Opinion
Civil No. 2:98CV175
June 5, 2000
David C. Pishko, Elliot, Pishko, Gelbin Morgan, P.A., Winston-Salem, NC, J. Griffin Morgan, Elliott, Pishko, Gelbin Morgan, Winston-Salem, NC, for plaintiffs.
Philip M. Van Hoy, Stephen J. Dunn, Van Hoy, Reutlinger, Taylor, Charlotte, NC, for Indian Head Industries, Inc., MGM Brakes, defendants.
Robert B. Long, Jr., Kimberly A. Lyda, Hartsell White, Concord, NC, for Franklin Barnett, defendant.
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the Plaintiffs' and Defendants' timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the Defendants' motions for summary judgment to the Magistrate Judge for a recommendation as to disposition. Having conducted a de novo review to those portions of the recommendation to which specific objections were filed, the recommendation is adopted, 28 U.S.C. § 636(b); Fed.R.Civ.P. 72, subject to the following exception: with respect to the fourth cause of action, a common law claim for wrongful discharge, the Court disagrees with the Magistrate Judge and finds that claim survives summary judgment as well.
I. STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue of material fact and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the nonmoving parties, here the Plaintiffs. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Thus, the Defendants as the moving parties have the initial burden to show a lack of evidence to support Plaintiffs' case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If this showing is made, the burden then shifts to the Plaintiffs who must convince the Court that a triable issue does exist. Id. Such an issue will be shown "if the evidence is such that a reasonable jury could return a verdict for the [Plaintiffs]." Id. A "mere scintilla of evidence" is not sufficient to defeat summary judgment. Id. Moreover, i considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the Plaintiffs, as the nonmoving parties. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
II. PROCEDURAL HISTORY
Plaintiffs, who are all past or current employees of Defendant MGM Brakes (MGM), brought suit alleging violations of 42 U.S.C. § 2000e, et. seq. Their complaint alleges seven claims: hostile work environment, retaliation, constructive discharge, wrongful discharge in violation of public policy, intentional and negligent infliction of emotional distress, and negligent hiring and retention. Defendants MGM and Indian Head Industries, Inc. (Indian Head), which owns MGM, moved for summary judgment, attacking each cause of action. Defendant Barnett also moved for summary judgment, claiming Plaintiffs could not establish causes of action against him individually for infliction of emotional distress and negligent hiring.
III. FINDINGS OF FACT
Defendants MGM and Indian Head contend the Plaintiffs are limited to allegations of conduct which occurred during the 180-day period prior to their filing of complaints with the Equal Employment Opportunity Commission (EEOC). Plaintiffs Cox and Ledford filed charges on January 10, 1996, on behalf of themselves and the other female employees of MGM; Plaintiff Stalcup filed charges on March 19, 1996; Plaintiffs Hogsed and Dalrymple followed suit August 21, 1996; and, on May 21, 1997, Plaintiffs Hogsed and Dalrymple filed additional charges. If a Plaintiff is able to show an alleged discriminatory event during that 180-day period, then she may argue that events occurring prior to that time were part of a continuing violation; and, thus may be considered. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 n. 2 (4th Cir. 2000). Thus, in considering the facts, these time periods will be considered.
Plaintiff Cox testified that a co-worker, Tommy Byers, told her he had an erection and grabbed her to force her hand on his penis. Exhibit 14, Deposition of Yolanda Cox, contained in Plaintiffs' Appendix of Deposition Excerpts Submitted in Opposition to Defendants' Motion for Summary Judgment, filed April 24, 2000, at 24 ["Plaintiffs' Appendix of Excerpts"]. The Plaintiffs also served answers to the Defendants' interrogatories in which this event is alleged to have occurred in July 1995. Exhibit B, attached to Defendants' Brief in Support of Motion for Summary Judgment, filed April 4, 2000. During that same month, Byers asked Cox to meet him outside during their break in order to have sex, although the language allegedly used was more explicit. Id.; Cox Deposition, at 29. On July 17, 1995, Cox's birthday, Cox asked her supervisor, Gerald Chastain, to escort her to her car because in the past, female co-workers had been "hosed down" on their birthdays by male co-workers. Cox Deposition, at 65-66. When she got to her car, co-worker Darrell Sudderth picked her up, threw her over his shoulder and took her over next to a building where he laid her down on the road. Id. She was held down by two co-workers while a third sprayed her with water from a hose. Id., at 67. Chastain witnessed the incident but laughed as it was happening. Id. Cox's clothing was soaked, making her undergarments visible. Id., at 124. Also during July 1995, co-worker Ralph Carter grabbed under the Plaintiff's buttocks when she was reaching for equipment from a shelf. Id., at 68. In October 1995, Cox and Plaintiff Ora Mae Ledford were walking down an aisle a the end of their work shift when co-worker John Horton yelled, "Ora Mae, Yolanda, go home and dream about big foot." Id., at 72. Horton had taken the wrapper off of a pizza box which he then rolled up and placed at his penis to simulate a large penis. Id., at 72-73.
