United States District Court, S.D. Mississippi, Northern Division
ORDER ON MOTION FOR SUMMARY JUDGMENT AS TO
T. WINGATE UNITED STATES DISTRICT JUDGE
the court is the Motion for Summary Judgment as to Liability
filed by the Plaintiff, United States Equal Opportunity
Employment Commission (hereafter “EEOC”) [doc.
no. 81]. Defendant, Danny's of Jackson, LLC (hereafter
“Danny's of Jackson” or
“Defendant”) opposes the motion. The parties have
completed their briefing on the motion and this court is
prepared to rule.
lawsuit is an enforcement action brought by the EEOC under
the auspices of Title VII of the Civil Rights Act of
1964, as amended, and the Civil Rights Act of
1991, to correct allegedly unlawful employment practices of
the Defendant based on race. The suit seeks relief on behalf
of Ashley Williams and a class of Black female exotic dancers
(hereafter referred to collectively as
‘complainants') who worked at Danny's Downtown
Cabaret (also referred to as “Danny's”) and
allegedly were subjected to disparate terms and conditions of
employment based on their race. The Defendant, Danny's of
Jackson, is the owner of Danny's Downtown Cabaret, a
“strip club” located on S. West Street in
Jackson, Mississippi. Danny McGee Owens (hereafter
“Owens”) is the only member of Danny's of
Downtown Cabaret was the subject of a previous EEOC lawsuit.
Sherida Edwards, (hereafter “Edwards”), a dancer
who worked for the club beginning in 2009, filed a charge
with EEOC alleging that she and the other Black dancers were
required to adhere to a schedule that required them to work
certain days and shifts. If they missed their assigned shift,
said Edwards, they were fined $25.00. White dancers,
according to Edwards, were not made to comply with a schedule
and were not fined for missing any certain days. White
dancers, she said, could set their own schedules, choosing to
work on whatever days they wanted. This schedule had the
effect of limiting the number of Black dancers who worked on
any given shift. Edwards filed her charge of discrimination
with the EEOC in April of 2011 and an amended charge in
its investigation, EEOC made the following findings.
The Commission's investigation revealed that Respondent
employed substantially fewer black dancers than white
dancers, limited the number of black dancers who could
perform on a single shift, and required black dancers to work
an assigned schedule. The failure by black dancers to comply
with that schedule resulted in financial sanctions.
Respondent did not subject white dancers to the same terms
and conditions of employment as Respondent imposed on black
dancers. Subsequent to Charging Party filing her initial
charge with the Commission on April 18, 2011, Respondent
subjected her to a relentless pattern of harassment and
threats. Respondent also adversely limited Charging
Party's work schedule.
EEOC Determination. [doc. no. 81-9 at p. 2]
EEOC additionally concluded that there was reasonable cause
to believe that a class of Black employees had been subjected
to disparate terms and conditions of employment because of
race and that the charging party had suffered realiation and
constructive discharge, all in violation of Title VII. [doc.
no. 81-9 at p. 2]
September 28, 2012, the EEOC filed suit against Baby O's
Restaurant, Inc., the owner of Danny's Downtown Cabaret
at that time. Equal Employment Opportunity Commission v.
Baby O's Restaurant, d/b/a Danny's, Civ. No.
3:12-cv-681 (S.D Miss. Sept. 28, 2012). The suit was settled
by consent decree on June 28, 2013. The EEOC filed a motion
on December 18, 2014, for civil contempt against Baby O's
for allegedly violating the terms of the consent decree. That
motion was resolved by entry into an Amended Consent
Decree on January 26, 2016. By September of that same year,
EEOC had filed another motion for contempt against Baby
O's for failure to comply with the Amended Consent
Decree. This proceeding was also resolved by mutual
agreement, resulting in a Second Amended Consent
Decree in March of 2017. Tellingly, this Second Amended
Consent Decree was entered into and signed by Danny McGee
Owens as president of Danny's Of Jackson, LLC. Civ. No.
3:12-cv-681 [doc. no. 42].
August of 2013, shortly after the entry of the first consent
decree in the previous suit, Ashley Williams filed her charge
with the EEOC. Williams EEOC charge [doc. no.
79-17]. Williams' charge alleged that she had been
discriminated against because of her race and that she was
fired from her position for refusing to work at Black
Diamonds. This was a strip club recently opened by Owens'
son, Danny Daxon Owens (hereafter “Dax”), across
the street from Danny's Downtown Cabaret. Notice of the
charge was sent to Dax, Manager of Danny's Downtown
Cabaret, who, in turn, informed Owens, his father.
Affidavit of Daniel Daxon Owens [doc. no. 81-11].
The EEOC issued a Letter of Determination on June 2, 2016,
finding reasonable cause to believe that the Defendants had
violated Title VII. EEOC Letter of
Determination [doc. no. 81-13].
conclusion of its investigation, EEOC issued its letter of
determination, dated June 1, 2016, which included the
Examination of the evidence revealed that Respondent treated
Williams and a class of other black female entertainers in a
discriminatory manner and subjected them to segregated
working conditions. Specifically, Respondent assigned
Charging Party and a class of black dancers to work at Black
Diamonds. The assignment at Black Diamonds paid significantly
less than comparative assignments at Danny's. Moreover,
Charging Party and a class of blacks were subjected to
harsher disciplinary action than similarly situated White
entertainers in the form of excessive fines.
