Raines v. Shoney's, Inc.

• Decision Date: 22 November 1995
• Docket Number: No. 1:94-CV-47.,1:94-CV-47.
• Citation: 909 F. Supp. 1070
• Parties: Donna RAINES, Brenda Billingsley, Alma King, Mary Long, Vannessa Morrisson, Darlene Reed, Roberta Meyers, and Joan Williams, Plaintiffs, v. SHONEY'S, INC., a Tennessee Corporation; Jess Shearin, Individually and d/b/a Shearin Foods; City of Kimball, Tennessee; Roger Frizzell, Individually and In His Capacity as a Police Officer With the City of Kimball, TN; Clara Lapshaw, and In Her Capacity as a Police Officer With the City of Kimball, TN; and Angie Pelham, Individually and as Managing Employee of Shearin Foods and Shoney's, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

909 F. Supp. 1070

Donna RAINES, Brenda Billingsley, Alma King, Mary Long, Vannessa Morrisson, Darlene Reed, Roberta Meyers, and Joan Williams, Plaintiffs, v. SHONEY'S, INC., a Tennessee Corporation; Jess Shearin, Individually and d/b/a Shearin Foods; City of Kimball, Tennessee; Roger Frizzell, Individually and In His Capacity as a Police Officer With the City of Kimball, TN; Clara Lapshaw, and In Her Capacity as a Police Officer With the City of Kimball, TN; and Angie Pelham, Individually and as Managing Employee of Shearin Foods and Shoney's, Inc., Defendants.

No. 1:94-CV-47.

United States District Court, E.D. Tennessee.

November 22, 1995.

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Harry F. Burnette, Brown, Dobson, Burnette & Kesler, Chattanooga, TN, Martin J. Levitt, Levitt & Levitt, Chattanooga, TN, for plaintiffs Donna Raines, Brenda S. Billingsley, Alma King, Mary Long, Vanessa Morrison, Darlene Reed, Roberta Myers, and Joann Williams.

Gary M. Brown, Farris, Warfield & Kanaday, Nashville, TN, Thomas O. Helton, Baker, Donelson, Bearman & Caldwell, Chattanooga, TN, for defendant Shoney's, Inc.

John B. Curtis, Jr., Leitner, Warner, Moffitt, Williams, Dooley, Carpenter & Napo, Chattanooga, TN, for defendants Shearin Foods, and Jess Shearin.

Ronald D. Wells, Robinson, Smith & Wells, Chattanooga, TN, for defendants City of Kimball, TN, Roger Frizzell, and Clara Lapshaw, Individually and in their capacity as police officers with the City of Kimball.

Joe E. Manuel, Nelson, McMahan, Parker & Noblett, Chattanooga, TN, for defendant Angie Pelham, Individually and as a managing employee of Shearin Foods and Shoney's Inc.

MEMORANDUM

COLLIER, District Judge.

Before the Court are the Motions for Summary Judgment of Defendants Shoney's, Inc. ("Shoney's") (Court File No 27), Jess Shearin d/b/a Shearin Foods ("Shearin") (Court File No. 70), and Angie Pelham ("Pelham") (Court File No. 72).¹ Plaintiffs brought this action seeking a determination of liability and damages for alleged wrongful acts that occurred in a Shoney's restaurant in Kimball, Tennessee on or about May 23, 1993. After carefully considering Defendants' motions, Plaintiffs' responses, and the applicable law, the Court will GRANT the motions for summary judgment as to Shoney's and Shearin, but will GRANT IN PART and DENY IN PART the motion for summary judgment as to Pelham.

I. FACTS

The following summary of the salient facts is taken from the pleadings of the parties, their supporting affidavits, and submitted excerpts from deposition testimony.

The complained of actions all occurred on or about May 23, 1993. All of the Plaintiffs were employees of the Shoney's restaurant in Kimball, Tennessee. Jess Shearin owned and operated this restaurant as a franchisee (Court File No. 27, Aff. of Jess Shearin at p. 2). The restaurant employed both female and male employees and also both white and black employees. While Plaintiffs worked at the restaurant, an employee discovered approximately $600.00 missing from a cash register (Court File No. 15, p. 3). Upon the discovery of the missing cash, Pelham, manager of the Kimball restaurant, called the Kimball, Tennessee police department. Defendant Roger Frizzell ("Frizzell"), a male, and Defendant Clara Lapshaw ("Lapshaw"), a female, investigated the call.

