. Stroster (P58982)
Patrick M. Edsenga (P74593)
MILLER JOHNSON
Attorneys for Defendant
45 Ottawa Avenue, S.W., Suite 1100
P.O. Box 306
Grand Rapids, MI 49501-0306
(616) 831-1700
strosterm@millerjohnson.com
edsengap@millerjohnson.com

______________________________________________________________________________
DEFENDANT’S ANSWER TO FIRST AMENDED COMPLAINT
Defendant Canal Street Brewing Co., LLC, d/b/a Founders Brewing Company, by
its attorneys, Miller Johnson, answers Plaintiff’s First Amended Complaint as follows:
INTRODUCTION
1.

Plaintiff Tracy Evans was employed with the Defendant Founders from

2014 until he was terminated in 2018, shortly after notifying his supervisor he planned to meet
with Human Resources (“HR”) to discuss Founder’s racist work environment. On information and
belief, Plaintiff was the first and only minority manager at Founders. To Plaintiff’s dismay, his
coworkers used racial slurs around him and with other employees. In fact, the company itself

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named its printers in a blatantly racist fashion. Plaintiff complained to HR throughout his
employment, but his complaints fell upon deaf ears. It is Plaintiff’s belief that he received unequal
treatment throughout his employment and was denied a promotion due to his race.
In late 2017, Plaintiff sought new beginnings within the company by moving to its
newly opening Detroit taproom. However, he realized the same practices of ignoring racially
insensitive comments and unequal treatment made their way to the new facility as well. After a
few shockingly racist comments by a coworker and the company’s failure to discipline the
employee beyond a simple write-up, Plaintiff notified his supervisor he intended to meet with
Human Resources to discuss his treatment and ongoing issues. He was fired a few days later for
pretextual reasons.
Within this Complaint, Plaintiff alleges that he received unequal treatment, was
denied a promotion, and was ultimately terminated based on his race and in retaliation complaints
regarding his treatment in violation of his rights under 42 U.S.C. §2000 et seq., 42 U.S.C. § 1981,
and Michigan’s Elliot-Larsen Civil Rights Act, M.C.L. § 37.2101 et. Seq.
ANSWER:

Paragraph 1 of the Complaint is introductory in nature, to which no response

is required. To the extent a response is required, Defendant refers to its answers to the
allegations in Paragraphs 2 – 61 contained herein. Defendant further admits that Plaintiff
purports to bring claims against it for violation of 42 U.S.C. § 1981 and Michigan’s ElliotLarson Civil Rights Act, MCL 37.20101, et seq. but denies any and all liability with respect
to Plaintiff’s claims, and denies that Plaintiff is entitled to recovery, in any amount and in
any form. Defendant denies the remaining allegations in paragraph 1 of the Complaint.

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PARTIES
2.

Plaintiff Tracy Evans is an African-American individual who was employed

with the Defendant and resides in Wayne County, Michigan.
ANSWER:

Defendant admits it employed Plaintiff in various positions from November

2013 through June 2018. Defendant further admits upon information and belief that
Plaintiff is an African-American individual. Defendant lacks knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in Paragraph 2.
3.

Defendant Canal Street Brewing Co., LLC, d/b/a Founders Brewing

Company, is a limited liability corporation headquartered in Grand Rapids, Michigan. Founders’
Detroit taproom is located at 456 Charlotte Street, Detroit, Wayne County, Michigan 48201.
ANSWER:

Defendant admits the allegations in Paragraph 3.
JURISDIC[TI]ON AND VENUE
4.

This Court has original jurisdiction of Plaintiff’s § 1981 claims pursuant to

28 U.S.C. § 1331.
ANSWER:

Defendant denies that its actions support any claim asserted by Plaintiff in this

Complaint, but Defendant does not dispute that the Court has jurisdiction over Plaintiff’s
Section 1981 claims subject to Defendant’s affirmative defenses.
5.

The amount in controversy exceeds $75,000.00, exclusive of interest, costs

and attorney fees.
ANSWER:

Defendant denies that any amount is legitimately in controversy, but

Defendant does not dispute that this Court has jurisdiction over this action subject to
Defendant’s affirmative defenses.

