Beckham v. Grand Affair of NC, Inc., C-C-86-499-P.

• Decision Date: 14 October 1987
• Docket Number: No. C-C-86-499-P.,C-C-86-499-P.
• Citation: 671 F. Supp. 415
• Court: U.S. District Court — Western District of North Carolina
• Parties: Patricia BECKHAM, Plaintiff, v. GRAND AFFAIR OF NORTH CAROLINA, INC., d/b/a The Cellar, and Kaleidoscope Productions, Inc., Defendants.

671 F. Supp. 415

Patricia BECKHAM, Plaintiff, v. GRAND AFFAIR OF NORTH CAROLINA, INC., d/b/a The Cellar, and Kaleidoscope Productions, Inc., Defendants.

No. C-C-86-499-P.

United States District Court, W.D. North Carolina, Charlotte Division.

October 14, 1987.

Regan A. Miller, Charlotte, N.C., for plaintiff.

Richard L. Huffman, John Hasty, Waggoner, Hamrick, Hasty, Monteith, Kratt, Cobb & McDonnell, Charlotte, N.C., for defendants.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint for failure to properly serve the Amended Complaint, and for failure to demand a relief in the Amended Complaint. Also before the Court are Defendants' Motion for summary judgment on Plaintiff's Title VII claims alleging a failure to promote Plaintiff and retaliatory actions against Plaintiff because of her sex and because of her Title VII advocacy, and Defendants' Motion to dismiss Plaintiff's civil rights claims. Finally, Defendants' Motion for Sanctions is presented. These Motions came on for hearing before this Court on September 2, 1987, all parties being represented by counsel. By Order of the Court, dated September 4, 1987, Defendant Kaleidoscope was dismissed from this case.

I. COMPLAINT

Plaintiff filed her Complaint against Defendant Grand Affair and another Defendant, Kaleidoscope Productions, Inc., on October 30, 1986. She alleged that she had been employed by Defendant Grand Affair, doing business as "The Cellar", as a bartender. She claimed that Defendant had discriminated against her because of her sex by failing to assign her to the main bar, the most profitable bar in Defendant's business. She also claimed that Defendant had fired her in retaliation for her complaints of unfair treatment, and had retaliated against her further by having her arrested when she visited the bar as a paying customer. She also asserted causes of action under 42 U.S.C. §§ 1983 and 1985, claiming that Defendant had conspired with certain officers of the Charlotte Police force in having her arrested illegally. Plaintiff also alleged that Defendants had committed several torts under state law in connection with her arrest.

On November 14, 1986, before Defendants had answered, Plaintiff filed an Amended Complaint which, in the main, merely restated her previous allegations in a more organized manner. Defendants answered on November 24, 1986, specifically stating that their answer was filed "in response to the Amended Complaint of the Plaintiff." Affidavits of service were filed on December 5, 1986 showing that Plaintiff's counsel served "a copy of the Summons and Complaint in this action" upon Defendants via certified mail on November 7, 1986.

The factual allegations of Plaintiff's Complaint are as follows: Plaintiff was employed by Defendant as a bartender and performed her duties well. Despite repeated requests, Defendant's agents refused to assign her to the main bar, which is the bar at which bartenders can bring in the most tips. Plaintiff noticed that no female bartenders were allowed to work the main bar and brought this fact to the attention of Defendant's agents. On June 20, 1985, Plaintiff found that her name had been scratched from the work schedule. She questioned Derrick Presley concerning the failure to schedule her, and was told that the failure to schedule was a mistake. Plaintiff thereafter returned to the bar on several occasions; each time she found that her name was left off of the schedule and was told that she would be scheduled for work the following week. Finally, on August 20, 1985, Plaintiff concluded that she had been fired.

On October 31, 1985 Plaintiff visited the bar as a customer to attend a Halloween party. She became uncomfortable under Mr. Pressley's scrutiny there, and decided to leave the bar. As she was leaving, she was accosted by Mr. Presley, who ordered her off the premises. When she attempted to go to her car to wait for her friend, an off-duty police officer employed as a security guard for the bar told her she would have to leave the premises. Plaintiff drove to a parking lot across from the bar, parked, and walked onto the lot of a building adjacent to the bar. Fifteen minutes later, she was approached by Mr. Presley and the security guard. At Mr. Presley's instructions, the security guard told Plaintiff that she was under arrest. Almost immediately, a police officer arrived, conferred with the security guard and Mr. Presley, and informed Plaintiff that she was under arrest. Plaintiff protested that she was not on the bar's property, but that if she went to the police car she would be on the bar's property. The policeman responded that she was already under arrest and that it didn't matter. Plaintiff was placed in the police car, handcuffed, and taken to the County Jail. She was fingerprinted and placed in a cell for about four hours until she was bailed out. The criminal trespass charge was dismissed for lack of evidence on April 11, 1986. At the trial, agents of Defendant assisted the prosecutor.

