Canty v. Fry's Electronics Inc.

• Citation: 736 F.Supp.2d 1352
• Decision Date: 01 September 2010
• Docket Number: No. 1:09-cv-3508-WSD-LTW,1:09-cv-3508-WSD-LTW
• Parties: Ronnie L. CANTY, Plaintiff, v. FRY'S ELECTRONICS, INC.; Randy Fry, President; Todd Smith, District Manager; Shawn Vaughn, Store Manager; John McGuffin, Assistant Store Manager; and Michael Toy, Department Manager, Defendants.
• Court: U.S. District Court — Northern District of Georgia

736 F.Supp.2d 1352

Ronnie L. CANTY, Plaintiff,

v.FRY'S ELECTRONICS, INC.; Randy Fry, President; Todd Smith, District Manager; Shawn Vaughn, Store Manager; John McGuffin, Assistant Store Manager; and Michael Toy, Department Manager, Defendants.

No. 1:09-cv-3508-WSD-LTW.

United States District Court,

N.D. Georgia,

Atlanta Division.

Sept. 1, 2010.

Ronnie L. Canty, Suwanee, GA, pro se.

Teeka K. Harrison, R. Lawrence Ashe, Jr., Ashe Rafuse & Hill, Atlanta, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Magistrate Judge Linda T. Walker's Non-Final Report and Recommendation ("R & R") [38] ¹ on Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment [24] and on Plaintiff Ronnie L. Canty's("Plaintiff") Objections to the R & R [43].

I. BACKGROUND

Plaintiff, who is proceeding pro se, was formerly employed by Defendant Fry's Electronics, Inc. ("Fry's") at its Duluth, Georgia store. On December 1, 2009, Plaintiff filed this action, asserting a number of claims related to his employment and his alleged constructive termination from his job. Plaintiff asserts in his Complaint that Defendants discriminated and retaliated against him on the basis of his race and age. Plaintiff also asserts claims for constructive discharge and negligence against Defendant.

The Court briefly summarizes the key facts of this case.² In July 2007, Plaintiff, a 47 year old man, began working for Defendant as an Electronic Components Accessory Sales Associate.³ Within four months, Plaintiff was promoted to Electronic Components Accessory Sales Supervisor. In July 2009, Plaintiff was promoted to Electronic Components Sales Supervisor.

Plaintiff alleges that he was discriminated against, harassed, and treated unfairly throughout the course of his employment at Fry's. In September 2008, Plaintiff alleges that he complained to Michael Toy, his acting Department Manager, about "discriminatory practices, favoritism, and a hostile work environment." Plaintiff claims that Defendants took unspecified "overt actions" against him after he complained of inadequate staff coverage, violations of Fry's "Five Hour rule," and "racial and staffing concerns."

In March 2009, Plaintiff submitted a "Tell Randy" form complaining of harassment, favoritism and retaliation. Defendant Randy Fry ("Mr. Fry") is the president and co-founder of Fry's. Mr. Fry works from Fry's corporate offices in California, and the "Tell Randy" form allows employees to send comments, questions, or concerns to this office. Mr. Fry does not personally review these forms, but refers them to other Fry's employees for review and handling.

On April 17, 2009, Plaintiff received a letter from Sonja Jamili, Mr. Fry's executive assistant, stating that Plaintiff's "Tell Randy" form had been received and Plaintiff's complaints would be "reviewed personally by Randy and addressed accordingly." Mr. Fry claims he does not recall receiving or reviewing Plaintiff's "Tell Randy" form, and he did not personally contact Plaintiff regarding it. Mr. Fry further states that he did not speak about Plaintiff with any employees who had responsibility for the Duluth, Georgia, Fry's store. A few days after receiving Ms. Jamili's correspondence, Plaintiff was interviewed by Todd Smith, Plaintiff's District Manager, about his complaint.

In May 2009, Plaintiff was allegedly denied a promotion, which Plaintiff claims was filled by a younger, less-qualified white person. Plaintiff alleges that he was also forced to work during a time he was scheduled to be on paid leave and that Defendant Toy took unspecified "adverseactions" against him after he complained about "staffing concerns."

On August 5, 2009, Plaintiff resigned from Fry's. Plaintiff contends that he was constructively discharged based on various hostile actions taken by Defendants.

