Dixon v. Denny's Inc.

• Decision Date: 29 July 1996
• Docket Number: No. 2:95cv901.,2:95cv901.
• Citation: 957 F.Supp. 792
• Parties: Debra L. DIXON, Plaintiff, v. DENNY'S INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

957 F.Supp. 792

Debra L. DIXON, Plaintiff, v. DENNY'S INC., Defendant.

No. 2:95cv901.

United States District Court, E.D. Virginia, Norfolk Division.

July 29, 1996.

COPYRIGHT MATERIAL OMITTED

Lisa Palmer O'Donnell, Shuttleworth, Ruloff & Giordano, Virginia Beach, VA, for plaintiff.

Abram William VanderMeer, Jr., Clark & Stant, P.C., Virginia Beach, VA, Timothy Walker Dorsey, Clark & Stant, P.C., Virginia Beach, VA, for defendant.

OPINION AND ORDER

MacKENZIE, District Judge.

This matter is before the Court for the resolution of the Defendant's motion for partial summary judgment. Because the Court believes that counts two, three and four of the complaint fail to state a claim under Virginia law, the motion is GRANTED.

I.

The facts of this dispute are fairly simple and, when viewed in the light most favorable to the non-moving party, can be summarized as follows. Debra Dixon ("Dixon" or "the Plaintiff") was employed by Denny's, Inc. ("Denny's") as a waitress at its Virginia Beach location from December 13, 1993 until she resigned on September 28, 1994. Marvin Pierce ("Pierce") was employed by the Virginia Beach Denny's as a bus boy during that time frame. On numerous occasions during Dixon's tenure at Denny's, Pierce made unwanted physical contact with her and directed sexual remarks, innuendoes, and terms of endearment toward her and other female employees. On one occasion, when Pierce encountered Dixon in the storage room of the restaurant, he even threatened to rape her. At some point during her employment at Denny's, Dixon learned that Pierce had told other employees that he was in Virginia Beach because he raped a woman in Richmond. Dixon and at least one other employee complained about Pierce's behavior to both their supervisor and the manager of the restaurant. Nonetheless, management failed to remedy the situation, and Dixon resigned on September 28, 1994.

On September 7, 1995, Dixon filed a four-count complaint against Denny's and Pierce, alleging that Pierce's behavior created a hostile work environment which forced her to resign. Specifically, the complaint alleges the following causes of action: 1) a federal claim for sexual harassment and hostile work environment, in violation of Title VII (COUNT ONE); 2) a pendent claim for intentional infliction of emotional distress (COUNT TWO); 3) a pendent claim for negligent retention of an employee (COUNT THREE); and 4) a pendent claim for constructive discharge (COUNT FOUR). The complaint seeks: 1) a permanent injunction to prevent Denny's from engaging in any employment practice which creates a hostile work environment; 2) back-pay plus interest; 3) front-pay; 4) compensatory damages of $350,000; 5) punitive damages of $350,000; and 6) reasonable attorney's fees and costs.

On February 22, 1996, Dixon dismissed Pierce from the lawsuit without prejudice because she could not locate him for service of process. On July 2, 1996, Denny's filed the present motion for partial summary judgment, claiming that counts two, three and four fail to state a claim under Virginia law.

II.

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the non-moving party, determines that there exists no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990) (en banc), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). Issues of material fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The facts, and inferences to be drawn from the facts, must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, 502 U.S. 828, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). To defeat summary judgment, a non-moving party, who will bear the burden of proof at trial on a dispositive issue, must go beyond his or her pleadings with affidavits, depositions, interrogatories, or other admissible evidence to show specific facts that amount to a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1985).

III.

The Court will address Denny's motion for summary judgment as to counts two, three and four seriatim.

A.

With respect to count two, the pendent claim for intentional infliction of emotional distress, Denny's argues that it cannot be held vicariously liable for Pierce's alleged conduct because it was not within the scope of Pierce's employment. Denny's also argues that Dixon has failed to allege facts which demonstrate that Denny's acts were either intentional or outrageous or that Dixon suffered severe emotional distress, as required under Virginia's common law tort of intentional infliction of emotional distress.