Ora Mae Ledford also testified to incidents of sexual harassment during the time period a issue. On November 10, 1995, Ledford was leaving work around midnight when Darryl Sudderth, who had been hiding and waiting for her, grabbed her from behind and threw her onto his shoulder. Exhibit 13, Deposition of Ora Mae Ledford, contained in Plaintiffs' Appendix of Excerpts, at 9. Eddie Hayes tied up her feet and about that time John Horton drove up in a truck and yelled, "Throw her in here, we'll get her whether she's willing or not." Id. When Ledford threatened the men, Sudderth carried her across the parking lot and threw her on the top of her car. Id. She untied her feet, got in her car and left. Id. Ledford resigned the next day. Id. In the late summer of 1995, Defendant Barnett told Ledford that she had a phone call in his office. Id., at 137-41. After Ledford completed the telephone call, Barnett began unzipping his pants and asked her to look at his penis, saying, "Just look at it one time." Id. In the fall of 1995, John Horton, who was a supervisor in quality control, saw Ledford coming back from lunch with a male co-worker. Id., at 143. He yelled loudly that he wanted to smell the man's finger. Id. Later, Horton accused Ledford of having sex with Barnett, although again the language used was sexually explicit. Id., at 145. On another occasion that fall, Defendant Barnett locked Ledford in his office and asked to have sex with her. Id., at 148-52. In November 1995, Ledford was using the pay phone in the cafeteria when Brian White came up behind her, grabbed her hand and put it on his erect penis. Id., at 159.
In the fall of 1995, Larry Dockery repeatedly asked Plaintiff Phyllis Stalcup, who was married, to date him. Exhibit 15, Deposition of Phyllis Stalcup, contained in Plaintiffs' Appendix of Excerpts, at 103. He made other lewd comments about her body and her husband's inability to please her. Id. On another occasion that fall, a co-worker set a cup of coffee at Ledford's work station and said that Joe Barnett wanted to see her breasts in exchange for the coffee. Id., at 107. In November 1995, someone posted a sexually explicit cartoon at the time clock and wrote Stalcup's name on it. Id., at 112-13.
In July or August of 1995, Cecil Lunsford, who was a supervisor, tried to hug Plaintiff Janine Dalrymple. Exhibit B, Answers to Interrogatories, attached to Defendants' Brief. I the spring of 1996, Larry Dockery repeatedly tried to hug Dalrymple. Exhibit 17, Deposition of Janine Dalrymple, contained in Plaintiffs' Appendix of Excerpts, at 167. Around that same time, another co-worker grabbed her leg. Id., at 178. Other incidents occurred throughout 1996 and 1997.
In the summer of 1995, a co-worker reported to Plaintiff Marie Hogsed that someone had drawn a sexually explicit cartoon of her with a man on the wall of the men's room. Exhibit 19, Deposition of Marie Hogsed, contained in Plaintiffs' Appendix of Excerpts, at 43. Also in 1995, Howard Johnson pinned Hogsed to a table with his forklift for about 3 or 4 minutes, laughing at her when she screamed for him to back up the forklift. Id., at 81-82. Male co-workers frequently "howled" at Hogsed when she walked through an area. Id., at 94. As with the other Plaintiffs, such incidents continued in 1996 and 1997.