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6.

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Under 28 U.S.C. § 1367, this Court has supplemental jurisdiction over

Plaintiff’s state law claims.
ANSWER:

Defendant denies that its actions support any claim asserted by Plaintiff in this

Complaint, but Defendant does not dispute that the Court has jurisdiction over Plaintiff’s
state law claims subject to Defendant’s affirmative defenses.
7.

This Court is the proper venue pursuant to 28 U.S.C. § 1391(b) as a

significant amount of the acts and omissions giving rise to this complaint occurred in Wayne
County.
ANSWER:

Defendant denies that it engaged in any acts or omissions that gave rise to a

legitimate cause of action in Wayne County, but Defendant does not dispute that venue is
proper in this action subject to Defendant’s affirmative defenses.
GENERAL ALLEGATIONS
8.

Plaintiff Tracy Evans (“Plaintiff” or “Mr. Evans”) is African-American and

a member of a protected class based on his race.
ANSWER:

Defendant admits the allegations in Paragraph 8 upon information and belief.
9.

Plaintiff began working for Defendant Canal Street Brewing Co., LLC,

d/b/a Founders Brewing Company (“Founders”), as a Packaging Machine Operator in 2014 in its
Grand Rapids, Michigan facility.
ANSWER:

Defendant admits that it hired Plaintiff to work as a Packaging Machine

Operator at its facility in Grand Rapids, Michigan and that Plaintiff’s employment began on
November 4, 2013 after completing Defendant’s orientation process on October 29, 2013.
Defendant denies all remaining allegations in Paragraph 9 because they are untrue.

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10.

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When Plaintiff first started at the production facility, Plaintiff was one of

three total minorities out of more than seventy employees. Upon leaving, Plaintiff was one of an
estimated seven minorities out of close to two-hundred employees.
ANSWER:

Defendant lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 10.
11.

Within his first year, Plaintiff was promoted to Second Assistant Shift Lead

for the Production Department. Plaintiff was the only minority of around eight total Assistant Shift
Leads.
ANSWER:

Defendant denies that Plaintiff was promoted to Assistant Shift Lead “within

his first year.” Defendant also denies that there were “around eight total Assistant Shift
Leads.” In further answer, Defendant promoted Plaintiff to second shift Assistant Shift Lead
on November 30, 2014, and Plaintiff was in one of five Assistant Shift Lead positions in the
Production Department at that time. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the allegation that Plaintiff was the only minority
Assistant Shift Lead.
12.

During his employment, Plaintiff was subjected to disparate scrutiny and

disciplinary practices when compared to his Caucasian comparators.
ANSWER:

Defendant denies the allegations in Paragraph 12 because they are untrue.
13.

In one instance, Plaintiff was written up for being 1-3 minutes late

consistently. However, his white coworkers were equally if not more frequently late.
ANSWER:

Defendant admits that Plaintiff received a verbal warning on May 5, 2014 for

tardiness after Plaintiff was late for 26 of his previous 53 scheduled shifts and, on average,

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was six minutes late for those shifts.

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Defendant denies the remaining allegations in

Paragraph 13 because they are untrue.
14.

Around 2015, Plaintiff was appalled to find that Founders had electronically

named its printers in a manner blatantly racist to African-Americans. Specifically, the facility’s
upstairs

printer

used

by

management

employees

was

named

the

“white guy printer” and the downstairs general employee printer was named “black guy printer.”
ANSWER:

Defendant denies the allegations in Paragraph 14 because they are untrue.
15.

Plaintiff also was denied a promotion due to his race. In late 2015, Plaintiff

applied for a promotion as a Production Lead. Plaintiff was one of three employees to apply for
two openings. The other two Caucasian individuals were ultimately promoted to the positions
despite being trained directly by Plaintiff and being with the company for a shorter amount of time.
Additionally, these Caucasian individuals each had a recent terminable incident shortly before
their promotions at a company party; one employee crashed his vehicle into a parked car while
intoxicated and their other exposed his genitalia to the partygoers. Although Plaintiff had no such
incidents in his employment history, both individuals were selected for promotion over him.
ANSWER:

Defendant admits that Plaintiff applied for the position of Production Lead in

October 2016 and that, at that time, there was only one opening for a Production Lead but
that another Production Lead position opened up a short time later. Defendant admits that
Plaintiff was one of three Assistant Shift Leads to apply for this position, and that the other
two Assistant Shift Leads were selected for the position. Upon information and belief,
Defendant admits that the two Assistant Shift Leads selected for the Production Lead
positions were Caucasian and that those individuals began employment at Defendant a short

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time after Plaintiff. Defendant denies the remaining allegations in Paragraph 15 because
they are untrue.
16.

