Harrison v. Edison Bros. Apparel Stores, Inc.

• Decision Date: 07 November 1989
• Docket Number: Civ. A. No. C-87-886-WS.
• Citation: 724 F. Supp. 1185
• Parties: LaDonna HARRISON, Plaintiff, v. EDISON BROTHERS APPAREL STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of North Carolina

724 F. Supp. 1185

LaDonna HARRISON, Plaintiff, v. EDISON BROTHERS APPAREL STORES, INC., Defendant.

Civ. A. No. C-87-886-WS.

United States District Court, M.D. North Carolina, Winston-Salem Division.

November 7, 1989.

William L. Durham, Harold L. Kennedy, Jr. and Harold L. Kennedy, III, Winston-Salem, N.C., for plaintiff.

Robert S. Phifer, Charlotte, N.C., and James J. Baldwin and James M. Powell, Greensboro, N.C., for defendant.

MEMORANDUM OPINION

GORDON, Senior District Judge.

I. Statement of the Case

Plaintiff Harrison filed suit in Forsyth County Superior Court alleging that her former employer, defendant Edison Brothers Apparel, Inc., ("Edison Brothers") through its managerial employee, Melvin Wall, Jr., sexually harassed plaintiff, engaged in the non-consensual touching of her person, and discharged her from employment. The Complaint states claims for intentional infliction of emotional distress and battery against both Edison Brothers and Wall, and claims for negligence and wrongful discharge against Edison Brothers. The case was removed to federal court, and plaintiff's motion for remand was denied. Subsequently, the court, pursuant to a stipulation filed by plaintiff and Wall, entered an order dismissing with prejudice plaintiff's claims for intentional infliction of emotional distress and battery against Wall. The matter is now before the court on defendant Edison Brothers' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion is GRANTED IN PART and DENIED IN PART.

II. Facts

Plaintiff was hired by defendant Edison Brothers at its "Jeans West" store in Winston-Salem, North Carolina, on or about November 10, 1986. Plaintiff's career with defendant spanned little more than a month, ending on December 18, 1986.

During plaintiff's tenure at Jeans West, the store was managed by Melvin Wall, Jr. Plaintiff alleges that between November 22 and December 18, 1986, Wall engaged in the non-consensual touching of her person, made sexually suggestive remarks to her, and requested sex. According to plaintiff, she first reported this conduct to Edison Brothers' Regional Manager, Rick Poulos, on or about December 11, 1986, but the conduct continued unabated until her permanent departure from the store.

The events which precipitated plaintiff's departure are as follows: Plaintiff claims she entered the Jeans West store on December 18, 1986 only to find that her name had been marked out of the store's work schedule for the remainder of that week and all of the following week. Plaintiff alleges she then attempted to contact Poulos to question this action, and that Poulos declined to accept the charges on her collect telephone call, stating that he knew no one by the name of LaDonna Harrison. After this rebuff, plaintiff placed her keys in the cash register and left the store.

Thereafter, plaintiff in no manner attempted to discuss her employment circumstances with Poulos or any higher authority until her attorney contacted the president of Edison Brothers in February 1987, threatening suit.

III. Discussion

A. The Summary Judgment Standard of Fed.R.Civ.P. 56

Rule 56 of the Federal Rules of Civil Procedure provides the standard for determining this motion:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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.

A party seeking summary judgment has the "burden of showing the absence of a genuine issue as to any material fact." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). However, where the nonmoving party bears burden of proof on an issue at trial, that party must "go beyond the pleadings and by its own affidavits, or by the `depositions, answers to interrogatories and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A fact issue is genuine if it "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In this regard, the judge must review the record in the light most favorable to the nonmoving party and draw such inferences on the nonmoving party's behalf that are reasonably supported by the record. Id. at 255, 106 S.Ct. at 2513; Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).

B. Effect of Voluntary Dismissal of Wall

In her Complaint, plaintiff asserts causes of action for intentional infliction of emotional distress and battery against her former manager, Melvin Wall, Jr., and seeks to hold Edison Brothers derivatively liable for the alleged misconduct of its agent, Wall. There is no allegation of, nor any evidence suggesting, an independent, non-derivative claim for intentional infliction of emotional distress or battery against Edison Brothers.