Dixon answers that Pierce's alleged tortious acts were within the scope of his employment because he committed them while performing his duties as a busboy at Denny's. She also claims that Denny's failure to address complaints about Pierce's behavior demonstrates that Denny's can be held primarily liable for intending to cause severe emotional distress to Dixon, that Pierce's conduct was outrageous because he threatened to rape Dixon, and that Dixon did in fact suffer severe emotional distress under Virginia law because she was fearful of Pierce, she felt that Pierce's behavior had degraded her, and because she suffered headaches and an upset stomach. See Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment at 3; Memorandum in Support of Defendant's Motion for Summary Judgment at 10-11.

Under Virginia's interpretation of the doctrine of respondeat superior, in order to hold an employer liable for the acts of one of its employees, a plaintiff must establish: 1) that the tortfeasor was an agent of the employer; and 2) that the tortfeasor was acting within the scope of his employment at the time of the tortious act. See, e.g., Sayles v. Piccadilly Cafeterias, Inc., 242 Va. 328, 410 S.E.2d 632, 634 (1991). Furthermore, an act is deemed to be within the scope of employment if: 1) it is something fairly and naturally incident to the business; and 2) it is done while the servant was engaged upon the master's business and is done, although mistakenly or ill-advisedly, with a view to further the master's interest, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business. See id.; Jamison v. United States, 794 F.Supp. 587, 589 (W.D.Va. 1992), rev'd on other grounds, 14 F.3d 222 (4th Cir.1994).

The Court concludes that Pierce's acts were not within the scope of his employment. Pierce's harassment of Dixon cannot reasonably be construed to have been something fairly and naturally incident to his duties as a bus boy for Denny's. Moreover, Pierce's behavior toward Dixon cannot reasonably be viewed to have been done with a view to further Denny's interests, nor can it be viewed to have been done out of an impulse or emotion which naturally grew out of or was incident to his duties as a bus boy. Therefore, Pierce was not acting within the scope of his employment when he committed the allegedly tortious acts, and Denny's cannot be held vicariously liable for Pierce's conduct.

This conclusion does not end the present inquiry, however, for the Court must also determine whether Denny's can be primarily liable for intentional infliction of emotional distress because of its alleged failure to put an end to Pierce's tortious conduct despite receiving notice of it from Dixon and her fellow employees.

To establish an intentional infliction of emotional distress claim under Virginia law, a plaintiff must allege facts which demonstrate: 1) intentional or reckless conduct by the defendant; 2) of an outrageous and intolerable nature; 3) which caused; 4) severe emotional distress to the plaintiff. See Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974). Because injury to the mind or emotions can be easily feigned, intentional infliction of emotional distress is "not favored" under the law of Virginia. See Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412, 415 (1989). The first element is satisfied where the defendant had the specific purpose of inflicting emotional distress or where the specific conduct was intended and the actor knew or should have known that emotional distress would likely result. See Womack, 210 S.E.2d at 148. The second element is satisfied if the conduct "offends against the generally accepted standards of decency and morality [and] is aimed at limiting frivolous suits and avoiding litigation where only bad manners and mere hurt feelings are involved." Id. The third element requires a causal connection between the defendant's conduct and the emotional distress. See id.

Russo v. White, 241 Va. 23, 400 S.E.2d 160 (1990), is instructive with respect to the fourth element of the present claim. In that case, a single parent sued an acquaintance with whom she had been on one date, alleging that he made over 340 "hang-up" phone calls to her residence over nine (9) months. See id. 400 S.E.2d at 161. She alleged severe emotional distress in the form of nervousness, sleeplessness, stress and its physical symptoms, withdrawal and lack of concentration. See id. at 161-62. The Virginia Supreme Court sustained the demurrer. See id. at 163. The Court concluded that the lack of any verifiable evidence of severe emotional distress precluded the plaintiff's suit: "There is no claim, for example, that she had any objective physical injury...