United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN United States District Judge
matter is before the court on defendant's motion for
partial summary judgment, made pursuant to Federal Rule of
Civil Procedure 56. (DE 28). In this posture, the issues
raised are ripe for ruling. For the reasons that follow,
defendant's motion is denied in part and granted in part.
OF THE CASE
initiated this action on August 6, 2015, asserting claims
against defendant for retaliation, constructive discharge,
and hostile work environment, in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq. Plaintiff also asserts
against defendant a state law claim for intentional
infliction of emotional distress.
to commencement of this action, on December 31, 2013,
plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”). On or around
November 8, 2014, the EEOC issued a probable cause
determination, which found that defendant constructively
discharged plaintiff and subjected him to a hostile work
environment. Plaintiff received notice of right to sue from
the EEOC on or about June 5, 2015.
to this court's case management order, discovery
commenced December 3, 2015, and concluded October 28, 2016.
Defendant filed the instant partial motion for summary
judgment on November 21, 2016, accompanied by a statement of
material facts, appendix thereto, and memorandum of law. (DE
28-31). Defendant seeks summary judgment on plaintiff's
claims for retaliation, constructive discharge, and
intentional infliction of emotional distress, but not hostile
work environment. Defendant relies on the depositions of
employees Wayne Tarkington (“Tarkington”),
William Buffkin (“Buffkin”), Lawerence McCall
(“McCall”), and Kenneth Geer
(“Geer”). Defendant also relies on
plaintiff's deposition and the declaration of Gilbert
December 15, 2016, plaintiff filed response in opposition to
defendant's motion, accompanied by a statement of
material facts, appendix thereto, and memorandum of law. (DE
33-35). In support of his position, plaintiff relies on the
same employee depositions as defendant, as well as the
depositions of employees Christina Atkinson
(“Atkinson”) and Wanda Smith
(“Smith”),  and the depositions of his daughters,
wife, and expert witness, Robert L. Goldstein, M.D.
(“Dr. Goldstein”). Plaintiff also relies on
excerpts from defendant's 2013 store handbook, his
employee time records, resignation letter dated August 16,
2013, Atkinson's promotion and employee time records,
medical reports and correspondence from his cardiologist,
John S. Kelley, M.D. (“Dr. Kelley”), and an audio
recording of an August 2013 meeting plaintiff had with Smith
filed a reply on January 11, 2017, accompanied by additional
depositions and declarations. Over defendant's objection,
the court allowed plaintiff to file sur-reply on January 25,
2017, for the purpose of addressing evidentiary issues first
raised in defendant's reply. (See DE 47).
facts summarized in the light most favorable to plaintiff are
as follows. Defendant is a national retailer and distributor
of automotive parts. Defendant has a written policy, which
prohibits sexual harassment in the workplace. (DE 34 ¶
1). The policy directs employees to report any issues,
including issues involving alleged sexual harassment to their
immediate supervisors. If an employee is not satisfied with
his or her supervisor's response, the policy directs the
employee to report his or her complaints to higher levels of
management, human resources, or the company's corporate
headquarters. (DE 35-6 at 3). Upon receipt of a sexual
harassment complaint, defendant's policy requires
management to “notify all appropriate individuals and
make sure the situation is investigated.” (Id.
around September 2012, defendant hired plaintiff as a
part-time commercial driver in its Whiteville, North Carolina
store (“Store 1260”). At that time, Tarkington
was general manager of Store 1260. (DE 29 ¶ 4).
Tarkington reported to district manager Geer. (Id.
¶ 5). As store manager, Tarkington was “in charge
of everything under the four walls.” (Id.
¶ 16). Tarkington had authority to discipline employees
and make recommendations to the district manager regarding
terminations and promotions. (Id. ¶ 17-18; DE
34 ¶¶ 17-18). At all relevant times herein,
plaintiff reported directly to Smith, the commercial manager.
(DE 29 ¶ 11; DE 34 ¶ 11).
time plaintiff applied for the position with defendant, he
was teaching classes part-time at a local college, which he
continued to do throughout the duration of his employment.
(Id. ¶¶ 7, 10; DE 34 ¶ 10). As a
part-time employee of defendant, plaintiff could limit his
work availability to certain days or hours of the day in
order to accommodate his teaching schedule. (DE 29 ¶
around March 2013, defendant hired Atkinson as a sales clerk
in the DIY section of Store 1260. (DE 34 ¶ 26).