Thus, in order to prevail on her claims for intentional infliction of emotional distress and battery against Edison Brothers, plaintiff must establish that the tortious conduct was committed by an agent of Edison Brothers and that such conduct was either (1) expressly authorized by the principal; (2) committed within the scope of the agent's employment; or (3) ratified by the principal. Brown v. Burlington Industries, Inc., 93 N.C.App. 431, 378 S.E.2d 232, 235 (1989); Hogan v. Forsyth Country Club, 79 N.C.App. 483, 340 S.E.2d 116, 121 (1986). In the present case, plaintiff proceeds on the theory that Edison Brothers knew of, and ratified, the purported intentional misconduct of Wall.

It is the position of Edison Brothers that the dismissal of the claims against Wall with prejudice, pursuant to Fed.R.Civ.P. 41(a)(2), effectively precludes any claims against Edison Brothers which derive from the conduct of Wall in his capacity as an agent of his employer. Under North Carolina law, an employer cannot be held liable for an employee's tortious conduct when the employee has been adjudicated not liable for the conduct at issue. Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21, 25 (1966); Barnes v. McGee, 21 N.C.App. 287, 204 S.E.2d 203, 205 (1974). Edison Brothers maintains that plaintiff's voluntary dismissal of Wall with prejudice amounts to an adjudication on the merits in favor of Wall, thereby preventing any derivative claim against Edison Brothers under North Carolina agency law.

Edison Brothers cites to a substantial body of law which states that a voluntary dismissal with prejudice is equivalent to an adjudication on the merits in favor of the defendant. An exemplar of this authority is Smoot v. Fox, 340 F.2d 301 (6th Cir. 1964), wherein the court held:

Dismissal of an action is a complete adjudication of the issues presented by the pleadings and is a bar to further action between the parties. An adjudication in favor of the defendants, by court or jury, can rise no higher than this.

Id. at 303 (citation omitted). See also Wainwright Securities, Inc. v. Wall Street Transcript Corp., 80 F.R.D. 103, 105 (S.D. N.Y.1978) ("Dismissal with prejudice has the effect of a final adjudication on the merits favorable to the defendant"); 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2367 (1971 & Supp. 1989).

The court is concerned, however, that none of the federal cases cited by Edison Brothers for this proposition addresses the effect of a voluntary dismissal of a claim with prejudice against an individual defendant in a suit involving multiple defendants with interdependent liability. See Brooks v. Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir.1986) (federal court can enjoin state court proceeding concerning same transaction that was subject of earlier federal case dismissed with prejudice where state court defendant not party to federal suit); Schwartz v. Folloder, 767 F.2d 125, 129 (5th Cir.1985) (dismissal with prejudice constitutes final judgment for purpose of awarding fees); Smoot, 340 F.2d at 303 (denial of motion to dismiss with prejudice an abuse of discretion); Sheridan v. Fox, 531 F.Supp. 151, 155 (E.D.Pa.1982) (dismissal with prejudice held not to prejudice defendant's wrongful use of process claim).

In this precise context, the court has found only two instances in which a federal court has rendered judgment.¹ See Citibank, N.A. v. Data Lease Financial Corp., 700 F.Supp. 1099 (S.D.Fla.1988), motion to vacate denied by 703 F.Supp. 80 (S.D.Fla. 1989); State of Maryland v. Baltimore Transit Co., 38 F.R.D. 340 (D.Md.1965). Plaintiff directs the attention of the court to the Baltimore Transit case in support of her argument that the dismissal of Wall does not preclude suit against Edison Brothers.

In Baltimore Transit, the district court held that judgment with prejudice entered in favor of defendant bus driver on plaintiff's motion to dismiss did not release defendant carrier who was sued solely on the theory of respondeat superior for the alleged negligence of its driver. In so holding, the court stated that "the words `with prejudice' are not conclusive and have significance only in the light of the circumstances under which the dismissal took place." 38 F.R.D. at 343. The circumstances which prompted the Baltimore Transit court not to give preclusive effect to the "with prejudice" language were (1) its knowledge that the court, not plaintiff, included "with prejudice" in the order sua sponte so that the case would not be reopened against defendant bus driver, who already had been subjected to two aborted trials on the issue; and (2) its awareness that plaintiff's purpose in making the motion was only to remove from consideration by the jury the issue of the liability of a young and ingratiating bus...