Simon v. Ernest Tubb Record Shop
Filing
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THIRD CASE MANAGEMENT ORDER. Signed by Magistrate Judge John S. Bryant on 9/14/12. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID SIMON,
Plaintiff/Counter-Defendant,
v.
ERNEST TUBB RECORD SHOPS,
INC.,
Defendant/Counter-Plaintiff
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Docket No. 3:10-CV-01082
Judge Campbell/Bryant
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THIRD CASE MANAGEMENT ORDER
Pursuant to the Court order dated February 6, 2012, the parties propose the
following Third Case Management Plan:
1.
Jurisdiction: This Court has jurisdiction of this case pursuant to 28 U.S.C.
§1331. The parties do not dispute this Court’s jurisdiction in this matter.
2.
Service of Process: Defendant and Counter-Defendant in this matter have been
served.
3.
Responsive Pleadings: Defendant filed its Answer and Counterclaim on
November 19, 2010. Plaintiff filed his Answer to the Counterclaim on November 21,
2010.
4.
Plaintiff’s Theory of the Case: Plaintiff began his employment with the
Defendant in 1998 as a clerk. Based upon a good job performance, Plaintiff was
promoted to Financial Manager and then later to General Manager. During the course of
Plaintiff’s employment, a female applied for a position with the Defendant. After this
individual called to see if her application was received she was told by the store manager,
Larry Mayhew, that “we are not hiring any women.” The policy of the owner, David
McCormick, was to have, at all times, a male and female present at the business.
After becoming aware of the Defendant’s policy, this female job applicant filed a
charge of discrimination with the Equal Employment Opportunity Commission (EEOC)
based upon sex discrimination. Mediation in this potential lawsuit was to be held at the
EEOC on August 18, 2010.
Previously, on June 10, 2010, Plaintiff had accompanied David McCormick to his
attorney’s office for a conference regarding the aforementioned female’s discrimination
charge. During the conversation between Plaintiff, David McCormick and the attorney,
Plaintiff spoke up and said “if it is revealed that the policy of this Company is to have a
man on duty at all times, this could be bad for the case.” Further, “Since it is your policy,
(referring to owner, David McCormick) we could lose this case and get into trouble.”
The Defendant’s attorney agreed stating that they could be liable from anywhere to
$50,000 to $200,000 or more. Shortly after this meeting, Plaintiff was notified by Mr.
McCormick that he should fire the store manager, Larry Mayhew. Plaintiff complied
with this directive and fired Mr. Mayhew.
Plaintiff then went on vacation and when he returned he received an e-mail stating
that he should meet with the Defendant’s accountant. At this meeting, Mr. McCormick
advised Plaintiff that “it is time for us to part company.” Plaintiff, not wanting to lose his
job and become unemployed, asked if he could step down to the position of Financial
Manager due to the fact that when he was in this position previously he had helped place
the Company in its best financial condition ever. However, Mr. McCormick still
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terminated the Plaintiff’s employment without ever giving any articulated reason for such
action.
Plaintiff would aver that the reason for his termination was the fact that he knew
of the Defendant’s policy with respect to not hiring women and the fact that he made the
statements during the aforementioned meeting that “if it is revealed that the policy of this
Company is to have a man on duty at all times, this could be bad for the case.” Further,
“Since it is your policy, (referring to owner, David McCormick) we could lose this case
and get into trouble”, referring to the policy. McCormick, his attorney, Larry Mayhew
and Plaintiff are the only ones that are aware of this policy.
Based upon the above facts, it is Plaintiff’s contention that he was fired in
retaliation for refusing to remain silent about the Defendant’s illegal policy with respect
to hiring women. The illegal policy condoned by the Defendant was a direct violation of
the Tennessee Human Rights Act, T.C.A. 4-21-101 et seq and Title VII of the Civil
Rights Act, 42 U.S.C. 2000e et seq. Further, Plaintiff would submit that his termination
was pretextual in that he had always been a good employee, had no disciplinary problems
and had an excellent work record in that he had been promoted from a clerk to a General
Manager.
