United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
L. BRASHER, UNITED STATES DISTRICT JUDGE.
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
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).
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
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
“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
“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.
Fiscus, Dunkin' Donuts Owner Accuses Ethics
Commission Investigator of Abuse of Power,
Montgomery Advertiser (May 31, 2019),
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.
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 ...