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ELECTRONICALLY FILED 2/14/2012 5:45 PM CV-2012-900082.00 CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA TED HOOKS, CLERK

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA KAY DODD, Plaintiff, v. DAVID M. DAWSON, an Alabama resident; ANNISTON PATHOLOGY, MANAGEMENT SERVICES, L.L.C., an Alabama corporation; TIM JONES, an Alabama resident; REGIONAL MEDICAL CENTER ANNISTON, an Alabama corporation; FICTITIOUS DEFENDANT A; FICTITIOUS DEFENDANT B; FICTITIOUS DEFENDANT C; FICTITIOUS DEFENDANT D; FICTITIOUS DEFENDANT E, Defendants.

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Civil Action No.:

COMPLAINT COMES NOW, the Plaintiff Kay Dodd (“Plaintiff”), by and through

her

undersigned

counsel

of

record,

and

files

the

following causes of action against the named and fictitiously named Defendants: FACTUAL ALLEGATIONS 1.

Plaintiff Kay Dodd, at all times relevant and material, was and is a resident of Ashville, Alabama.

2.

Defendant David M. Dawson (“Defendant Dawson”) is an Alabama resident, and City of Anniston Council Member, whose address is 1029 Glenwood Terrace, Anniston, Alabama 36207-5850.


3.

Defendant Anniston Pathology Management Services, L.L.C. (“Defendant

Anniston

Pathology”),

is

an

Alabama

corporation whose principal place of business is 400 East 10th Street, Anniston, Alabama 36202-1163. 4.

Defendant Tim Jones (“Defendant Jones”) is an Alabama resident

and

may

be

served

at

400

East

10th

Street,

Anniston, Alabama 36202-1163. 5.

Defendant

Regional

Medical

Center

Anniston

(“Defendant

RMC”) is an Alabama corporation whose principal place of business is 400 East 10th Street, Anniston, Alabama 36202. 6.

Fictitious Defendant A (“FDA”), whose identity is unknown at this time, was, at all times relevant, acting as an employee or agent of RMC and whose actions against the Plaintiff occurred while FDA acted in his or her official capacity

as

an

agent

of

RMC.

The

true

identity

of

Fictitious Defendant A will be supplied immediately upon discovery. 7.

Fictitious Defendant B (“FDB”), whose identity is unknown at this time, was, at all times relevant, acting as an employee or agent of RMC and whose actions against the Plaintiff occurred while FDB acted in his or her official capacity

as

an

agent

of

RMC.

The

true

identity

of

Fictitious Defendant B will be supplied immediately upon discovery.

 

2


8.

Fictitious Defendant C (“FDC”), whose identity is unknown at this time, was, at all times relevant, acting as an employee or agent of RMC and whose actions against the Plaintiff occurred while FDC acted in his or her official capacity

as

an

agent

of

RMC.

The

true

identity

of

Fictitious Defendant C will be supplied immediately upon discovery. 9.

Fictitious Defendant D (“FDA”), whose identity is unknown at this time, was, at all times relevant, acting as an employee or agent of Anniston Pathology and whose actions against the Plaintiff occurred while FDD acted in his or her official capacity as an agent of Anniston Pathology. The

true

identity

of

Fictitious

Defendant

D

will

be

supplied immediately upon discovery. 10.

Fictitious Defendant E (“FDA”), whose identity is unknown at this time, was, at all times relevant, acting as an employee or agent of Anniston Pathology and whose actions against the Plaintiff occurred while FDE acted in his or her official capacity as an agent of Anniston Pathology. The

true

identity

of

Fictitious

Defendant

E

will

be

supplied immediately upon discovery. 11.

Collectively

herein,

the

bad

acts

alleged

are

attributable to each and every Defendant, whether named or fictitious, and wherefore, for the sake of simplicity,

 

3


the

Defendants

are

collectively

referred

to

as

the

“Defendants” unless otherwise specified. 12.

On 2005, the Plaintiff began employment with RMC as a Cytotechnologist.

13.

Although

employed

by

RMC,

the

Plaintiff

worked

with

employees and management of Anniston Pathology. 14.

Beginning in 2005 and continuing through late 2011, the Plaintiff

has

inhospitable

been

working

consisting,

of

among

subjected

to

environment

by

other

a

hostile

Defendant

things,

and

Dawson

harassment

that

manifested in rude, inappropriate and sexually explicit comments;

uninvited

greeting

cards;

and

unprovoked

unwanted

sexually

touching;

and

explicit fear

and

apprehension. 15.

Defendant Dawson, on many occasions beginning in 2005 and continuing

through

2011,

harassed

the

Plaintiff

and

expressed his control over her and the job duties she performed. 16.

For

example,

in

2008

Defendant

Dawson

threatened

the

Plaintiff with termination because she refused his demand to

remain

at

a

Christmas

party

held

at

an

Anniston

Pathology principal’s residence. 17.

Defendant Dawson tried to have the Plaintiff fired by explaining

 

to

Joe

Weaver,

4

Vice

President

of

RMC


(hereinafter “Weaver”), that he was capable of doing the Plaintiff’s job. 18.