Once the officers arrived, Pelham and the officers allegedly forced Plaintiffs to partially disrobe and submit to a search of their persons and property.² Except for one employee, all of the employees present were detained during the search.³ The officers searched each Plaintiff. Frizzell searched the male employees, and Lapshaw searched all of the female employees, except Plaintiff Donna Raines.⁴ One plaintiff underwent a polygraph test after the search. The searches did not produce the missing money on any of the employees.⁵

A. Shoney's

Shoney's is a national corporation head-quartered in Nashville, Tennessee. As of October 31, 1993, Shoney's operated 767 restaurants located in 24 states. These restaurants are chains and use the trade names of "Shoney's," "Captain D's," "Lee's Famous Recipe," "Pargo," and "Fifth Quarter." "Shoney's" is a trademark and a service mark. Shoney's also licenses its trademarks and service marks under a license or franchise agreement. The franchise restaurants using Shoney's trademarks and/or service marks are owned and operated by independent business people and are not owned nor operated by Shoney's (Court File No. 27, Aff. of F.E. McDaniel, Jr. at p. 3). Jess Shearin owned and operated the Shoney's restaurant in Kimball as a franchise restaurant.

There is no evidence Shoney's exercised any control over the day-to-day operations of the restaurant. There also is no evidence Shoney's either directed, knew of, or played any role at all in the alleged events. Nor is there evidence employees or representatives of Shoney's played any part in the events or were at the restaurant when the events took place. Shoney's involvement here stems solely from the licensing of its name to the Shearin franchise. (See generally Court File No. 28).

B. Jess Shearin

Jess Shearin, as franchisee, is the owner and operator of the Shoney's restaurant in Kimball and three other restaurants using the Shoney's name. He operates the restaurants under the name of Shearin Foods, a sole proprietorship. At the time of the search, he was not on the premises of the Kimball restaurant nor was he aware of the events as they took place (Court File No. 70, Ex. 1 at p. 1). Ron Spry, a Shearin employee, managed the restaurants on a day-to-day basis, but was not present at the restaurant at the time of the search (Id., Ex. 2 at p. 1). However, the parties dispute whether Shearin authorized the polygraph examination.⁶ Shearin's potential liability arises from his ownership of the Shoney's Restaurant in Kimball.

C. Angie Pelham

On the day of the incident, Pelham managed the Shoney's Restaurant (Court File No. 15, p. 3). The complaint alleges upon discovery of the missing money from the cash register, Pelham called the Kimball police department and detained the employees within the store. (Id. at pp. 3-4). The complaint then claims Pelham strip-searched the employees. While searching the employees, Pelham allegedly made humiliating statements regarding some of the employees' clothing. Plaintiffs also accuse Pelham of forcing them to disrobe in the view of Defendant Frizzell. After the searches of the employees and their effects, Pelham allegedly threatened Plaintiffs to prevent them from suing.

II. BACKGROUND

Plaintiffs have alleged several separate causes of action against Defendants arising out of the events at the restaurant. Since Shearin was not at the restaurant at the time of the events, Plaintiffs proceed against him based upon his position as the owner and operator of the restaurant and the employer of Pelham. Plaintiffs base their claim against Shoney's on a vicarious liability theory. According to Plaintiffs, Pelham acted as the main perpetrator. The claims against her are based upon her actions and her actions in concert with the two Kimball police officers. Some causes of action are pursuant to federal law, some are pursuant to state law, and two are mixed federal/state causes of action. Plaintiffs allege three distinct federal causes of action, four state common law causes of action, and two mixed law causes of action.

The federal causes of action are:

(1) Count VIII—42 U.S.C. § 1983

(2) Count X—42 U.S.C. § 1985, and

(3) Count XI—42 U.S.C. § 1986.⁷

The state causes of action are:

(1) Count VI—Negligent Hiring⁸

(2) Count VII—False Imprisonment

(3) Count IX—Intentional Infliction of Emotional Distress, and

(4) Count XII—Assault and Battery.

The mixed law causes of action are:

(1) Count V—Unlawful Search and Violation of Privacy under both the United States Constitution and the Tennessee Constitution, and

(2) Count IV—Sexual harassment pursuant to the Tennessee Human Rights Act.

III. STANDARD OF REVIEW

Under Fed.R.Civ.P. 56(c), the Court will render summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists, Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); Kentucky Div., Horsemen's Benev. & Prot. Assoc., Inc. v. Turfway Park Racing Assoc., Inc., 20 F.3d 1406, 1411 (6th Cir. 1994), and the Court must view the facts and all inferences drawn therefrom in the light most favorable to the nonmoving 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); Oakland Gin Co., Inc. v. Marlow, 44 F.3d 426, 429 (6th Cir. 1995); City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 250 (6th Cir.1994). Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party may not rest on its pleadings but must come forward with some significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Lansing Dairy, 39 F.3d at 1347; Horsemen's Benev., 20 F.3d at 1411. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53.

The Court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question but does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432,...