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Carson v. Pepsi Bottling Group

May 16, 2007

ALVIN DEVON CARSON, PLAINTIFF
v.
PEPSI BOTTLING GROUP, DEFENDANT



The opinion of the court was delivered by: James H. Jarvis United States District Judge

MEMORANDUM OPINION

This is the fourth in a series of lawsuits filed in this court by the plaintiff arising out of the termination of his employment with defendant Pepsi Bottling Group (Pepsi) in May 2004. Currently pending is defendant's motion to dismiss or for summary judgment [Court File #25]. Because matters outside the pleadings have been submitted and considered by the court, it will be treated as a motion for summary judgment. See Rule 12(c), Federal Rules of Civil Procedure. For the reasons that follow, the motion will be granted.

I. Factual Background

Plaintiff Alvin Carson was previously employed as a warehouseman in Pepsi's Knoxville distribution operations. In May 2004, he was discharged from his employment for allegedly violating defendant's attendance policy. Under that policy, any employee who accrued three no-call/no-show absences in a rolling 12-month period would be discharged. Plaintiff purportedly accrued three no-call/no-shows in less than two months and was accordingly discharged.

In his deposition, the plaintiff admitted that: (1) he was an employee at-will of Pepsi; (2) Pepsi could end his employment for any or no reason; (3) Pepsi could change any policy without notice, for any or no reason; and (4) he had signed an acknowledgment that said, in bold type, ALL EMPLOYEES ARE "AT WILL" EMPLOYEES, meaning their employment can be terminated at will by either the Company or the employee at any time for any reason. [Carson Dep. at 39-42]. Plaintiff claims that he was orally promised that he had job security as long as his job performance was good, and that he had good reason for absences from work. However, plaintiff has no written promises or contract with Pepsi which would alter plaintiff's acknowledgment that he was an employee at will.

Following his termination in May 2004, plaintiff filed three prior lawsuits in this court listed as follows:

(1) Civil Action No. 3:05-cv-177, in which plaintiff claimed race and disability discrimination under Title VII, the Americans with Disabilities Act, and the Civil Rights Act, alleging that he was wrongfully terminated, denied medical leave, and denied a personal day. He voluntarily dismissed this lawsuit with prejudice by stipulation on December 13, 2005.

(2) Civil Action No. 3:05-cv-294. On June 13, 2005, plaintiff sued Pepsi and its payroll subsidiary, AJN Holdings, Inc., alleging that his discharge was in retaliation for a workers' compensation claim. He later moved to amend with a claim for whistleblower retaliation, in violation of Tennessee law and the National Labor Relations Act. Defendants' summary judgment motions were granted.

(3) Civil Action No. 3:06-cv-329. On August 25, 2006, plaintiff again sued Pepsi alleging that it denied him medical leave in 2004 in violation of the Family and Medical Leave Act. On January 19, 2007, this court entered summary judgment for Pepsi, plaintiff having admitted in his deposition that he knew the requirements for obtaining FMLA leave and that he did not comply with them. Plaintiff has appealed this case.

In the pending case, plaintiff makes, in his second amended complaint, the following six claims:

(1) Employment-at-will doctrine;

(2) Fraud;

(3) Defamation of character;

(4) Breach of good faith and ...


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