In October 2017, Plaintiff saw an opportunity for a change and applied for

a lateral transfer as the Events and Promotions Manager in the newly-opening taproom in Detroit.
ANSWER:

Defendant admits that in August 2017 Plaintiff applied for a promotion to

Events and Promotions Manager for its soon-to-be-opened Detroit taproom. Defendant
denies the remaining allegations in Paragraph 16 because they are untrue.
17.

Prior to moving to Detroit, Plaintiff was approached by a Caucasian

employee who exclaimed “What’s up with Detroit my nigger?” Plaintiff immediately told the
employee that it was not right for him to say that statement. Plaintiff also reported the employee
to Human Resources. However, the employee continued to work for Founders with Plaintiff.
ANSWER:

Defendant admits that Plaintiff voiced a complaint to its Human Resources

Department in September 2017 that a co-worker, who continues to work for Defendant,
approached him and made the comment alleged in Paragraph 17. In further answer, upon
receiving this report, Defendant’s Human Resources Representative spoke with Plaintiff and
told Plaintiff that she would investigate the allegation and that the offending employee would
face disciplinary action if the allegation was substantiated. Plaintiff responded that he did
not want the offending employee to be fired and preferred to have a conversation with the
offending employee about the comment. Defendant’s Human Resources Representative then
investigated Plaintiff’s complaint and took prompt remedial measures to cause this conduct
to cease, including issuing a disciplinary action to Plaintiff’s co-worker. Upon information
and belief, Plaintiff and the offending co-worker met and the offending co-worker apologized

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to Plaintiff and Plaintiff accepted his apology. Defendant denies all remaining allegations in
Paragraph 17.
18.

Shortly after, Plaintiff officially transferred to the Detroit taproom searching

for fresh beginnings with the company. However, similar racial incidents continued to occur in
Detroit as well.
ANSWER:

Defendant admits that Plaintiff accepted a promotion to become the Events

and Promotions Manager at Defendant’s soon-to-be-opened Detroit taproom beginning in
October 2017 and that Defendant selected Plaintiff for this promotion out of 294 applicants
for the position.

Defendant denies that Plaintiff took this promotion because he was

“searching for fresh beginnings.” Defendant denies all remaining allegations in Paragraph
18 because they are untrue.
19.

In one incident, the employees were discussing ex-Detroit mayor Kwame

Kilpatrick. Following Plaintiff expressing his views, a Caucasian coworker looked at Plaintiff and
said he needed to explain to Plaintiff what it meant to be the “head nigger in charge.” Plaintiff
immediately expressed his displeasure with the comment, to which the Caucasian coworker
reaffirmed his statement. Plaintiff immediately notified the General Manager Dominic Ryan (“GM
Ryan”) and a Human Resources employee, Marguex Bouwkamp, who was present. The two stated
that they were simply going to write the Caucasian employee up for the incident. Plaintiff
expressed his frustration with the company taking a blind eye to blatant racism against him and
allowing an overtly racist culture. Plaintiff also stated that Founders should not allow this to
happen. However, nothing was done beyond the write-up.
ANSWER:

Defendant admits that Plaintiff reported that a co-worker made a comment

similar to the one alleged in Paragraph 19 to General Manager Dominic Ryan and Human

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Resources representative Marguex Bouwkamp. Defendant admits that Mr. Ryan and Ms.
Bouwkamp told Plaintiff they would investigate his complaint, discuss the appropriate
disciplinary action for the offending employee after completing their investigation, and
follow up with Plaintiff. After completing its investigation, Defendant admits that Ms.
Bouwkamp and Mr. Ryan took prompt remedial action, including issuing a written
disciplinary warning to the offending employee and informing that employee that additional
actions of this nature could result in termination of his employment. Defendant denies that
Ms. Bouwkamp and Mr. Ryan told Plaintiff that they would “simply” write up the offending
co-worker. Defendant denies that Plaintiff “expressed his frustration with the company
taking a blind eye to blatant racism against him and allowing an overtly racist culture” or
that Plaintiff “stated that [Defendant] should not allow this to happen.” Defendant also
denies that “nothing was done beyond the write up.” Defendant denies all remaining
allegations in Paragraph 19 because they are untrue.
20.

