Ayers v. Wal-Mart Stores, Inc.

• Decision Date: 29 July 1996
• Docket Number: No. 95-121-CIV-ORL-22.,95-121-CIV-ORL-22.
• Citation: 941 F.Supp. 1163
• Parties: Ruth AYERS, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

941 F.Supp. 1163

Ruth AYERS, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 95-121-CIV-ORL-22.

United States District Court, M.D. Florida, Orlando Division.

July 29, 1996.

COPYRIGHT MATERIAL OMITTED

Mary Claire O'Rourke, Paul S. Rothstein & Associates, Gainesville, Florida, and Carol Swanson, Law Office of Carol Swanson, Orlando, Florida, for Plaintiff.

Peter W. Zinober and Charles A. Powell, IV, Zinober & McCrea, P.A., Tampa, Florida, for Defendant.

ORDER

CONWAY, District Judge.

This cause comes before the Court on Wal-Mart's Motion for Separation of Issues at Trial (Doc. 97); Motion for Partial Summary Judgment (Doc. 120); and Ayers' Motion to Strike Defendants' Memoranda in Support of Their Objections to Plaintiff's Trial Exhibits (Doc. 140).

Plaintiff, Ruth Ayers, has been employed by Wal-Mart since August 1988. Ms. Ayers alleges that Mr. Uzochukwu, an Assistant Manager, made unwelcome and offensive sexual advances to her from January through August 1994, while she was employed at Wal-Mart's New Smyrna Beach store. Ayers is suing Wal-Mart for sexual harassment under Title VII and under its state law counterpart, Fla.Stat.Ann., Chapter 760 et seq. Ayers also asserts pendent state law claims of intentional infliction of emotional distress; respondeat superior liability for intentional torts of Wal-Mart's employees; and for negligent retention against the company.

I. Wal-Mart's Motion for Separation of Issues at Trial

Wal-Mart seeks bifurcation of the liability and damages portions of the trial, arguing that it will be unduly prejudiced if the liability and damages issues are tried together. Ayers argues that bifurcation is appropriate only where the liability portion of the case is weak and the court fears that the jury may be unduly influenced by the plaintiff's extensive damages.

Federal Rule of Civil Procedure 42(b) governs the separation of issues for trial:

(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim or of any separate issue or any number of claims....

Fed.R.Civ.P. 42(b). "Rule 42(b) should be resorted to only in the exercise of informed discretion when the court believes that separation will achieve the purposes of the rule." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2388, at 474 (1995) (citing Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir.1976)). Ayers appropriately points out that a number of the holdings of the cases on which Wal-Mart relies¹ turn on the weakness of the liability portion of the plaintiff's case. For example, in Miller v. N.J. Transit Authority Rail Operations, 160 F.R.D. 37 (D.N.J.1995), the court ordered bifurcation where all that was left of plaintiff's body was his head, torso, and one limb when he electrocuted himself after a drinking party with his fraternity brothers on defendant's electric train. Id. As such, the court found the issue of defendant's liability to be weak and that the plaintiff's grossly disfigured body could prejudice the jury's ability to assess the liability issue fairly. As Ayers has pointed out, most of the cases on which Wal-Mart relies are distinguishable from the instant case for a variety of reasons: pre-1991 Civil Rights Act cases; § 1983 actions against public employers where respondeat superior may not apply; intellectual property cases; and multi-district or class action litigation.

The Court does not find that in this case, the damages to Ayers will overwhelm the jury's ability to determine Wal-Mart's liability nor is the liability issue clearly so tenuous that it is likely the parties will not reach the issue of damages. Wal-Mart's Motion for Separation of Issues is denied.

II. Wal-Mart's Motion for Partial Summary Judgment (Doc. 120)

Wal-Mart moves for partial summary judgment on several issues: 1) violation of FCRA, § 760 et seq.; 2) intentional infliction of emotional distress; 3) respondeat superior liability for intentional torts of employee; 4) negligent retention; and 5) claim for punitive damages.

Summary judgment is warranted where it appears from the pleadings, depositions, admissions, and affidavits that there is no "genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court considers the evidence and all inferences drawn therefrom in the light most favorable to the non-moving party. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir.1993).