William Boyd Phillips, an employee at MGM during this time, has averred that until 1996 or 1997, "it was an everyday occurrence for male employees to proposition female employees for sex. During that period it was also common for male employees to talk of things of a sexual nature to female employees." Exhibit 3, Affidavit of William Boyd Phillips, contained in Plaintiffs' Appendix of Affidavits submitted in Opposition to Defendants' Motion for Summary Judgment, filed April 24, 2000, at ¶ 4 ["Plaintiffs' Appendix of Affidavits"]. He also acknowledged the cartoon using Hogsed's name. Id., at ¶ 6. Attached to his affidavit are copies of numerous sexually explicit cartoons, some of which were found in his supervisor's office. Exhibits A-H, attached to Phillips Affidavit.
All of the above incidents fell within the statutory time frame of 180 days prior to the filing of an EEOC complaint. Thus, in order to ascertain whether these incidents were "continuing violations," a comparison to incidents outside that time frame must be made.
Phyllis Stalcup averred that in 1994, a co-worker asked if she was wearing underwear and invited her to a motel. Exhibit 9, Affidavit of Phyllis Stalcup, contained in Plaintiffs' Appendix of Affidavits, at ¶ 4. Cecil Lunsford, a supervisor, stuck his hand down the front of her overalls and touched her near her crotch. Id. David Roach told her he was old but would try to obtain an erection for her. Id. He described having sex with a woman on his desk at work. Id., at ¶ 5; Stalcup Deposition, at 78. On "dozens and dozens of occasions, he'd ask me to go home and have sex with him." Id., at 79. Moreover, Jimmy Wilson and Cecil Lunsford, MGM supervisors, overheard his comments but nothing was done. Id., at 80. In fact, Wilson, who was married, repeatedly asked Stalcup for dates. Id., at 82. And, Lunsford constantly tried to touch her breasts and groin area. Id., at 102. Throughout her employment at MGM, cartoons showing explicit sex scenes were distributed. Id., at 23. In fact, during her job interview, Defendant Barnett rubbed her arm. Id., at 73. Male employees constantly talked about sex, asked her out and commented on her body. Id., at 77.
In the early part of 1995, Ralph Carter, on numerous occasions, stared at Yolanda Cox, whistled at her and brushed up against her. Cox Deposition, at 21-22, 55. When she reported this to her supervisor, he laughed at her. Id., at 56. In June 1995, Harold Rogers, a drunk co-worker, chased Cox up and down the aisles of the plant and tried to force her to dance with him. Id., at 61. When she complained to her supervisor, he laughed and said, "Well, what are you doing to the little men in the back?" Id., at 63.
In June 1995, Rogers, again drunk on the job, grabbed Ora Mae Ledford by the wrists and told her he loved her. Ledford Deposition, at 80-81. He held her so tightly that she had fingerprints on her arms. Id. When she got away from him, she hid in the bathroom for 30 minutes until he left. Id. In April 1994, Larry Dockery told Ledford the male co-workers had a $100 bet on who would be the first man at work to sleep with her. Id., at 99. In July 1994, Scott Rogers grabbed Ledford's crotch. Id., at 104-05. When she reported this to her supervisor, his response was, "That's just the way it is." Id. She then complained to Defendant Barnett who laughed. Id. A male co-worker also spoke to Barnett about it and reported that Barnett's attitude was that if Ledford did not like the situation, she could find another job. Id., at 105. That same summer, Larry Dockery came to work drunk, shoved Ledford against a table and asked why she would not go out with him. Id., at 108-09. In early fall of 1994, Defendant Barnett asked Ledford to come to his office at which point he grabbed her breasts and tried to kiss her. Id., at 111-12.
In 1993, male co-workers rubbed their bodies against Janine Dalrymple every time the walked past her. Dalrymple Deposition, at 36-37. When she complained to her supervisor, he told her it was her problem. Id., at 38. One of those employees told her that if she would flirt, things would get better. Dockery also asked her to go to a motel with him during that year. Id., at 47.
IV. DISCUSSION A. The "continuing violation" issue.
Considering each Plaintiff individually, there is no question that during the 180-day period prior to the EEOC filings each of the Plaintiffs have alleged incidents of sexual harassment. The issue is whether these incidents constitute a continuing violation. The Fourth Circuit has recently acknowledged that it "has never delineated what constitutes a `continuing violation.'" Emmert v. Runyon, 178 F.3d 1283 (table), 1999 WL 253632 at **4 (4 th Cir. 1999). However, the Circuit did acknowledge that other circuits, including the Fifth Circuit, have developed tests for determining whether a claimant has suffered from a continuing violation. Id. Therefore, it must be determined whether the alleged conduct constitutes "a series of related acts, one or more of which falls within the limitations period." Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir 1997), cert. denied, 525 U.S. 1067 (1999).
