Federal judge tosses discrimination lawsuit against Midland Brewing Company; appeal filed
A federal judge has tossed the discrimination lawsuit filed against Midland Brewing Company in 2019.
The lawsuit alleged that the craft brewery fired an employee, Ryan Boshaw, because of his sexuality in violation of Title VII and Michigan’s Elliott Larsen Civil Rights Act and accused brewery manager Donna Reynolds and owner David Kepler of a civil conspiracy to terminate his employment based of his sexuality.
U.S. District Judge Thomas L. Ludington granted the brewery’s motion for summary judgment, dismissing the case. Mr. Boshaw, through his attorney, has already appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
Mr. Ludington was appointed by President George W. Bush in 2006 and previously served as a Circuit Court judge in Midland.
Mr. Boshaw was hired at Midland Brewing Company in March of 2018 and had a meteoric rise at the restaurant, promoted multiple times over the next 15 months, ultimately to the position of Front of House Operations Manager. He alleges that in July of 2018, after working for months as a server, he and Ms. Reynolds discussed his sexual orientation and masculine appearance.
Mr. Boshaw testified that Ms. Reynolds told him that he would not be promoted unless he removed his relationship status from Facebook, remove visible piercings, and style his hair differently. The cumulative effect of these changes, Mr. Boshaw said, would be to hide his status as a homosexual, and appear more stereotypically masculine.
Ms. Reynolds swore in an affidavit that “at not point during his employment did I tell Mr. Boshaw to change his appearance, including telling him to appear more masculine … At no point during his employment did I tell Mr. Boshaw to hide or remove his relationship status on his social media accounts.”
“Despite Plaintiff’s quick rise at MBC, his work was not without criticism,” Mr. Ludington wrote in his order, explaining that a hair was found in a customer’s food and that one time, Mr. Boshaw brought the wrong resume to an interview with a prospective employee.
Mr. Kepler also expressed frustration, the Order said, at Mr. Boshaw’s attempt to influence matters outside of his traditional role.
“Ryan [should] not [be] focused on a weekly promotion and certainly not about beer. We are not doing a flight week. Ryan [should be] focused on front of house execution, so schedule and labor … Ryan needs to demonstrate that he can stay in his lane and perform,” Mr. Kepler wrote in an e-mail message to Ms. Reynolds.
Mr. Boshaw was fired in May of 2019, the Order says, after missing a mandatory “problem solving meeting” and a shift without notifying management. After being reminded of the meeting, Mr. Boshaw texted a fellow employee.
“Fuckkk. What time is it? I need to find a sitter for the crack of fucking dawn. Those meetings are such a waste of time for MBC,” he said.
Mr. Boshaw testified that he received verbal permission from Ms. Reynolds to skip the meeting however Ms. Reynolds and Mr. Kepler both swore in affidavits that no permission was granted.
The next day, Mr. Boshaw was fired.
“Among other issues, and finally due to your absence and failure to notify management, we have decided to terminate your employment at Midland Brewing Company,” Mr. Boshaw’s termination letter reads.
The Order says that Mr. Boshaw did not inform his friends or former coworkers that he believed he was terminated because of a request to appear more masculine or to hide his sexual orientation, as alleged in his complaint.
Mr. Boshaw testified that he did not want to discuss the alleged discrimination because he was trying to find legal counsel and that he did not want information relayed to the brewery. However, Mr. Boshaw also said that he believed Mr. Kepler fired him because he “honestly thought [he] missed a mandatory meeting and a shift.”
Mr. Ludington ruled that even if Ms. Reynolds did indeed make the comments Mr. Boshaw alleges, it could not constitute direct evidence of discrimination.
“In this case, the remark was alleged to have been made by [Ms.] Reynolds, not [Mr.] Kepler, in the context of a discussion about Plaintiff’s promotion, not his termination, and it allegedly occurred seven months prior to his termination,” Mr. Ludington wrote. “This alleged comment by [Ms.] Reynolds occurred, according to Plaintiff, once and was never the topic of conversation again. This evidence is insufficient to demonstrate direct evidence of sex discrimination.”