On May 19, 2009, Plaintiff allegedly completed an online questionnaire offered by the EEOC (the "Questionnaire").⁴ While Plaintiff's Questionnaire states various grievances Plaintiff has with Fry's, Plaintiff does not state in the questionnaire that he was being discriminated against based on his race or age. At the end of the form, the individual asserting a grievance may either check Box 1, indicating the individual wishes to file an EEOC charge, or Box 2, indicating the individual does not desire to file an EEOC charge. It is unclear based on the quality of the copy what box Plaintiff checked, if any.

On May 29, 2009, Plaintiff allegedly traveled to the Atlanta EEOC office and met with an investigator "with the expectation that an investigation would be conducted" regarding Defendants' conduct. Plaintiff did not receive a formal EEOC charge or a Right to Sue Letter as a result of this meeting, and Plaintiff claims that the investigator lost whatever paperwork was created at the meeting.

On July 30, 2009, Plaintiff returned to the EEOC office to follow-up with the investigator about his claims. Plaintiff alleges that he was told by the receptionist that he would need to meet with a new EEOC investigator. Plaintiff alleges that he met with an investigator who filed a charge against Defendants based on the most recent events Plaintiff discussed with that investigator. Plaintiff signed this charge which asserts that Defendants discriminated against Plaintiff on the basis of his age by denying him vacation time-off and changing his work schedule without his knowledge (the "July 30 EEOC Charge"). Plaintiff only checked the box related to age discrimination on this form, leaving boxes for discrimination based on race, color, sex, religion, national origin, retaliation, disability, and "other" unchecked.

On March 19, 2010, Defendant moved to dismiss Plaintiff's complaint, or, alternatively, for summary judgment on Plaintiff's claims. Defendants contend that: (1) Plaintiff's ADEA and Title VII claims against the individual defendants Randy Fry, Todd Smith, Shawn Vaughn, John McGuffin, and Michael Toy should be dismissed because these statutes do not provide for liability on the part of individuals; (2) Plaintiff's ADEA and Title VII claims should be dismissed against all Defendants because Plaintiff did not timely file an ADEA or Title VII discrimination charge with the EEOC, and Plaintiff's race, retaliation, promotion, and constructive discharge claims fall outside the scope of the July 30 EEOC Charge; (3) Plaintiff's constructive discharge claim, to the extent it is based on Georgia common law, fails as a matter of law; (4) Plaintiff's negligence claim should be dismissed because it fails to state a cognizable legal claim; (5) personal jurisdiction over Mr. Fry does not exist and he should be dismissed from this action; (6) Plaintiff's claims for compensatory and punitive damages pursuant to the ADEA should be dismissed because these types of damages are not available under this statute.

On January 20, 2010, the Magistrate Judge recommended Defendant's motion be granted in part and denied in part. The Magistrate Judge recommended:

1. Mr. Fry be dismissed as a co-Defendant without prejudice for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2);

2. Plaintiff's Title VII and ADEA claims against the individual Defendants should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6);

3. Summary Judgment should be granted on all of Plaintiff's Title VII race claims and a number of his ADEA claims, on the ground that Plaintiff failed to exhaust his administrative remedies;

4. Defendants' Motion should be denied without prejudice as to Plaintiff's retaliation claim(s) and that Plaintiff should be required re-plead his Complaint to clarify his claims for retaliation and violations of Section 1981;

5. Plaintiff's constructive discharge claim should be denied without prejudice, but that Plaintiff should be allowed to clarify his constructive discharge claim;

6. Plaintiff's negligence claim be dismissed without prejudice;

7. Plaintiff's claims for compensatory and punitive damages under the ADEA should be dismissed.

Plaintiff filed his objections to the Magistrate Judge's conclusions of law and recommendations, and the Court considers Plaintiff's objections below.

II. DISCUSSION

A. Standard of Review on the Magistrate Judge's R & R

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge " 'give fresh consideration to those issues to which specific objection has been made by a party.' " Jeffrey S. by Ernest S. v. State Board of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. (1976), 1976 U.S.C.C.A.N. 6162, 6163). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

B. Plaintiff's Objections and Analysis

1. Dismissal of Fry for Lack of Personal Jurisdiction

The Magistrate Judge recommended that Mr. Fry be dismissed as a defendant from this action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff objects to this determination and contends that the presence of "Ask Randy" forms in the Duluth, Georgia, Fry's store demonstrates that Mr. Fry was transacting business in this state. The Court disagrees.

Where a defendant claims lack of personal jurisdiction, a plaintiff must establish a prima...