Later, Plaintiff heard from other employees that the Caucasian employee

was still making racist comments including but not limited to a complaint about how “dark” the
taproom’s cliental is. The employee is still employed.
ANSWER:

Defendant denies that the employee referenced in Paragraph 19 remains

employed by Defendant. Defendant is without knowledge or information sufficient to form
a belief as to the remaining allegations in Paragraph 20.
21.

Plaintiff suffered because of Founder’s tolerance for a racist internal

corporate culture.
ANSWER:

Defendant denies the allegation in Paragraph 21 because it is untrue.

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22.

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Further, the position itself was challenging as Plaintiff was expected to plan

large scale projects without any budget whatsoever. Additionally, in at least one instance, Plaintiff
had planned an entire project and obtained the permits only to have the entire event moved to
another location requiring completely different permits. Plaintiff was blamed for the delay despite
the necessity of new permits.
ANSWER:

Defendant denies the allegations in Paragraph 22 because they are untrue.
23.

Following the continued racism, Plaintiff scheduled a personal day off on

or around June 1, 2018 to drive to Grand Rapids, Michigan to speak with Founders Human
Resources personnel about the incidents and his work environment.
ANSWER:

Defendant denies the allegations in Paragraph 23 because they are untrue.
24.

On May 31, 2018, the day prior to his scheduled day off, Plaintiff was called

into GM Ryan’s office to discuss an ongoing project that Plaintiff was working on. GM Ryan
urged Plaintiff to finish the project and questioned Plaintiff’s choice to schedule a personal day on
June 1, 2018.
ANSWER:

Defendant admits that on May 31, 2018, General Manager Dominic Ryan told

Plaintiff that he needed to provide an event proposal for an event that Plaintiff was
attempting to gain Defendant’s approval to hold at Defendant’s Detroit Taproom. In further
answer, prior to May 31, Defendant placed Plaintiff on a “Development Plan” to address
deficiencies in Plaintiff’s job performance as Events and Promotions Manager by providing
additional training to Plaintiff and listing specific tasks for Plaintiff to complete within
certain time frames. As part of that Development Plan, Plaintiff was required to submit a
complete event proposal to Defendant for an event at the Detroit Taproom, but Plaintiff
repeatedly failed to submit a complete budget or provide other necessary information in the

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event proposal that Defendant needed to evaluate and approve the proposed event, despite
Defendant’s repeated directions for Plaintiff to do so. For instance, on May 22, 2018, General
Manager Dominic Ryan told Plaintiff that the event proposal he submitted was incomplete
and lacking key information and that Plaintiff must submit a complete event proposal by
May 25, 2018. Plaintiff, however, did not submit the budget proposal on May 25 as required,
so Mr. Ryan gave Plaintiff until May 31, 2018 to submit the complete event proposal.
Plaintiff also failed to meet that May 31 deadline so Mr. Ryan gave Plaintiff yet another
extension until June 1 to provide a complete event proposal, but Plaintiff failed to meet this
deadline with a complete event proposal. Defendant denies the remaining allegations in
Paragraph 24 because they are untrue.
25.

In response, Plaintiff explicitly explained that he scheduled the day off so

that he could discuss his treatment due to his race and the racist incidents he had witnessed with
Founders’ Human Resources personnel in person. Plaintiff also expressed his frustration that the
company continued to employ the employee who had said the word “nigger” and continues to
make other racist comments. Plaintiff stated to GM Ryan that he did not feel comfortable working
alongside the employee.
ANSWER:

Defendant denies the allegations in Paragraph 25 because they are untrue.
26.

