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Ward v. Autozoners, LLC

United States District Court, E.D. North Carolina, Southern Division

September 5, 2017

KEITH WARD, Plaintiff,


          LOUISE W. FLANAGAN United States District Judge

         This 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.


         Plaintiff 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.

         Prior 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.

         Pursuant 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 Howell (“Howell”).[1]

         On 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”), [2] 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 and McCall.

         Defendant 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).


         The 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. at 2).

         In or 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).

         At the 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 ¶ 19).

         In or 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).

         Shortly 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. ¶ 35).[3] At that time, plaintiff told Tarkington that Atkinson often pinched his nipples and requested that Tarkington speak with Atkinson. (Id. ¶ 36).[4] According to plaintiff, Tarkington never spoke to Atkinson about the alleged harassment. (DE 34 ¶ 35)

         In or around May 2013, a full -time driving position became available at Store 1260 when Jamison Buffkin quit.[5] (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).

         In July 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 ¶ 33).[6] 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).

         The 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).

         Atkinson's 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).[7]

         COURT'S ...

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