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Butler v. Dunn

United States District Court, M.D. Alabama, Northern Division

December 20, 2019

BYRON BUTLER, Plaintiff,



         This matter comes before the court on Defendants Damon Dunn and Lagunita Franchise Operations, LLC's Renewed Motion to Dismiss. (Doc. 15). Upon consideration, the motion is GRANTED.


         There are people who love their coffee. And then there are people like Plaintiff Byron Butler. His drink of choice? Hot coffee in his Dunkin' Donuts Refill Cup, with seven creams, seven sugars, seven pumps of French vanilla swirl, and a single pump of caramel swirl. (Doc. 14 ¶10). But Butler's sugary morning ritual ended when the Vaughn Road Dunkin' Donuts began charging Butler and his wife $0.25 for each extra pump of swirl. (Doc. 14 ¶12).

         Butler is an African-American man and an investigator at the Alabama Ethics Commission. When he found out about the extra charges, Butler complained. Damon Dunn, the out-of-state manager of the Dunkin' Donuts store in question, later told the Montgomery Advertiser that Butler (1) complained that the extra charges were based on his race and (2) misused his position as an investigator to intimidate Dunkin' Donut's employees about the extra charges. The Montgomery Advertiser reported Dunn's side of the story as follows:

When Damon Dunn received notification of a discrimination complaint against his Dunkin' Donuts store on Vaughn Road, he was concerned at first, then confused and then angry.
It's corporate policy that customer complaints are reviewed and handled in a timely manner, but the majority of those are disgruntled customers upset about a long wait time or food prepared incorrectly.
“When I saw we had a discrimination complaint, I knew I wanted to personally review this and handle it myself, ” he said.
Byron Butler, a man Dunn would learn is an investigator with the Alabama Ethics Commission, accused the store in May of charging black customers more for extra pumps of coffee flavoring known as “swirl” at the restaurant. A claim that Dunn says is unfounded.
Upset at what Butler perceived as a slight against his race, he then told an employee he was an investigator and took a verbal statement from her about the charging practices at the store. The employee, who is 18, thought she'd face legal trouble if she didn't talk with him.
Dunn considers that an abuse of Butler's power as a public employee and unethical especially for a man who works with the state's investigating authority on ethical violations.
“Our public officials have our trust to be fair and honest. They must be held accountable if they abuse their authority to leverage favorable deals from local small business owners if we do not consent to their demands, ” Dunn said. “Somebody has to hold public officials accountable.” 75 cents for swirl The initial complaint was unclear as a process server emailed a notice to Lagunita Franchise Operations, LLC, the company that owns the Vaughn Road doughnut shop, about the alleged discrimination.
Unsure what the issue was, Dunn reached Butler by phone, during which the investigator allegedly told the owner that he'd been charged more for the flavoring than white customers.
“I simply told him that's not so, ” Dunn said. “First, I'm black. Why would I tell my employees to discriminate against people who are of the same race as me? Second, the cashiers just push a button on a screen and it charges what it charges. There's no button for black customers and white customers.” Repeated efforts to reach Butler at the number Dunn called and at his office at the commission were unsuccessful.

         Kirsten Fiscus, Dunkin' Donuts Owner Accuses Ethics Commission Investigator of Abuse of Power, Montgomery Advertiser (May 31, 2019),[1]

         Butler says the article is wrong. He alleges in this lawsuit that he wrote Dunn a letter expressing his concerns about the extra charges. But he alleges that the letter did not reference his job with the State or suggest that race had a role in the price increase. (Doc. 14 ¶¶16-19). He also alleges that he did not intimidate store employees or misuse his position as an investigator.

         Dunn filed a complaint against Butler with his employer, the Alabama Ethics Commission, in which he made these charges. (Doc. 14 ¶¶42-44). He gave a copy of his complaint to the Montgomery Advertiser, and one of their reporters wrote the story quoted above. (Doc. 14 ¶¶48-49). In response to the Montgomery Advertiser article, several anonymous ...

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