Although there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. [S]he must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action. This inquiry may involve several factors, including the following three:
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision? The third factor . . . is degree of permanence. . . .
Importantly, however, the particular context of individual employment situations requires a fact-specific inquiry that cannot easily be reduced to a formula.
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) (quoting Berry v. Bd. of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)) (other citations omitted).
Viewing the facts in the light most favorable to the Plaintiffs, the rampant sexual harassment, amounting to assaults on more than one occasion, which occurred at MGM involved the same type of discrimination on a recurring basis. Contrary to the Defendants' contention, these were not isolated events involving different male co-workers. Time after time, year after year, the same men, allegedly including the plant manager and supervisors, harassed these women. Two of the men frequently came to work intoxicated. Sudderth "hosed down" Cox and threw Ledford over his shoulder while another co-worker tied her feet. Barnett allegedly assaulted and harassed three of the four Plaintiffs, as did Larry Dockery. Cecil Lunsford, another supervisor, harassed two of the four. These were not isolated occurrences but recurring events by men who were neither in control of their behavior nor disciplined for their conduct. "The ongoing [sexual] harassment suffered by [the Plaintiffs] was all of the same sort, it was continual, and it was a permanent condition of [their] workplace. And the pattern of harassment was not the kind of violation that — like a discrete instance of discriminatory conduct — would put a worker on notice that [her] rights had been violated." Huckabay, 142 F.3d at 239. There is every indication from the evidence forecast by the Plaintiffs that they knew complaints would lead to no corrective action; and indeed, could make matters worse. Some of the harassers were supervisors; other supervisors told the Plaintiffs nothing could be or would be done. Clearly, they "[were] not aware that [they] had an avenue to pursue a grievance for said conduct until sometime within the 180 days immediately preceding the filing of [their] charge[s] with the EEOC." Barber v. City of Conover, 73 F. Supp.2d 576, 583 (W.D.N.C. 1999). The undersigned therefore concludes that the conduct within the statutory time period was a continuing violation.
The Court rejects the Defendants' argument that conduct having no sexual connotation cannot constitute harassment sufficient to create a hostile environment. The incidents involving the Plaintiffs occurred due to their gender, whether or not sex was mentioned. "A work environment consumed by remarks that intimidate, ridicule, and maliciously demean the status of women can create an environment that is as hostile as an environment that contains unwanted sexual advances." Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000).
B. Plaintiffs' claims for wrongful discharge.
Plaintiffs' complaint alleges Title VII claims for sexual discrimination by means of hostile work environment, retaliatory conduct and constructive discharge. They also allege a common law claim for wrongful discharge in violation of North Carolina's Equal Employment Practices Act (EEPA), N.C. Gen. Stat. § 143-422.2. Citing Smith v. First Union, 202 F.3d 234 (4th Cir. 2000), the Magistrate Judge determined the Plaintiffs may not state a private cause of action for wrongful discharge under the EEPAIn Smith, the plaintiff asserted a claim for sexual harassment under the EEPA. The Circuit held:
Neither the North Carolina Supreme Court nor the North Carolina Court of Appeals has recognized a private cause of action under the NCEEPA. Instead, most courts have applied the NCEEPA only to common law wrongful discharge claims or in connection with other specific statutory remedies.
Smith, 202 F.3d at 247 (emphasis added). In the fourth claim for relief in the complaint, Plaintiffs clearly allege a common law claim for wrongful discharge in violation of state public policy as stated in the EEPA. I Hughes v. Bedsole, 48 F.3d 1376 (4th Cir. 1995), the Circuit ruled that the EEPA "does not provide for a specific statutory remedy, and we therefore analyze Hughes' claims under the North Carolina common law of wrongful discharge." Id., at 1383 n. 6. The plaintiff in Hughes alleged she had been wrongfully discharged on the basis of her sex. The Circuit thus recognized such a cause of action and the Court finds the Smith case, in which the Circuit held there is no private cause of action for sexual harassment under the EEPA, inapposite. See, e.g., Emmons v. Rose's Stores, Inc., 5 F. Supp.2d 358, 364 (E.D.N.C. 1998), aff'd, 141 F.3d 1158 (table) (4th Cir. 1998) (Plaintiff could have stated a claim for wrongful discharge in violation of EEPA based on alleged sexual discrimination); DeWitt v. Mecklenburg County, 73 F. Supp.2d 589, 604-05 (W.D.N.C. 1999); Bayles v. The Fidelity Bank, 44 F. Supp.2d 753, 759 (M.D.N.C. 1998); Bradley v. CMI Industries, 17 F. Supp.2d 491, 499 (W.D.N.C. 1998); Justice v. Saint Augustine's College, 1998 WL 303524 **9 (E.D.N.C. 1998).