GM Ryan reaffirmed that he needed something done on the project from

Plaintiff tomorrow (the day Plaintiff explained that he planned to see HR). As a result, Plaintiff
postponed his scheduled day off for fear of retaliation.
ANSWER:

Defendant admits that on May 31, 2018, GM Ryan gave Plaintiff an additional

day to complete his already-late event proposal. Defendant denies the remaining allegations
in Paragraph 26 because they are untrue.

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27.

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On or around the following Tuesday, Plaintiff’s first work day after his

originally scheduled day off, Plaintiff was called into GM Ryan’s office. Upon entering, Plaintiff
noticed Human Resources Director, Audrey Strieter (“Strieter”), was present. Plaintiff assumed
the purpose of the meeting was to discuss the complaints he had made to GM Ryan a few days
earlier. Instead, GM Ryan and Strieter informed Plaintiff that he was terminated and handed him
a Separation Agreement, which Plaintiff refused to sign.
ANSWER:

Defendant admits that Plaintiff met with General Manager Dominic Ryan and

Defendant’s Human Resources Director Audrey Strieter on Tuesday, June 5, 2018 in Mr.
Ryan’s office at the Defendant’s Detroit taproom, which was Plaintiff’s first day of work
since Friday, June 1, 2018. Defendant admits that at this meeting Mr. Ryan and Ms. Strieter
informed Plaintiff that his employment was being terminated effective immediately and
offered Plaintiff the opportunity to receive severance pay by executing a separation
agreement, which Plaintiff later declined. Defendant is without knowledge or information
sufficient to form a belief as to what Plaintiff “assumed” this meeting was about. Defendant
denies the remaining allegations in Paragraph 27 because they are untrue.
28.

As a result of Defendant’s conduct, Plaintiff suffered substantial harm,

including significant financial loss, embarrassment, stress, and frustration.
ANSWER:

Defendant denies the allegations in Paragraph 28 because they are untrue.
29.

On September 26, 2018, Plaintiff filed a charge of racial discrimination and

retaliation with the Equal Employment Opportunity Commission. Plaintiff was issued his right to
sue on October 1, 2018. (Exhibit A)
ANSWER:

Admitted.

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COUNT I
RACIAL DISCRIMINATION - 42 U.S.C. § 1981
30.
ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
31.
ANSWER:

Plaintiff is a member of a protected minority class.

Admitted upon information and belief.
32.

As an employee, Plaintiff had a contractual employment relationship with

Defendant Founders.
ANSWER:

Paragraph 32 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits the allegation in Paragraph
32.
33.

Plaintiff was disciplined and terminated while performing at the same level

as Caucasian comparators and allegedly engaging in the exact same conduct as Caucasian
employees.
ANSWER:

Defendant denies the allegations in Paragraph 33 because they are untrue.
34.

Plaintiff alleges that he received disparate treatment compared to Caucasian

comparators in violation of his right to make and enforce contracts pursuant to 42 U.S.C. § 1981.
ANSWER:

Defendant denies the allegations in Paragraph 34 because they are untrue.
35.

Plaintiff alleges that he was terminated in violation of his right to make and

enforce contracts pursuant to 42 U.S.C. § 1981.
ANSWER:

Defendant denies the allegations in Paragraph 35 because they are untrue.
36.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
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sick days, loss of career opportunities, humiliation and embarrassment, mental anguish and
emotional distress, loss of professional reputation and loss of the ordinary pleasures of everyday
life, including the right to pursue gainful occupation of choice and has incurred attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 36 because they are untrue.

COUNT II
DENYING PROMOTION ON THE BASIS OF RACE - 42 U.S.C. § 1981
37.
ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
38.

During his employment with Defendant, Plaintiff applied for a promotion

as a Production Lead, for which there were two openings.
ANSWER:

Defendant admits that Plaintiff applied for the position of Production Lead in

October 2016 and that initially there was one opening for a Production Lead but that another
Production Lead position opened up a short time later. Defendant denies all remaining
allegations in Paragraph 38 because they are untrue.
39.

