Faircloth v. Herkel Investments, Inc.

TONY FAIRCLOTH, Plaintiff,

v.HERKEL INVESTMENTS, INC. D/B/A AARON'S SALES & LEASE, Defendant.

No. 5:10-CV-352 (CAR)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

Date: June 11, 2012

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND

PLAINTIFF'S MOTION FOR LEAVE TO OBTAIN ADDITIONAL DISCOVERY

Before the Court are Defendant Herkel Investments, Inc.'s ("Herkel") Motion for Summary Judgment [Doc. 19], Plaintiff Tony Faircloth's Motion for Leave to Obtain Additional Discovery [Doc. 33], and Notices of Objection filed by both parties [Docs. 28, 31]. In its Motion, Defendant requests summary judgment on Plaintiff's allegations of sexual harassment, sex discrimination, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq ("Title VII"). In his Motion for Leave to Obtain Additional Discovery, Plaintiff requests additional time to subpoena and depose an individual about an alleged genuine issueof material fact. After a thorough consideration of the facts and relevant law, the Court concludes that that there is no genuine issue of material fact with regard to Plaintiff's claims. Accordingly, Plaintiff's Motion for Leave to Obtain Additional Discovery [Doc. 33] is DENIED, and Defendant's Motion for Summary Judgment [Doc. 19] is GRANTED.

BACKGROUND

Defendant Herkel is a franchisee for Aaron's Rents ("Aaron's") and operates six stores throughout Georgia, including stores in Macon (the "Macon Store") and Warner Robins (the "Warner Robins Store"). These stores sell and lease residential and office furniture, consumer electronics, and home appliances. Plaintiff Faircloth was an employee of Defendant from January 2002, until his termination in October 2008. The relevant facts giving rise to the instant action occurred over the six-year span of Plaintiff's employment. These facts viewed in the light most favorable to Plaintiff are as follows.

Plaintiff's Employment with Defendant

In January 2002, Defendant hired Plaintiff as the Macon Store Customer Account Manager. As Customer Account Manager, Plaintiff was responsible for collecting the past-due rent of customers and helping the General Manager ("GM"),Sharon Thompson, operate the Macon Store. As GM, Thompson was Plaintiff's immediate supervisor.

A year and a half later in the summer of 2003, Defendant promoted Plaintiff to the position of GM for the Warner Robins Store where he was responsible for its overall business operation. Later in February 2005, Plaintiff received another promotion to part-time District Manager ("DM")¹ and was responsible for supervising five stores in Georgia. In addition, he continued to serve as GM of the Warner Robins Store ("GM/DM"). The only store that Plaintiff did not supervise as DM was the Macon Store, where Thompson remained GM. Most relevantly during that time period, Chris LaPerchia was his immediate supervisor. Plaintiff, the only individual to serve in this dual managerial position for Defendant, served as GM/DM until his termination in October 2008.

Plaintiff's First Relationship with Sharon Thompson: Summer 2002-Summer 2003

Plaintiff and Thompson had worked together before Plaintiff started as Customer Account Manager at the Macon Store. Indeed, in their prior job, Thompson had also been Plaintiff's immediate supervisor. Their professional and personalrelationship, during this previous job and for the first six months of Plaintiff's employment with Defendant, consisted of only flirtatious interactions. However, beginning in the summer of 2002, Defendant and Thompson began a consensual sexual relationship that lasted for approximately one year until the summer of 2003. After this relationship ended, Plaintiff took the promotion as GM for the Warner Robins Store partly to "get away" from Thompson. [Pl. Dep. 97:23-24].

Plaintiff's "On-Again/Off-Again" Relationship with Thompson: 2004-2007

At some point in 2004 during a company managers' meeting, Plaintiff and Thompson entered back into a sexual relationship, beginning their "sporadic" "on-again/off-again" relationship that lasted until approximately 2007. [Id. at 83:23]. Plaintiff, characterizing this sexual relationship as "friends with benefits," enjoyed the relationship so long as Thompson was not "clingy." [Id. at 84:8, 92:25]. Plaintiff, however, also testified that this second relationship was "nonconsensual." [Id. at 94:10-14]. Plaintiff explains that he was only sexually involved with Thompson "so that she didn't cause [him] as many problems at work." [Id.]. Notably, Plaintiff's sexual harassment claim is not based on the sexual acts with Thompson or the sexualrelationship itself.² Instead, Plaintiff solely asserts that the problems Thompson caused at work constituted "sexual harassment."

