Ellsworth v. Pot Luck Enterprises, Inc.

• Decision Date: 05 June 2009
• Docket Number: Case No. 3:08-cv-0647.
• Citation: 624 F.Supp.2d 868
• Parties: Edward ELLSWORTH, Plaintiff, v. POT LUCK ENTERPRISES, INC., d/b/a Ashley Furniture Homestores, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

624 F.Supp.2d 868

Edward ELLSWORTH, Plaintiff, v. POT LUCK ENTERPRISES, INC., d/b/a Ashley Furniture Homestores, Defendant.

Case No. 3:08-cv-0647.

United States District Court, M.D. Tennessee, Nashville Division.

June 5, 2009.

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Mary Ann Parker, Stephen C. Crofford, Parker & Crofford, Nashville, TN, for Plaintiff.

James T. Crenshaw, Kirksey & McNamee, PLC, Brentwood, TN, W. Judd Peak, Frost, Brown & Todd, LLC, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court is the Motion for Summary Judgment filed by the defendant, Pot Luck Enterprises, Inc., d/b/a Ashley Furniture Homestores (Docket No. 17), to which the plaintiff has responded (Docket No. 21), and the defendant has replied (Docket No. 23). For the reasons discussed herein, the defendant's motion will be granted in part and denied in part.

BACKGROUND

Edward Ellsworth, an African-American man and the plaintiff in this matter, was employed as a furniture sales associate for the defendant, Pot Luck Enterprises, Inc., d/b/a Ashley Furniture Homestores ("Ashley Furniture").¹ Ellsworth began working at Ashley Furniture in April 2007 and resigned, approximately six months later in October 2007. As a sales associate, Ellsworth's primary duty was to assist customers on the sales room floor. At times, multiple sales associates would work together on the floor, and all associates would work together on the floor on weekends. Ashley Furniture compensated sales associates based on a Master Commission Agreement and a Furniture Protection Bonus Plan, which guaranteed that associates would receive minimum wage as well as certain commissions and bonuses and described the limitations on those commissions and bonuses.

Ellsworth contends that, during his employment with Ashley Furniture, he repeatedly was subject to sexual and racial harassment. Ellsworth was initially propositioned for sex by certain of his co-workers approximately six weeks after he began his employment at Ashley Furniture and continued to be propositioned until he resigned. The propositions came from three of his co-workers, Michael Cressman, Charles Ftacek, and Greg Napper, all of whom are openly homosexual and were engaged in sexual relationships with each other. Ellsworth testified that, over a period of four and one-half months, the three men propositioned him six to eight times. At some point, he informed them that he was not homosexual and was not interested in any sexual encounter. According to Ellsworth, after he rejected their propositions, the men continued propositioning him, but did so in a more open, joking manner.

Also after Ellsworth rejected the propositions, Cressman, Ftacek, and Napper began making crude sexual comments about Ellsworth. While the three men made sexual comments, jokes, and innuendos among themselves on a daily basis, they began making comments to or about Ellsworth three to four times per week. According to Ellsworth, typically, the commentary would begin with a sexually-focused conversation among the three men and then expand to encompass talking to or about other people. The men's verbal conduct with respect to Ellsworth included explicit, racially-stereotyped speculations on the size of Ellsworth's genitalia and sexual abilities and general comments about homosexual behavior.² Ellsworth testified that the commentary and propositions continued until his resignation in October 2007.

In addition to the racial nature of some of the sexual commentary, Ellsworth states that he was also subject to racial harassment. According to Ellsworth, Ftacek used the "n-word" in a sexual context when referring to Ellsworth, Ellsworth's genitalia, or African-Americans' sexual attributes in general.³ Furthermore, Johnie Young, an African-American employee, used the "n-word" on multiple occasions in a non-sexual context because he was jealous of Ellsworth's sales success. Ellsworth testified that, in one incident, Young became upset about a certain sale and shoved Ellsworth, called him the "n-word" repeatedly, and threatened to "do all kinds of things," including beating and killing Ellsworth. According to Ellsworth, several weeks later, Young said to Ellsworth, "[n-word], I can't stand you." Young would also occasionally mutter comments, some including the "n-word," under his breath in Ellsworth's presence, and "a lot of antagonism" existed between Young and Ellsworth.