According to plaintiff, “[a] few days after [Atkinson]
started” working for defendant, she began sexually
harassing plaintiff. (Id. ¶ 67). Atkinson
frequently told “off-color jokes, ” made
“sexually explicit” comments, and made
inappropriate advances toward plaintiff. (Id. ¶
68). For example, on one occasion Atkinson “walked by
[plaintiff] and grabbed [him] by the nipple and twisted it
until [he] had a bruise the size of a quarter.”
(Id. ¶ 75) (internal quotations omitted).
Atkinson also often “felt [plaintiff's] behind
and . . . groin.” (Id. ¶ 35).
after Atkinson began harassing him, plaintiff complained to
Smith about Atkinson's actions, including her
“grabbing and twisting his nipple.” (Id.
¶ 76). According to plaintiff, Smith “said
nothing” in response to plaintiff's complaints.
(Id.). The week following plaintiff's initial
complaint to Smith, “Atkinson touched [plaintiff's]
genitals.” (Id. ¶ 77). Once again,
plaintiff complained to Smith, informing her that Atkinson
had touched him in the “groin area.”
(Id. ¶ 78). In spite of plaintiff's
repeated complaints to Smith, Atkinson continued to make
inappropriate advances towards plaintiff. (Id.
¶ 80-87). Approximately six to eight weeks after his
first complaint to Smith, plaintiff told Tarkington about
Atkinson's behavior. (Id. ¶
At that time, plaintiff told Tarkington that Atkinson often
pinched his nipples and requested that Tarkington speak with
Atkinson. (Id. ¶ 36). According to plaintiff,
Tarkington never spoke to Atkinson about the alleged
harassment. (DE 34 ¶ 35)
around May 2013, a full -time driving position became
available at Store 1260 when Jamison Buffkin
quit. (DE 34 ¶ 88). Plaintiff told Smith,
his immediate supervisor, “that [he] would love . . .
the full-time job.” (Id. ¶ 88) (internal
quotations omitted). In response, Smith allegedly said to
plaintiff, “no, [you] complain too much.”
(Id.) (internal quotations omitted). Plaintiff did
not ask Tarkington to be considered for the position. (DE 29
¶ 23; DE 34 ¶ 23). On or about May 19, 2013,
Atkinson was promoted to the full-time driver position. (DE
29 ¶ 27; DE 34 ¶ 27). Tarkington and Smith offered
Atkinson the promotion. (DE 34 ¶ 27).
2013, plaintiff complained to Tarkington about Atkinson's
sexual harassment. (DE 34 ¶ 28). At that time,
Tarkington informed Geer of plaintiff's complaints.
(Id. ¶ 32). In response, Geer told Tarkington
that “he would handle it.” (DE 35-5 at 45:14).
Sometime after plaintiff told Tarkington about Atkinson's
behavior, plaintiff took a three-week vacation. (DE 34 ¶
After plaintiff returned to work, on August 15, 2013,
Atkinson again grabbed and twisted plaintiff's nipple.
(Id. ¶ 101). “Almost immediately after
the assault, [p]laintiff told . . . McCall, that he wanted to
speak with him and his immediate supervisor Smith.”
(Id. ¶ 102). Around six o'clock that
evening, McCall and Smith met and spoke with plaintiff.
(Id. ¶ 103).
next day, August 16, 2013, plaintiff spoke with Geer on the
telephone. (Id. ¶ 107). At that time, plaintiff
agreed to meet with Geer on August 19, 2013. (Id.
¶ 107). Notwithstanding the foregoing, plaintiff gave
Smith a resignation letter on August 16, 2013. (Id.
¶ 108). When plaintiff met with Geer on August 19, 2013,
Geer asked plaintiff if he would “come back to work
until [the company] c[ould] investigate [his claims].”
(DE 34 ¶¶ 47, 111). Geer “expressed [to
plaintiff] a willingness to move . . . Atkinson to another
store, ” and told McCall to move Atkinson to the
company's Shallotte, North Carolina store pending
investigation of plaintiff's complaints. (Id.
¶¶ 46, 48). As of August 19, 2013, defendant had
not initiated any investigation into plaintiff's claims.
(DE 34 ¶ 116; DE 35-18 at 40:3-22).
harassment caused plaintiff great anxiety and stress.
(Id. ¶ ¶ 60-61). As a result of the stress
he endured, plaintiff experienced chest pains, which forced
him to seek emergency medical attention on September 15,
2013. (Id. ¶ 119). Thereafter, plaintiff's
chest pains continued to worsen, causing him to undergo a
heart catheterization on October 25, 2013. (Id.
¶ 120). Plaintiff's cardiologist, Dr. Kelley,
allegedly told plaintiff that his “anxiety and . . .
chest pains were stress related.” (Id. ¶
64; DE 35-21).