Mr. Ludington also noted that Mr. Boshaw’s promotions were not denied or even delayed.
“In fact, exactly the opposite occurred. Plaintiff was hired as a server on March 2, 2018, and then advanced again in September of 2018, November of 2018, and February of 2019,” he wrote.
In one footnote of the Order, Mr. Ludington writes that, “It is difficult to understand how lacking ‘masculinity’ is necessarily a proxy for being male and gay given the number of accomplished, self recognized gay athletes, actors, political leaders and business leaders who do not ‘lack masculinity.’ Further, Plaintiff admits at his deposition that he is unsure how having spiky hair identifies him as a homosexual.”
In the end, Mr. Ludington granted the brewery’s motion and further ordered a dismissal of the case.
“Here, Plaintiff was employed by MBC for over 14 months. Plaintiff furnishes no explanation for how a reasonable juror could conclude that Reynolds and Kepler were discriminating against him because of his sexuality by promoting him and increasing his salary, a process he describes as ‘to say the least, meteoric,'” the Order concludes.
“After Plaintiff’s alleged conversation with Reynolds, he expresses to Reynolds that ‘I love you as my mentor’ and later describes her as ‘the best boss ever.’ He does not dispute that Kepler made repeated efforts to retain him, not get rid of him, and that Kepler had no problem with his sexual orientation. Indeed, he concedes that Kepler’s decision to terminate his employment was based on his honest, good faith belief that he missed a mandatory meeting and that he did not show up for his scheduled shift. In short, the evidence, including Plaintiff’s admissions, is so one-sided that there is no genuine issue of material fact.”
The case is Boshaw v. Midland Brewing Company, No. 19-CV-13656, in United States District Court, Eastern District of Michigan, Northern Division.
Appeal to the Sixth Circuit
Mr. Boshaw filed an appeal of the District Court’s order last month with the U.S. Court of Appeals for the Sixth Circuit.
The appeal’s introduction seeks to paint Mr. Boshaw as a sympathetic figure while acknowledging some of his alleged character flaws.
“The year 2016 truly was a turning point for Ryan Boshaw. Mr. Boshaw had a history of troubled relationships and alcohol addiction. This had caused him to suffer chronic employment instability and led him to multiple criminal convictions,” the appeal begins. “In 2016, he was arrested for drunk driving. He was also charged with resisting arrest because he kicked the door of the police car. And, he was charged with disturbing the peace because he called the nurse who took his blood sample a ‘cunt.’ This was what many in recovery refer to as a ‘rock bottom’ moment for him. He thereafter made the decision to commit to sobriety. He remains so to this day.”
Mr. Boshaw’s lawyer argues that because of the significant factual disputes in the matter, the outcome is best left to a jury instead of a judge.
In the appeal, Mr. Boshaw’s lawyer argues that the brewery used missing a “mandatory” meeting as a pretext to fire Mr. Boshaw, and strongly disputes that Mr. Boshaw did not have permission to miss the meeting.
“There is a significant [emphasis in original] factual dispute as to what happened at this point. Defendant Reynolds, predictably, has claimed that Mr. Boshaw was required to attend the meeting, and that she did not give him permission to miss it. Mr. Boshaw has claimed, repeatedly, that ‘I was told to stay home with my daughter by her so that is exactly what I did,'” the filing states.
The appeal also says that other employees at the brewery frequently missed work without notification, but were not regularly disciplined; and that Mr. Kepler slightly changed the reason why Mr. Boshaw was fired in subsequent e-mail messages and in his deposition.
Finally, the appeal requests that the case be remanded to another judge.
“The Trial Court has made it clear that it does not believe Mr. Boshaw, and will not entertain the possibility that a jury may believe his testimony,” it says, “After its comments, it is hard to imagine how the Court would be able to set aside its view of the case and conduct a fair trial. And, it is hard to imagine how the public would ever view a trial conducted by a judge who has already decided that he does not believe the plaintiff as fair.”
Appeals are heard by a panel of three judges. The Case No. is 21-1365.
Michael Westendorf is the chairman and executive editor of Chemical City Paper. As Executive Editor, he leads the City Paper’s news coverage and editorial team.