Based on its investigation the Commission has concluded there
is reasonable cause to believe discrimination occurred
because Charging Party and a class of black female employees
were subjected to disparate terms and conditions of
employment by Respondent in violation of Title VII.
EEOC Determination Letter [doc. no. 81-13 at p. 3]
at conciliation failed and on July 29, 2016, the Plaintiff
issued to Defendants a Notice of Failure of Conciliation. On
behalf of the complainants, the EEOC filed the instant
lawsuit on September 30, 2016.
suit initially was brought against Danny's Restaurant,
LLC, as well as against Danny's of Jackson, LLC.
Danny's Restaurant, LLC did not file an answer nor enter
an appearance in this cause, and the Clerk of Court entered
default against it on August 24, 2017, [doc. no. 41]. The
only remaining Defendant is Danny's of Jackson, LLC,
formerly known as Baby O's Restaurant, Inc., doing
business as Danny's Downtown Cabaret.
lawsuit, Plaintiff seeks, inter alia, injunctive
relief; back pay with prejudgment interest for Ashley
Williams, the complainant terminated by the Defendants;
compensation for past and future pecuniary losses,
compensation for past and future and non-pecuniary losses;
and other affirmative relief to make all of the complainants
whole. Plaintiff also asks for punitive damages for what it
alleges to be malicious and reckless conduct.
EEOC filed this motion, in accordance with Rule 56 of the
Federal Rules of Civil Procedure, for summary judgment as to
liability on the claims asserted by the EEOC. This court has
previously granted partial summary judgment motions finding
that the dancers working at Danny's Downtown Cabaret are
“employees” of the club as opposed to
“independent contractors”, and that Danny's
of Jackson, LLC is the successor in interest to Baby O's
Restaurant, Inc., for purposes of liability.
contends that it has produced direct evidence of unlawful
discrimination on the basis of race and that no genuine issue
of fact exists on any of the issues of liability. Danny's
of Jackson opposes the motion and denies that it is liable
for the alleged violations of Title VII, because, says
Danny's of Jackson, the complainants did not suffer any
adverse employment action and were not subjected to disparate
terms and conditions of employment.
McGee Owens (hereafter “Owens”), already the
owner of a strip club in Memphis, Tennessee, opened a strip
club in Mississippi on Lakeland Drive in Jackson. The club
was later moved to the downtown Jackson area.
a felony conviction, Owens was incarcerated with the Federal
Bureau of Prisons from 1992 to 2016. At the time Ashley
Williams filed her charge with the EEOC on August 2, 2013,
Owens was in prison, and his son, Danny “Daxon”
Owens, (hereafter “Dax”) was the general manager
of the club, which was operating as Danny's Downtown
Cabaret on South West Street in Jackson, Mississippi. Dax was
the general manager during the period relevant to the
complaints of discrimination sub judice. According
to Michael Rayner and Owens' 30(b)(6) deposition [doc.
no. 81-7], Dax was the general manager of Danny's
Downtown Cabaret from 2010 until 2016. Despite being
incarcerated during this period, however, Owens remained
deeply involved in the operations of the club. See B.
Rayner Dep. 62:25-63:1 [doc. no. 79-15 pp.18-19];
Wade Dep. 24:11-24 [doc. no. 79-14 at pp. 8-9].
Owens' release from prison in 2016, he formed Danny's
of Jackson LLC. His son Dax was originally listed as a member
of the LLC but that was later changed to reflect that Owens
is the sole member. The assets of Danny's Downtown
Cabaret were transferred from Baby O's Restaurant, Inc.,
to Danny's of Jackson. Owens subsequently replaced Dax in
the management role over the club.
OPERATIONS OF DANNY'S DOWNTOWN CABARET
brief describes the physical layout of the club. Deposition
testimony and declarations of former employees support this
description. The Defendant does not dispute any of the
club has one main stage and several satellite stages where
the dancers perform to music. On nights when a lot of dancers
perform, they may dance in pairs on stage. They generally
perform in the same order as they arrived and checked in. The
EEOC contends, however, that Dax or Owens oftentime would
depart from this procedure when too many Black dancers
appear. This matter will be discussed in more detail later.
The dancers receive tips for their performances; these tips
are their only compensation for the stage dances.
areas are positioned around the perimeter of the club, called
VIP areas. At these venues, the dancers treat their guests to
more private dances, in exchange for set fees established by
club management. In addition to these VIP rooms, other rooms
are provided for a higher dance fee of $100 or $300. For
safety purposes, these areas feature cameras.
are required to pay a fee at the door to enter. These patrons
are generally seated at tables on the open floor area where
they can watch the dancers and consume drinks. Dancers may
circulate around the floor, in and among the tables, to
solicit drinks and private dances. Waitresses also circulate
among the tables to take drink orders. Managers and security
personnel walk the floor as well, to keep track of the number
of dances each performer is selling, and for security
purposes. A small bar area with seating sells beer.
club schedules two shifts per day. The day shift begins in
the early afternoon. Fewer customers and employees are
present during the day. Night shifts are more lucrative; more
customers are present. Thursday, Friday and Saturday nights
are the most profitable nights. The night shift begins at
7:00 p.m. Dancers wanting to dance that night must arrive by
11:00 p.m. The club closes around 2:00 a.m., or later, on
busy nights. Generally, the performers have no set work
schedules, except for the schedules applied to the Black
dancers, as will subsequently be discussed in more detail.
Rayner said in her deposition:
Q: Okay. And how was it decided which dancers danced on day
or night shift? How was that decided?
A: It's just who showed ...