1. Florida Civil Rights Act (Count II)

Wal-Mart moves for summary judgment on the FCRA claim, arguing that Ayers failed to meet the administrative requirements of the statute before filing suit. In opposing summary judgment, Ayers contends that the FCRA's filing requirements are not jurisdictional prerequisites, but are "conditions precedent," which are subject to equitable modification.

Two sections of the Florida Civil Rights Act provide the basis for a plaintiff to pursue a claim in court. Section 760.11(4) provides that, where the commission determines that there is reasonable cause to believe that discrimination has occurred, the aggrieved person may "bring a civil action ... in a court of competent jurisdiction" or "request an administrative hearing." Fla.Stat.Ann. § 760.11(4). If the commission fails to "determine whether there is reasonable cause on any complaint" within 180 days of the filing of the complaint, the complainant may proceed as if the commission had determined there was reasonable cause. Fla.Stat.Ann. § 760.11(8).

In other words, if there is a cause determination, the plaintiff may bring a civil action or request an administrative hearing and if the commission finds that there is no reasonable cause, it must dismiss the complaint and the complainant has thirty-five days to request an administrative hearing to determine whether a violation occurred. In the instant case, Ayers did not receive a cause determination, nor seek an administrative hearing. At issue is whether Ayers properly proceeded under § 760.11(8), which allows her to file suit after 180 days if the commission has not yet made a determination whether reasonable cause exists. Ayers does not dispute that she waited only 117 days to file suit, rather than the 180 days required under the statute.

Wal-Mart argues that the failure to wait the entire 180 before filing bars Ayers' claim under the FCRA. Ayers argues that, by amending her Complaint (on September 18, 1995) after the 180 day period elapsed (on April 13, 1995), Wal-Mart's arguments are invalid.

There is no Florida state court or federal case interpreting § 760.11(4) that is directly on point. Ayers asks the Court to follow the Eleventh Circuit decision regarding the timeliness of an EEOC charge in Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995), which held that plaintiff's amendment to her complaint, one week after she received a right to sue letter, cured this defect in the complaint. Id. However, Cross is distinguishable from the instant case because the procedural requirements of the FCRA are very different from those of Title VII. Although both Title VII² and the FCRA³ provide for dismissal of the complaint if the respective commissions determine there is "not reasonable cause to believe" that the charge is true or that a violation has occurred, the statutes differ significantly in the plaintiff's recourse after dismissal.

Under the FCRA, the complainant's only recourse once her complaint is dismissed is to request an administrative hearing. § 760.11(7) (within 35 days). If the complainant does not request an administrative hearing within that time, the claim will be barred under the FCRA. Id. In contrast, if the EEOC dismisses the charge, the complainant is not required to pursue an administrative hearing and may file suit within ninety days of notice of the dismissal. 42 U.S.C. § 2000e-5.⁴ The very different result under the two statutes is that, under Title VII, the complainant may file suit regardless of whether his or her complaint is dismissed or is unresolved after 180 days;⁵ under FCRA, the complainant may only file suit if the complaint is unresolved after 180 days, and not if the complaint is dismissed.⁶ As Judge Adams of the Middle District of Florida has already determined in the case of Mulkey v. Equifax Card Services, Inc., Case No. 94-1080-Civ-T-25E (M.D.Fla. Jan. 9, 1996),⁷ a complainant's failure to pursue administrative remedies after a "no reasonable cause" dismissal bars any court action for relief.

In this case, Ayers prematurely filed her FCRA claim only 117 days after filing her complaint with the Commission, and well before the 180 day period had elapsed. To allow Ayers to proceed on the FCRA claim, without having waited the required 180 period, would permit her to successfully circumvent the possibility of a dismissal and being locked into the sole remedy of an administrative hearing. By Ayers' own request, the investigation of her complaint was terminated prior to the expiration of the 180 day period.⁸ The Court will not allow Ayers, by halting her investigation and filing suit before 180 days expired, to circumvent the carefully-crafted procedural requirements set forth under the FCRA. Wal-Mart's Motion for Summary Judgment as to Count II is GRANTED.

2. Intentional Infliction of Emotional Distress (Count III)

Ayers argues that Wal-Mart is liable for intentional infliction of emotional distress because it failed to stop...