The Magistrate Judge cited to the jurisdictional allegations of the complaint in concluding that Plaintiffs had not alleged a common law wrongful discharge claim. However, in their fourth claim for relief, such a claim is explicitly set forth.
Defendants argue that such a common law claim is recognized only where the plaintiff has been terminated, not constructively discharged. However, North Carolina courts have recently recognized that a plaintiff could state a claim for wrongful discharge based on constructive discharge following unwanted sexual advances, touching and harassment. Graham v. Hardee's Food Systems, Inc., 121 N.C. App. 382, 386, 465 S.E.2d 558, 561 (1996).
C. Claims of retaliation.
Plaintiffs Hogsed and Dalrymple have alleged they were retaliated against for filing EEOC complaints. The retaliation took the form of harassment from co-workers who refused to cooperate with them on various work-related tasks, who variously ridiculed them or shunned them, who poured trash on the table where one of them customarily ate, who wrote "bitch" on one of their chairs and who hid parts from them. Although Dalrymple is still employed at MGM, Hogsed was terminated in February 1998.
"A plaintiff makes out a prima facie case of retaliation by showing that she engaged in a protected activity, that she suffered an adverse employment action, and that the two were causally related." Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 413 (4th Cir. 1999), cert. dismissed, 120 S.Ct. 1005 (Feb. 7, 2000). By filing EEOC charges, both Hogsed and Dalrymple engaged in protected activity. Id., at 414. Due to the conduct of male co-workers, Hogsed was subsequently transferred to a different position against her wishes, an action which qualifies as a causally related adverse employment action. Id. Dalrymple, however, is still working at MGM. The issue, then, is whether a retaliatory hostile work environment constitutes retaliatory conduct by the employer and an adverse employment action.
In no case in this circuit have we found an adverse employment action to encompass a situation where the employer has instructed employees to ignore and spy on an employee who engaged in protected activity, without evidence that the terms, conditions, or benefits of her employment were adversely affected. . . . We note that, although the district court found that [plaintiff's supervisor] knew of and did not address [plaintiff's] employment-related complaints, the district court also found that [her] employment-related complaints were addressed, investigated and, where appropriate, corrected, by other employees of [defendant].
Munday v. Waste Management of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 522 U.S. 1116 (1998) (emphasis added). Both Hogsed and Dalrymple allege that MGM ratified their co-workers' conduct by failing to take any disciplinary measures to protect them. This, they argue, affected the conditions of their employment because it made their jobs more difficult to perform.
Plaintiffs note the deposition testimony of the Human Resources manager at the time, Michael Carlson, in which he admits that he could not ascertain the truth of their complaints about co-workers' conduct. Exhibit 3, Deposition of Michael P. Carlson, contained in Plaintiffs' Appendix of Excerpts, at 53-75. On one occasion, he spoke with Hogsed and Dalrymple and suggested they smile and try to be friendly to their co-workers. Id. When Dalrymple complained that Jeff Frady was continuing to harass her, a supervisor was assigned to investigate the matter. Id. However, when Frady claimed the comments were not directed at Dalrymple, nothing further was done. Id. Likewise, when Plaintiffs complained to their supervisor that co-workers were hiding parts from them, the supervisor simply questioned the co-workers who denied the allegations. Exhibit 5, Deposition of Jimmy Wilson, contained in Plaintiffs' Appendix of Excerpts, at 88. On two occasions after Plaintiffs filed their EEOC charges, the lock on their locker had been glued so that they could not open the locker. Phillips Affidavit, at ¶ 10. Hogsed reported these incidents to Wilson who never questioned Phillips, or any other employee, about them. Id. During employee meetings, derogatory comments were made about Hogsed in front of the supervisor who did nothing. Exhibit 7, Affidavit of Arnold A. Clark, contained in Plaintiffs' Appendix of Affidavits, at ¶ 9. Clark once helped Dalrymple put some things in her car. Id., at ¶ 14. While doing so, a co-worker swerved his truck at them as if he was going to hit them. Id. They had to lean against the car in order to avoid being hit. Id. This incident, as well, was reported to a supervisor. Id.
