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Johnson v. Dollar General Corp.

July 14, 2008

JESSE THOMAS JOHNSON, PLAINTIFF,
v.
DOLLAR GENERAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier

MEMORANDUM

Plaintiff Jesse Thomas Johnson alleges Defendant Dollar General Corporation violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Tennessee Human Rights Act, Tenn. Code Ann. §4-21-401. He also alleges he was subjected to physical assault, intentional infliction of emotional distress, and false imprisonment. Before the Court is Defendant's motion for summary judgment (Court File No. 49) and a related motion to quash or dismiss (Court File No. 60). Having reviewed the parties' briefs, the evidence, and the applicable law, the Court will GRANT IN PART and DENY IN PART Defendant's motion for summary judgment (Court File No. 49) and GRANT the motion to quash or dismiss (Court File No. 60).

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. Plaintiff's Employment at Dollar General

Plaintiff begin working at a Dollar General store as a part-time clerk in October 2003 (Court File No. 50). Other employees of the store included Plaintiff's aunt, Arbutus "Daisy" Smith, store manager Tim Trent, assistant manager Skip Davis, and Robert Watford (Court File No. 50).

The allegations recounted here are stated in a light most favorable to the Plaintiff. Shortly after Plaintiff began working, Watford and Davis allegedly began making inappropriate comments to Plaintiff. About a week and a half after Plaintiff began working, Watford allegedly commented "if you've got big feet, you've got to have a bigger penis" (Plaintiff dep. p. 48; Court File No. 57). Davis also told Plaintiff's aunt that he would like to see Plaintiff's penis (Smith Dep. 61-62). In addition, Watford allegedly rubbed Plaintiff's stomach, and at a later time, Davis did the same (Court File no. 50). Subsequently, Plaintiff alleges Davis walked up from behind, pulled Plaintiff's pants down, laughed, and walked away (Court File No. 50). Plaintiff contends that on several occasions, Davis and Watford rubbed his stomach and made other inappropriate comments to him. The comments were about him having "a nice butt" and/or "being every gay person's dream" (Court File No. 57).*fn1

The last incident occurred on or about December 21, 2003. Plaintiff alleges he was called into an office with Watford and Davis. They closed the door and Davis grabbed Plaintiff from behind, holding his arms while Watford attempted to pull down Plaintiff's pants. Plaintiff tried to fight back, but he and Davis fell to the floor on their sides. Watford then pulled down Plaintiff's pants, but was unable to pull down his boxers. After Watford pulled his pants down, the two men left the office (Court File No. 57). During the incident, Plaintiff did not scream or yell, but Davis and Watford were laughing (Court File No. 57). Plaintiff's aunt was also in the store during this incident.*fn2 She took Plaintiff home, and he never returned to work. Plaintiff believes he quit; however, Defendant contends he was fired for not coming to work (Court File No. 57). Plaintiff only returned to the Dollar General store to pick up his final paycheck.

Plaintiff contends he informed Trent, the store manager, about the comments and stomach rubbing incidents on four or five occasions (Court File No. 57). To Plaintiff's understanding, Trent spoke with both men, gave Watford a disciplinary notice, and threatened them with termination. Defendant, however, alleges Trent did not receive any complaints from Plaintiff about harassment or discrimination (Court File No. 50).

B. Anti-Harassment and Discrimination Policy

Defendant has an Anti-Discrimination and Harassment Policy that is disseminated to employees upon hiring. The policy includes a mechanism for reporting harassment, discrimination, and retaliation (Court File No. 50). The policy states:

All Dollar General employees have the right to work in a environment free from all forms of discrimination and conduct which can be considered harassing, coercing, or disruptive. Dollar General values and respects the rights and dignities of each person and will not tolerate discrimination or harassment based on . . . any other characteristic protected by law. Examples of conduct prohibited by this policy include, but are not limited to: unwelcome intentional touching of another person or an unwanted intentional physical contact, including patting, pinching, or brushing against another person's body. Asking unwelcome questions or making unwelcome comments about other person's sexual activities, dating, personal or intimate relationships or appearance.

Conduct or remarks that are sexually suggestive or that demeanor show dislike for a person or a class of person because of gender (including jokes, pranks, teasing, obscenities, obscene or rude gestures . . . blocking physical movement.) (Court File No. 57).

The Employee Response Center ("ERC") and the Alternative Dispute Resolution Center ("ADR") are both places an employee can call to address employment issues (Court File No. 50). The toll-free numbers to both centers are provided for employees in a number of ways, including the employee handbook, policies, store posters, periodic paycheck stubs, a pamphlet, and store calendars (Court File No. 50). Plaintiff received the Employee Handbook at the time of his employment as did Trent, Davis, and Watford. (Court File No. 50). Plaintiff never called the ERC or the ADR. He contends he did not have the telephone number (Court File No. 57).

Trent called the ERC in January 2004 after he learned of one of the incidents (Court File No. 50). Plaintiff contends his aunt told Trent of the incident the day after it occurred; Defendant contends Plaintiff's aunt did not tell Trent until a week later, and Trent said he learned of the incident from a neighboring business owner (Court File No. 50). Nevertheless, after the manager reported the incident, an investigation was conducted. Defendant terminated Watford's and Trent's employment. Davis had previously resigned (Court File No. 50). Subsequently, Plaintiff was offered his job back but he declined the offer (Court File No. 50).

Dollar General also has a zero tolerance policy. Under that policy, if a store manager becomes aware of something which would violate the policy, he must address the problem and then report it to his district manager or to his immediate supervisor (Court File No. 57). Assistant managers are required to report any instances of inappropriate action to an immediate supervisor (Perry Dep. 41-42). Dollar General also provides training on its zero tolerance policy which is "conducted through district workshops periodically throughout the company" (Court File No. 57).

C. Procedural History

Plaintiff filed his original complaint in this case against Dollar General Corporation (Court File No. 1), and he served Dollar General Corporation in Goodlettsville, Tennessee (Court File No. 2). Defendant filed a motion to dismiss, identifying itself as "Dolgencorp, Inc., incorrectly identified as Dollar General Corporation." (Court File No. 3). The same wording appears in multiple writings from Defendant (e.g., Court File Nos. 5, 5-2, 20, 31, 38).

After the motion to dismiss was resolved, Dollar General Corporation filed an answer to the complaint (Court File No. 31). In the answer, Defendant again identified itself as Dolgencorp. The answer also stated, "Defendant if properly named as Dolgencorp, Inc. as opposed to the incorrect Defendant named in this action . . . admits it may be served through its registered agent. . . ." (id., p. 2). The answer concludes by stating "Defendant ...


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