Defendant discriminated against Plaintiff on the basis of race by selecting

two Caucasian employees over him with inferior skill sets, less seniority, and each had recently
demonstrated egregious behavior not fitting of a manger.
ANSWER:

Defendant denies the allegations in Paragraph 39 because they are untrue.
40.

Plaintiff alleges that he was denied the promotion in violation of his right to

make and enforce contracts pursuant to 42 U.S.C. § 1981.
ANSWER:

Defendant denies the allegations in Paragraph 40 because they are untrue.
41.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
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sick days, loss of career opportunities, humiliation and embarrassment, mental anguish and
emotional distress, loss of professional reputation and loss of the ordinary pleasures of everyday
life, including the right to pursue gainful occupation of choice and has incurred attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 41 because they are untrue.
COUNT III
RETALIATION – 42 U.S.C. § 1981
42.

ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
43.

Plaintiff engaged in activity protected by 42 U.S.C. § 1981 when he

complained of racial discrimination at various times throughout his employment.
ANSWER:

Paragraph 43 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits that Plaintiff complained
of racist conduct during his employment with Defendant. Defendant denies all remaining
allegations in Paragraph 43 because they are untrue.
44.

Defendant retaliated against Plaintiff after he reported and opposed

Defendant’s harboring of racism, acceptance of racism in the workplace, and racist conduct.
ANSWER:

Defendant denies the allegations in Paragraph 44 because they are untrue.
45.

Defendant’s termination of Plaintiff’s employment on this basis violates 42

U.S.C. § 1981.
ANSWER:

Defendant denies the allegations in Paragraph 45 because they are untrue.
46.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
sick days, loss of career opportunities, humiliation and embarrassment, mental anguish and
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emotional distress, loss of professional reputation and loss of the ordinary pleasures of everyday
life, including the right to pursue gainful occupation of choice and has incurred attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 46 because they are untrue.

COUNT IV
RACIAL DISCRIMINATION
ELLIOT-LARSEN CIVIL RIGHTS ACT, M.C.L. § 37.2101 ET. SEQ.
47.
ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
48.

At all relevant times, Plaintiff and Defendant were covered by and within

the meaning of the Michigan Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.
ANSWER:

Paragraph 48 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits the allegation in Paragraph
48.
49.

Defendant treated and disciplined Plaintiff differently than similarly-

situated Caucasian employees.
ANSWER:

Defendant denies the allegations in Paragraph 49 because they are untrue.
50.

Plaintiff’s race was a factor that made a difference in Defendant’s decision

with work assignments, treatment, and discipline to Plaintiff, including his termination.
ANSWER:

Defendant denies the allegations in Paragraph 50 because they are untrue.
51.

Defendant’s actions were intentional, with reckless indifference and in

disregard of Plaintiff’s rights and sensibilities.
ANSWER:

Defendant denies the allegations in Paragraph 51 because they are untrue.
52.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
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sick days, loss of career opportunities, humiliation and embarrassment, anguish and emotional
distress, loss of professional reputation, and loss of the ordinary pleasures of everyday life,
including the right to pursue gainful occupation of choice and incurred substantial liability for
attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 52 because they are untrue.

COUNT V
DENYING PROMOTION ON THE BASIS OF RACE
ELLIOT-LARSEN CIVIL RIGHTS ACT, M.C.L. § 37.2101 ET. SEQ.
53.
ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
54.

During his employment with Defendant, Plaintiff applied for a promotion

as a Production Lead for which there were two openings.
ANSWER:

Defendant admits that Plaintiff applied for the position of Production Lead in

October 2016 and that initially there was one opening for a Production Lead but that another
Production Lead position opened up a short time later. Defendant denies all remaining
allegations in Paragraph 54 because they are untrue.
55.

Defendant discriminated against Plaintiff on the basis of race by selecting

two Caucasian employees over him with inferior skill sets, less seniority, and each had recently
demonstrated egregious behavior not fitting of a manger.
ANSWER:

Defendant denies the allegations in Paragraph 55 because they are untrue.
56.

Plaintiff alleges that he was denied the promotion in violation of his rights

pursuant to the Michigan Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.
ANSWER:

Defendant denies the allegations in Paragraph 56 because they are untrue.

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57.