The actions of the Defendant in retaliating against the Plaintiff were malicious,
intentional and in reckless disregard of Plaintiff’s rights under the law.
5.
Defendant’s Theory of the Case: Plaintiff claims that he was terminated for
refusing to remain silent about Defendant’s alleged policy of having a man on duty at all
times. His purported protected conduct consists of Plaintiff expressing a concern that the
company could have liability as a result of this alleged policy. Plaintiff admits, however,
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that he expressed his opinion only to the owner of the Company in the presence of the
attorney for the Company. While Defendant denies having such a policy, even if it did, a
discussion of potential liability with counsel is not protected activity.
In the Complaint, Plaintiff revealed information that is protected by the attorneyclient privilege. Plaintiff was a manager of the Company. He was bound by principles of
agency to keep any and all conversations with the Company’s attorney confidential. The
Company does not dispute that the conversation with the attorney occurred though it
chooses not to divulge the contents of the conversation so as to avoid further damage
associated with disclosure of the privileged conversation. Defendant submits that it never
waived the privilege attached to such conversation. By revealing the privileged
information, Plaintiff seeks to injure Defendant by weakening its position in pending
litigation.
6.
Identification of the Issues: The issues and facts in this case are in dispute at
this time.
7.
Other claims: At this time, the parties are not aware of the need for any
additional counterclaims, cross-claims, third-party claims, or joinder of parties or claims.
Should the parties become aware of the need for such pleadings, then they will inform the
other of the same.
8.
Witnesses: Plaintiff and David McCormick will likely be witnesses in this case.
At this time, the parties have not identified additional witnesses but recognize their duty
of supplementation as witnesses become known.
9.
Amendment of Pleadings: Any amendment to pleadings must be filed not later
than February 15, 2011.
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10.
Initial Disclosures and Staging of Discovery:
(a)
Initial Disclosures – Rule 26(a)(1) Initial Disclosures shall be exchanged
by February 28, 2011.
(b)
Written Discovery – All written discovery shall be completed by June 30,
2011.
(c)
Depositions – Depositions of fact witnesses shall be completed by
November 1, 2012. Depositions of expert witnesses shall be completed
by December 1, 2012.
(d)
Disclosure of Experts – Plaintiff shall make his mandatory Rule 26(a)(2)
disclosures by October 1, 2012. Defendant shall make its mandatory
Rule 26(a)(2) disclosures by November 1, 2012.
(e)
Dispositive Motions Stay – Discovery is not stayed while dispositive
motions are pending, unless ordered by the Court.
(f)
Protective Orders – A protective order will be required as the parties
anticipate that privileged information and information from non-parties’
personnel files will be exchanged during discovery.
11.
Dispositive Motions: All dispositive motions are to be filed with this Court by
September 25, 2012. Responses shall be filed with the Court by October 25, 2012.
Optional replies shall be filed with the Court by November 1, 2012. If dispositive
motions are filed early, then the response shall be due 28 days after the date the motion is
filed, and the reply shall be due 14 days after the date the response is filed. The motion
and response memoranda are limited to 25 pages, and the reply, if a reply is filed, is
limited to five pages, absent Court permission for longer pleadings.
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12.
Subsequent Case Management Conference: A subsequent telephonic case
management conference shall be scheduled at the request of a party of by the Magistrate
Judge as needed.
13.
Alternative Dispute Resolution: At this time, the parties do not believe
alternative dispute resolution is appropriate. The parties will discuss the possibility of a
settlement conference and request any such conference in September 2012.
14.
Target Trial Date: This case will be a jury trial with an estimated length of three
(3) days. The trial has been set for February 5, 2013.
It is so ORDERED:
s/ John S. Bryant
______________________________
JOHN S. BRYANT
United States Magistrate Judge
APPROVED FOR ENTRY:
s/James L. Harris
Attorney for the Plaintiff
/s/Leslie Goff Sanders
Attorney for the Defendant
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