The record does not "demonstrate that the [defendant] took prompt remedial action reasonably calculated to end the alleged retaliatory harassment. . . ." Wilson v. Southern Nat'l Bank of North Carolina, 92 F.3d 1184 (table), 1996 WL 445088 **5 (4 th Cir. 1996). Based on the forecast of evidence, the Plaintiffs withstand summary judgment. Moreover, Hogsed claims her termination in 1998 was causally related to her EEOC charges. Because MGM failed to respond to this allegation, this claim as well survives.
Similarly, Defendants object to the Magistrate Judge's failure to recommend that the constructive discharge claims brought by Plaintiffs Cox and Ledford be dismissed. Again, based upon the forecast of evidence and applicable law, Plaintiffs withstand summary judgment. Accordingly, the Court will adopt the Magistrate Judge's recommendation and the constructive discharge claims will survive.
D. Claims of intentional and negligent infliction of emotional distress
Plaintiffs also bring claims for intentional and negligent infliction of emotional distress. Defendants contend that Plaintiffs' allegations of sexual harassment do not rise to the level of "extreme and outrageous" conduct necessary to sustain an emotional distress claim under the law of North Carolina. The Court disagrees. North Carolina courts employ the description of "extreme and outrageous" conduct set out in the Restatement (Second) of Torts. Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). Although the Court agrees with Defendants that it is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery," Defendants Indian Head Industries, Inc., and MGM Brakes' Objections to Magistrate Judge's Second Memorandum and Recommendation, at 12 (quoting Wilson v. Southern Nat'l Bank of North Carolina, 900 F. Supp. 803, 812 (W.D.N.C. 1995)), this case appears to be just such an "extremely rare"occurrence. Viewed in the light most favorable to the nonmovants, Plaintiffs have sufficiently alleged conduct which is "extreme and outrageous" under the laws of North Carolina.
Plaintiffs' claims for intentional and negligent infliction of emotional distress against Defendant Barnett in his individual capacity are discussed infra.
E. The claim against Defendant Barnett individually.
The Magistrate Judge recommended that the claim for negligent hiring and retention asserted against Barnett in his individual capacity be dismissed. He also recommended dismissal of the claims for negligent and intentional infliction of emotional distress except as to Plaintiff Ledford. Barnett objects, arguing this Court should decline to exercise supplemental jurisdiction over this state law claim because failure to do so will force him to attend a lengthy trial with counsel. He also argues that evidence against the corporate Defendant will be inadmissible against him, resulting in the possibility of confusion.
The undersigned rejects these arguments. Defendant Barnett was allegedly personally involved in a majority of the incidents reported; and he was responsible for plant management throughout the time at issue. Contrary to Defendant's position and because of his managerial role, Barnett's testimony is unlikely to be short and limited to accusations against him individually. It would be a tremendous waste of judicial resources to force Plaintiff Ledford to pursue her case against Barnett in state court when the parties are now on the eve of trial. Discovery has been completed, the issue is ready for disposition and there are no novel or complex issues of state law. Ward v. Eli Lilly Co., 173 F.3d 853 (table), 1999 WL 150768 **2 (4 th Cir. 1999); Connelly v. General Medical Corp., 880 F. Supp. 1100, 1118 (E.D.Va. 1995).
V. ORDER
IT IS, THEREFORE, ORDERED that the motion of Defendant MGM for summary judgment is hereby DENIED; and
IT IS FURTHER ORDERED that the motion of Defendant Barnett for summary judgment is hereby GRANTED in part and DENIED in part and the claim of Plaintiff Ledford against Barnett for negligent and intentional infliction of emotional distress remains for trial and the claims of the Plaintiffs against Barnett for negligent hiring and retention are hereby DISMISSED.
THIS the __________ day of June, 2000.