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As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
sick days, loss of career opportunities, humiliation and embarrassment, mental anguish and
emotional distress, loss of professional reputation, and loss of the ordinary pleasures of everyday
life, including the right to pursue gainful occupation of choice and incurred substantial liability for
attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 57 because they are untrue.

COUNT VI
RETALIATION
ELLIOT-LARSEN CIVIL RIGHTS ACT, M.C.L. § 37.2101 ET. SEQ.
58.
ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
59.

Plaintiff engaged in protected activity when he opposed a racist worker

environment, racist comments, and reported that the company kept a blind eye to racism and that
he believed he was being treated unfairly and differently than his fellow white employees.
ANSWER:

Paragraph 59 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits that Plaintiff engaged in
protected activity by reporting racist conduct but denies that Plaintiff “reported that the
company kept a blind eye to racism and that he believed he was being treated unfairly and
differently than his fellow white employees.” Defendant denies all remaining allegations in
Paragraph 59 because they are untrue.
60.

As a result of Plaintiff’s protected activity, Plaintiff was disciplined and,

ultimately, terminated.
ANSWER:

Defendant denies the allegations in Paragraph 60 because they are untrue.
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61.

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As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay, loss of vacation and
sick days, loss of career opportunities, humiliation and embarrassment, mental anguish and
emotional distress, loss of professional reputation, and loss of the ordinary pleasures of everyday
life, including the right to pursue gainful occupation of choice and incurred substantial liability for
attorney fees.
ANSWER:

Defendant denies the allegations in Paragraph 61 because they are untrue.
COUNT VII
RACIAL DISCRIMINATION - TITLE VII, 42 U.S.C. § 2000E
62.

ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
63.

At all relevant times, Plaintiff was an employee and Defendant Founders

was an employer within the meaning of the Title VII, 42 U.S.C. § 2000e et seq.
ANSWER:

Paragraph 63 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits the allegation in Paragraph
63.
64.

Plaintiff has obtained his right to sue pursuant to Title VII through the

EEOC. (Exhibit A)
ANSWER:

Admitted.
65.

Defendants treated and disciplined Plaintiff different than similarly situated

Caucasian employees.
ANSWER:

Defendant denies the allegations in Paragraph 65 because they are untrue.
66.

Defendant’s decision to terminate Plaintiff was based on his race.
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ANSWER:

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Defendant denies the allegations in Paragraph 66 because they are untrue.
67.

Defendant’s actions were intentional, with reckless indifference and in

disregard of Plaintiff’s rights and sensibilities.
ANSWER:

Defendant denies the allegations in Paragraph 67 because they are untrue.
68.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay and benefits, loss of
vacation and sick days, loss of career opportunities, humiliation and embarrassment, mental
anguish and emotional distress, loss of professional reputation and loss of the ordinary pleasures
of everyday life, including the right to pursue his gainful occupation of choice and has incurred
attorney fees and costs of litigation.
ANSWER:

Defendant denies the allegations in Paragraph 68 because they are untrue.
COUNT VIII
RETALIATION - TITLE VII, 42 U.S.C. § 2000E
69.

ANSWER:

All preceding paragraphs are incorporated by reference.

Defendant reincorporates by reference its responses to the allegations in all

preceding paragraphs.
70.

Plaintiff engaged in activity protected by Title VII, 42 U.S.C. § 2000e et

seq. when he opposed a racist worker environment, racist comments, and reported that the
company kept a blind eye to racism and that he believed he was being treated unfairly and
differently than his fellow white employees.
ANSWER:

Paragraph 70 states a legal conclusion to which no responsive pleading is

required. To the extent a response is required, Defendant admits that Plaintiff engaged in
protected activity by reporting racist conduct but denies that Plaintiff “reported that the
company kept a blind eye to racism and that he believed he was being treated unfairly and
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differently than his fellow white employees.” Defendant denies all remaining allegations in
Paragraph 70 because they are untrue.
71.

Defendant retaliated against Plaintiff after he reported and opposed

Defendant’s harboring of racism, acceptance of racism in the workplace, and racist conduct.
ANSWER:

Defendant denies the allegations in Paragraph 71 because they are untrue.
72.

