Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Emmerick v. Penley-Groseclose

October 5, 2007


The opinion of the court was delivered by: Thomas W. Phillips United States District Judge



The pro se plaintiff, Mark Emmerick ("Emmerick"), seeks $125,000 in compensatory damages in this lawsuit against defendants S&K Famous Brands, Inc. ("S&K"), and Marsha Penley-Groseclose ("Groseclose"),*fn1 the District Manager for S&K, based on state law causes of action for negligent infliction of emotional distress and retaliatory discharge.*fn2 Emmerick originally filed this action in the Circuit Court for Sevier County, Tennessee, on December 8, 2006, after his part-time employment with S&K was terminated after three months [see Doc. 1, pp.8-16]. On January 12, 2007, the defendants timely removed the action to this court, see 28 U.S.C. § 1446(b), based on diversity of citizenship of the parties*fn3 and the amount in controversy exceeding $75,000. See 28 U.S.C. § 1332(a)(1).

This matter is presently before the court on the following motions:

1. Defendants' motion for summary judgment [Doc. 21]; and

2. Plaintiff's motion for hearing on request for summary judgment [Doc. 23].

The issues raised have been briefed by the parties [see Docs. 22, 23, and 24] so that this matter is now ripe for adjudication. For the reasons that follow, defendants' motion will be granted whereby summary judgment will be entered in defendants' favor and this case dismissed against them. Consequently, plaintiff's motion for a hearing will be denied as moot.

I. Factual Allegations

The facts of this case will, of course, be viewed in the light most favorable to Emmerick. S&K is a retailer of menswear, operating approximately 250 stores in the Eastern United States [Doc. 22-2, p.1]. Among S&K's stores is one located in Pigeon Forge, Tennessee [id.]. Groseclose has been employed by S&K as its District Manager at all times relevant to this litigation and, in that capacity, has management responsibility for the supervision of six stores, including the one in Pigeon Forge [id.].

Emmerick completed an application for employment in S&K's Pigeon Forge location on August 25, 2006 [see Doc. 22-5, p.15] and was hired a few days later on September 1st [see Doc. 22-4, p.6].*fn4 Emmerick was hired on a part-time basis, scheduled to work about 24 hours per week [id., p.7]. Emmerick's initial rate of compensation was $7.00 an hour, and his job duties included sales, stocking, and restocking merchandise [id. at p.8].

It is undisputed that during his brief employment of three months, Emmerick reported to Groseclose and to Brenda Peck ("Peck"), the Employment Director of S&K, that certain employees in the Pigeon Forge store were engaging in conduct which violated company policy [see Doc. 22-2, p.2; Doc. 22-3, p.2]. More specifically, Emmerick reported that some employees had worn merchandise before they had paid for it, that at least one employee had borrowed cash from the cash register without leaving an IOU, and that employees had thrown coins, candy and coat hangers in the store [Doc. 22-3, p.2]. During his deposition, Emmerick confirms that his own handwritten notes from the conversations that he had with Groseclose and Peck are consistent with S&K's records with respect to the behavior of other employees about which he was complaining: ties and shirts were worn and returned to stock; shorting the cash drawer without leaving an IOU; the failure of co-workers to clean store windows; and their talking on cell phones, napping, taking smoke breaks, and making rude noises [see Doc. 22-4, pp.23-26]. Emmerick further testifies that his notes also reflect other acts of his co-workers that he deemed misbehavior -- addresses for his customers appearing on other employees' postcard mailing lists, objects thrown in the store such as hangers, cardboard, coins, and candy, as well as coat hangars which skidded under the restroom door [id. at p.27].

It is also undisputed that after Emmerick reported this inappropriate co-worker behavior to Peck through the company hotline, Peck directed that Groseclose go immediately to the store and investigate [see Doc. 22-2, p.2; Doc. 22-3, p.2]. Although Groseclose did not discover any "unlawful conduct," she testifies that two employees did acknowledge that they had engaged in some of the incidents reported by Emmerick, in violation of company policy [Doc. 22-2, p.2; Doc. 22-3, p.2]. Consequently, those two employees were promptly dismissed [id.]. Groseclose then informed Emmerick that those who engaged in the misconduct had been terminated and she "encouraged him to focus on creating a professional work environment and increasing his sales." [Doc. 22-2, p.2].

Finally, it is undisputed that approximately three weeks after these other employees were dismissed, Emmerick worked his last day at S&K when he was suspended with pay [see Doc. 22-4, p.9; see also Doc. 22-2, p.3].*fn5 Emmerick admits that he was later terminated after being suspended with pay [see Doc. 22-4, p.9]. Groseclose testifies verbatim as follows regarding the reason for Emmerick's discharge:

6. The decision to discharge the plaintiff approximately three weeks later was the direct result of his disruptive behavior in the store in interactions with co-workers, and his rude, argumentative and insubordinate conduct towards me when I tried to meet with him to discuss his actions and his work. He yelled, repeatedly calling me "liar" and said I was "full of it." As he was too disruptive to remain in the workplace, I suspended him pending consultation with ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.