II. SERVICE OF AMENDED COMPLAINT

Defendant argues for dismissal of Plaintiff's Amended Complaint pursuant to Fed. R.Civ.P. 12(b)(5), on the ground that the Amended Complaint was not served upon Defendant as required by Fed.R.Civ.P. 4. Plaintiff filed the Amended Complaint before Defendant served a responsive pleading, and served the Amended Complaint by mailing a copy to Defendant's attorney, known to Plaintiff's counsel due to previous contacts. Defendant does not, and indeed cannot, contend that it was prejudiced as a result of the deficient service, for the only answer it filed specifically responded "to the Amended Complaint." Answer of Defendant Grand Affair, Inc. at 1.

Defendant's argument places it in a position likely to be unpalatable, for, if the Amended Complaint was never served properly, then the original Complaint, which Defendant has never answered, remains in force. See International Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir.1977) (original complaint remains in force until amended complaint is served properly). Surely Defendant does not wish the Court to hold it in default for failing to answer the original Complaint.

Defendant apparently is correct in asserting that the Amended Complaint, which incorporated a new theory of liability, should have been served on Defendant, rather than its attorney, as provided in Fed.R.Civ.P. 4. International Controls Corp., 556 F.2d at 669; 4A C. Wright & A. Miller Federal Practice and Procedure: Civil 2d § 1146 (1987). But this fact results only in the original Complaint's remaining in force. The only new claim raised by the Amended Complaint, that based on 42 U.S.C. § 1985, has since been abandoned by Plaintiff; therefore, Defendant has succeeded only in maneuvering itself into precisely the same position it would have occupied had it never raised its objection to service of the Amended Complaint.

III. FAILURE TO DEMAND RELIEF

Defendant next urges that the Amended Complaint should be dismissed for failure to demand relief therein. Since Defendant's objection to service of the Amended Complaint has rendered it of no legal effect, this ground for dismissal is moot. (It is possible to be too clever.)

IV. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

A. Sex Discrimination—Failure to Promote

Defendant raises the pseudo-statute of limitations found in § 706 of Title VII, 42 U.S.C. § 2000e-5(e) (1982). See Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (timely filing of charge is a requirement analogous to a statute of limitations). Plaintiff filed her EEOC complaint on January 27, 1986. Defendant contends that Plaintiff was fired — the last allegedly discriminatory act — on July 20, 1985. If Defendant is correct, then Plaintiff's Complaint was not filed within 180 days of the last allegedly unlawful employment practice as required by § 2000e-5(e), and Plaintiff's First Claim would be barred.

Plaintiff disputes that the firing occurred on July 20. According to Plaintiff's version, Defendant never firmly communicated to her that she was fired. Rather, after repeated attempts to determine why she was not being scheduled to work, she finally surmised that she had been terminated. Plaintiff's Deposition at 69-74. Plaintiff testified that the earliest date on which she formed the opinion that she had been fired was August 3, 1985.¹ Under Plaintiff's version of the facts, her EEOC charge was timely filed.

Plaintiff's sex discrimination charge centers on Defendant's refusal to schedule her to work at the main bar. The last date on which this continuing discriminatory action could have taken place was, of course, the last date on which Plaintiff was employed. Plaintiff's deposition testimony creates an issue of fact sufficient to preclude summary judgment. Fed.R.Civ.P. 56.

B. Retaliatory Acts

Plaintiff claims that Defendant's acts in firing her, and in having her arrested and prosecuting her for trespassing, were in retaliation for her assertion of Title VII rights. Defendant moves to dismiss so much of this cause of action as is based on the trespassing incident.² Defendant urges that Title VII applies only to employer-employee relations; therefore, since Plaintiff had already been fired when the arrest and prosecution occurred, no employer-employee relationship is implicated.

The Fourth Circuit has not yet ruled on the availability of an action for retaliation against a former employer for acts done after the employment relationship has ended. Both the Second and Tenth Circuits, however, have held that a former employee has a right of action for retaliation where the former employer governs its actions in connection with the former employee's personnel file with an eye toward the former employee's EEOC action. Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir.1978) (where employee claimed that...