Defendant’s termination of Plaintiff’s employment on this basis violates

Title VII, 42 U.S.C. § 2000e et seq.
ANSWER:

Defendant denies the allegations in Paragraph 72 because they are untrue.
73.

As a direct and proximate result of Defendant’s unlawful actions, Plaintiff

has sustained injuries and damages including, but not limited to, loss of pay and benefits, loss of
vacation and sick days, loss of career opportunities, humiliation and embarrassment, mental
anguish and emotional distress, loss of professional reputation and loss of the ordinary pleasures
of everyday life, including the right to pursue his gainful occupation of choice and has incurred
attorney fees and costs of litigation.
ANSWER:

Defendant denies the allegations in Paragraph 73 because they are untrue.
JURY DEMAND
Defendants object to trial by jury except as to those claims so triable and for which

Plaintiff has made a timely demand for jury trial.
AFFIRMATIVE DEFENSES
1.

Plaintiff’s Complaint, in whole or in part, fails to state a claim upon which

relief can be granted.
2.

Except for Plaintiff’s claims for retaliatory and/or discriminatory

termination of employment, Plaintiff’s claims are barred by the 180-day contractual period of

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limitations contained in the contract that Plaintiff entered into with Defendant, which is attached
as Exhibit A to Defendant’s Amended Answer.
3.

Any actions undertaken by Defendant regarding Plaintiff were taken for

lawful and legitimate, non-discriminatory, and non-retaliatory business reasons.
5.

Plaintiff cannot establish a prima facie case or discrimination or retaliation.

6.

Plaintiff cannot establish that Defendant’s legitimate, non-discriminatory

and non-retaliatory reasons for its actions regarding Plaintiff were pretext for unlawful
discrimination or retaliation.
7.

Plaintiff’s claims are barred, in whole or in part, by the applicable statute of

limitations and/or are otherwise untimely.
8.

Plaintiff’s claims are barred, in whole or in part, to the extent that he failed

to satisfy the jurisdictional requirements, failed to exhaust administrative remedies or failed to
satisfy other conditions precedent to bringing suit.
9.

Plaintiff’s claims under Title VII are barred to the extent that they were

not set forth in Plaintiff’s administrative charge.
10.

Plaintiff’s claim for damages and monetary relief are barred because

Plaintiff failed to mitigate his damages.
11.

Defendant is entitled to a set-off against Plaintiff’s claim for damages in the

amount(s) that Plaintiff has earned through subsequent employment or benefits.
12.

During all relevant times, Defendant had in place effective policies and

procedures to prevent and correct discrimination, harassment, and retaliation in the workplace; any
actions contrary to these policies and procedures were contrary to Defendant’s good faith efforts

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to comply with the anti-discrimination laws, and done without Defendant’s consent or
authorization.
13.

Plaintiff failed to avail himself of the preventative and/or corrective

procedures provided by Defendant to address any alleged discriminatory, harassing, or retaliatory
behavior directed at Plaintiff.
14.

To the extent that Plaintiff seeks an award of punitive damages and/or

liquidated damages, such damages are unavailable under applicable law and/or are barred based
on Defendants’ good faith efforts to comply with the law.
15.

Plaintiff’s claims are subject to a mandatory arbitration clause in the

contract Plaintiff entered into with Defendant attached as Exhibit A to Defendant’s Amended
Answer.
16.

Defendant denies all other allegations in the Complaint not specifically

admitted or otherwise responded to in this Amended Answer.
17.

Defendant reserves the right to amend or add additional affirmative

defenses or counterclaims that may become known during the course of discovery.
WHEREFORE, Defendant respectfully requests that this Court enter judgment in
its favor, dismissing the Complaint in its entirety with prejudice, and awarding Defendant its costs
of suit and reasonable attorneys’ fees, and awarding such other legal and/or equitable relief as the
Court deems just and proper.
Respectfully submitted,
MILLER JOHNSON
Attorneys for Defendant
Dated: October 22, 2018

By: /s/ Patrick M. Edsenga
Patrick Edsenga (P74593)
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45 Ottawa Avenue, S.W., Suite 1100
PO Box 306
Grand Rapids, MI 49501
(616) 831-1713

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MJ_DMS 30149987v1 20178-111