Problems at Work: 2003- 2008

It is undisputed that Plaintiff and Thompson did not have any issues or problems with one another until August or September 2003, after they ended their first relationship ended and after Plaintiff first promotion. It is entirely unclear exactly when, during this five-year span, Thompson allegedly caused Plaintiff problems. This is, in large part, because Plaintiff only experienced problems when he and Thompson were "off-again." Plaintiff, however, does not identify when their relationship was "off-again," or more specifically, when, during the "off-again" period, each alleged problem occurred.

Notwithstanding, Plaintiff identifies several instances of Thompson's behavior, general and specific, that form the basis of his sexual harassment claim: Thompson "constantly ... scrutinized" Plaintiff, [Id. at 95:7-8]; Thompson called LaPerchia and "instigated problems" by "complain[ing] about Plaintiff when they were not sexually involved," [Id. at 88:11]; Thompson called Plaintiff frequently, even when he was with a customer; Thompson accused Plaintiff of sleeping with other employees; Thompsonhired employees for her store that Plaintiff had previously fired from his store "to get back at [him]," [Id. at 156: 8]; and Thompson told another store manager that Plaintiff had cheated to win Store of the Month.³

Plaintiff's sex discrimination claim also includes several instances when Thompson was allegedly treated more favorably. Plaintiff claims: Thompson was allowed to take merchandise from other stores; Thompson did not have to work the same hours as Plaintiff and other managers; Thompson was given twice the amount of money per month to spend on merchandise in her store as compared to the amount of money given to other stores; Thompson could order merchandise, but Plaintiff could not; when Plaintiff was GM/DM, Thompson did not have to report to Plaintiff; Thompson did business with one of her employees in violation of company policy; and LaPerchia paid Thompson's store when her store won the corporate incentive program, "Lucky 7," was discontinued, [Doc. 24, p. 14].

Lastly, Plaintiff's retaliation claim includes Plaintiff's disputed opposition to Thompson's conduct: physical abuse of several employees, regardless of race or sex; use of the "N word" while working, [Doc. 22, p. 15]; and not giving African-Americanemployees the same number of days off as, presumably, non-African-American employees.

Sexual Harassment Complaint: Early 2008

At the beginning of 2008,⁴ sometime after Plaintiff and Thompson's second sexual relationship ended, LaPerchia called Plaintiff to schedule a meeting to resolve some of their work-related issues. Fearing that Thompson had already told LaPerchia biased details about their problems, Plaintiff immediately told LaPerchia over the phone that he wanted to file a formal sexual harassment complaint against Thompson so that he could give "[his] side." [Pl. Dep. 143:21]. This was the first and only time Plaintiff indicated that Thompson was sexually harassing him. A formal complaint, other than this statement, was neither filed nor pursued by either LaPerchia or Plaintiff. The meeting between LaPerchia, Thompson, and Plaintiff never occurred.

Reading the facts in the light most favorable to Plaintiff, Defendant Herkel's sexual harassment policies require Defendant's employees to report the incident of sexual harassment to LaPerchia or an owner. Thus, assuming that simply expressing the desire to file a complaint is sufficient under Defendant's policies, Plaintiffsufficiently lodged a sexual harassment complaint against Thompson in the beginning of 2008.

Plaintiff's Termination: October 20, 2008

On October 20, 2008, Defendant terminated Plaintiff. LaPerchia informed Plaintiff that his dual position of GM/DM was being eliminated and "may"⁵ have informed him that his declining job performance had resulted in a $30,000 loss per month for Defendant. Plaintiff immediately responded, "F**k you," [LaPerchia Dep. 54:8], and admittedly cussed out LaPerchia for "a good hour." [Pl. Dep. 115:12]. At this point, LaPerchia's decision to terminate Plaintiff was final; there was "no going back." [LaPerchia Dep. 54:9-10]. At some point towards the end of this exchange, Plaintiff asked LaPerchia if he could keep his position as GM for the Warner Robins Store, but LaPerchia told him that this position was also being eliminated. Plaintiff was the only GM/DM employee, and thus the only GM/DM employee whose position was eliminated. However, Plaintiff was not the only GM employee, but was the only employee whose GM position was eliminated.

That next day, LaPerchia completed Plaintiff's Separation Notice ("Notice of Separation" or "Notice) for the Georgia Department of Labor. LaPerchia wrote:"[Plaintiff's] position of general manager and district manager has been eliminated. His duties will be split between myself and another GM, [Thompson]. The company has been doing poorly, and we are forced to downsize. Simply put, an economic layoff." [Doc. 22-7].

After Plaintiff's Termination⁶

Later in October, Defendant hired Deago Smith to be GM of the Warner Robins Store. Also that same month, Defe...