In addition to his allegations about Ftacek's and Young's use of racially offensive language, Ellsworth also alleges that Don Adcock, a store manager, referred to certain furniture as "being ghetto" and "for people in the `hood'" at a store sales meeting attended by employees and a sales manager. Ellsworth states that several employees laughed at Adcock's statements, which Ellsworth found offensive because "the general connotation for that is that it's meant for black people who have less of a socioeconomic standing." Ellsworth also testified that, at other times, he observed Adcock "laugh[ing] off" comments of a racial nature, "which kind of set the tone for that sort of behavior to be expected."

Ellsworth states that, over a period of one to three months, he complained multiple times about the sexual and racial harassment he experienced.⁴ He testified that he spoke with Robert Ross and Jim Palmer, the sales managers; Don Adcock, the store manager; Johnny Hunter, the regional manager; and Tony Gallatin and Dan Parrish, whom Ellsworth describes as the owners of the store.

With respect to the racially offensive conduct, Ellsworth reports speaking to Ross and Palmer at least twice, and to Hunter once. After Young first used the "n-word" while allegedly shoving and threatening Ellsworth, Ellsworth reported the incident to Ross. Ellsworth states, "[Ross] said he would talk to Young, because it had gotten physical, that they would certainly have to do something about that...." Ross required Young to apologize to Ellsworth, and Young did so later that week. Ellsworth reports that, when Young used the "n-word" again, he complained to both Ross and Palmer. Ellsworth testified, "I believe they talked to [Young] about it because the first incident got physical ... but I'm not sure." Ellsworth claims that he also complained to Hunter about the second incident in which Young used the "n-word." Young did not apologize again, and his muttered remarks continued.

Apart from his complaints about Young's racially offensive conduct, Ellsworth asserts that he repeatedly complained to Ashley Furniture about the propositions and sexual comments made by Cressman, Ftacek, and Napper. According to Ellsworth, he initially complained when the sexual commentary and propositions continued after he had rejected the propositions of the three men. Ellsworth states that he first complained about the sexual harassment to Ross and, then, in a separate conversation on the same day, to Palmer, both of whom said they would speak with Cressman, Ftacek, and Napper. Ellsworth is unsure if they did so but testified that, in any event, the comments continued. Ellsworth reports making a total of five or six complaints to Ross and Palmer within one or two months, and also making a complaint to Adcock. Ellsworth described one of his meetings with Palmer as "somewhat of a lengthy conversation," but stated that, otherwise, most of the conversations lasted for approximately five minutes. Ellsworth testified that, during the longer conversation, Palmer stated that Ellsworth was being targeted because of his sales success, and Palmer "reduced some things to writing" regarding the harassment that Ellsworth had experienced.

According to Ellsworth, his complaints to his managers did not stop the sexual propositions and commentary. He testified that the managers "were physically there during a lot of it and nothing took place .... they were kind of acquiescing in it." Thus, Ellsworth next approached Hunter to complain about the conduct, telling Hunter about the specific sexual comments and his previous unsuccessful complaints, and identifying Cressman, Ftacek, and Napper. Hunter told Ellsworth that, while he had heard about the complaints, he did not realize the situation was that serious and stated that he would "deal with it." Ellsworth is unsure whether Hunter spoke with anyone or took steps to "deal with" the problem. Ellsworth states that Hunter may not have done anything because "Mr. Hunter was pretty close friends with Mr. Ftacek," and the sexual commentary continued.

Next, Ellsworth claims he approached Gallatin and Parrish, the store owners. According to Ellsworth, he first complained to Gallatin about the sexual commentary generally and provided the names of the three responsible individuals. Ellsworth does not recall Gallatin's response but felt that Gallatin was not taking the allegations seriously, because he "belittled" the allegations and did not say that he would do anything about them. Ellsworth left the meeting with "the general impression that nothing would be done about it." Ellsworth states he then went directly to Parrish's office and complained about the sexual harassment. Ellsworth testified that "Parrish's response was, verbatim, I `need to go wear out some more shoe leather.'" Ellsworth interpreted Parrish's response to mean that Parrish did not care about the harassment and wanted Ellsworth to get back to work on the sales floor. After that, Ellsworth felt "[t]hey were pretty much condoning the behavior from the upper levels on down," and he resolved to leave his job.

Finally, Ellsworth alleges that, while he was employed at Ashley Furniture and after he complained about the harassing conduct he experienced, Ross withheld Ellsworth's commissions when Ellsworth made a sales error. Ellsworth alleges that this was in retaliation for his complaints. Although such withholdings are permitted by the Master Commission Agreement,...