It

was

Defendant

routinely

and

Dawson’s

regularly

pattern

make

dirty

and

practice

jokes

to

containing

sexual suggestions and situations, to discuss his sexual prowess and abilities in bed, and to give inappropriate and sexually explicit greeting cards to the Plaintiff and other RMC employees. 19.

Defendant Dawson also maintained a pattern and practice of pulling back the scrub blouses of female employees.

20.

While performing the unwanted touching of pulling back the

scrub

blouses

of

the

female

employees,

Defendant

Dawson made lewd and unwanted comments such as “those will do”. 21.

The sexual harassment suffered by the Plaintiff at the hands of Defendant Dawson came to a head on August 9, 2011.

22.

The Plaintiff arrived at for work at 5:00 a.m. to begin her daily shift.

23.

At approximately 11:00 a.m., Defendant Dawson walked into the office of the Plaintiff while she was eating her lunch.

24.

Plaintiff’s office door, which is equipped with a small window covered with blinds that were closed at the time,

 

5


automatically shuts and therefore closed behind Defendant Dawson. 25.

Defendant Dawson took a seat opposite the Plaintiff who was also sitting, and began to criticize the Plaintiff’s job performance.

26.

During this encounter, Defendant Dawson also discussed his personal life and pending divorce and attempts at suicide with the Plaintiff.

27.

At

a

exited

point

during

his

chair,

the

conversation,

walked

over,

Defendant

and

Dawson

straddled

the

Plaintiff’s lap while she was still seated in her chair. 28.

Defendant Dawson next began kissing and licking the side of the Plaintiff’s face and head while at the same time rubbing her breasts.

29.

In response to this the Plaintiff asked Defendant Dawson, “David what are you doing? You don’t even like me.”

30.

In response to the Plaintiff’s question, Defendant Dawson stated, “I will throw you on the floor right now and fuck you!”

31.

Defendant Dawson placed his hand over the mouth of the Plaintiff and instructed her to “Shut up.”

32.

Defendant

Dawson

then

removed

Plaintiff’s lap.

 

6

himself

from

the


33.

Defendant Dawson then stood up and grabbed a hand full of the Plaintiff’s potato chips from her lunch and took his seat

back

in

the

chair

opposite

of

her

and

resumed

telling her about his divorce. 34.

While the Plaintiff sat in her chair in a state of shock and

fear,

Defendant

Dawson

calmly

resumed

his

conversation about his personal matters. 35.

Defendant

Dawson

informed

the

Plaintiff

that

Weaver

wanted to cut the Plaintiff’s salary by ten (10) dollars per hour. 36.

Defendant

Dawson

informed

the

Plaintiff

that

she

shouldn’t worry and that “I am going to take care of you.” 37.

Defendant Dawson then exited his chair again, and with a clear erection, walked back over to the Plaintiff and again

straddled

the

Plaintiff

and

began

kissing

and

licking the side of her face, and rubbing himself against her body. 38.

At that point, Dr. William Talbot, a partial owner of Anniston Pathology (hereinafter “Dr. Talbot”), knocked on the Plaintiff’s office door and began opening the door.

39.

Seeing office,

what Dr.

was

transpiring

Talbot

simply

interrupt?”

 

7

inside

said,

“I

the am

Plaintiff’s sorry

did

I


40.

At that point the Plaintiff was crying and was visibly upset.

41.

At the same time, Defendant Dawson placed his hands on the

Plaintiff’s

shoulders

and

pushed

himself

to

a

standing position. 42.

Dr. Talbot inquired as to whether Defendant Dawson wanted to go to lunch.

43.

Defendant Dawson simply stated, “I will be with you in a minute.”

44.

Dr. Talbot closed the door and walked away.

45.

Defendant Dawson then simply left the Plaintiff’s office.

46.

The

Plaintiff

remained

in

her

office

approximately

fifteen (15) minutes after the sexual assault. 47.

The Plaintiff then exited her office in a visibly shaken state.

48.

Two lab employees, Sonya Buchanan and LaShae Young, asked the Plaintiff what had happened.

49.

The Plaintiff relayed the events to the employees and they insisted that she contact Weaver.

50.

The Plaintiff worked the remaining part of her shift.

51.

During the remaining part of her shift, she necessarily had to see Defendant Dawson.

52.

Defendant

Dawson

repeatedly

asked

Sonya

Buchanan

LaShae Young what was wrong with the Plaintiff.

 

8

and


53.

At the end of her shift, the Plaintiff contacted Weaver on her drive home to report the sexual assault committed against her by Defendant Dawson.

54.

Weaver was not available to answer the call so she left a message with his assistant and asked that he return her call.

55.

Four (4) days after the sexual assault, the Plaintiff received a return call from Weaver.

56.

The Plaintiff explained the sexual assault to Weaver.

57.

Weaver

confronted

Defendant

Dawson

about

the

sexual

assault. 58.

After

Weaver’s

confrontation

of

Defendant

Dawson,

Defendant Dawson came back to the lab to resume his work. 59.

Defendant Dawson was being comforted by Dr. Talbot, a principal of Anniston Pathology.

60.

Defendant Dawson was then suspended from coming inside RMC for two (2) weeks, with pay, as a result of the incident made the basis of this suit.

61.

Defendant Dawson’s actions related to his treatment of the Plaintiff were well known and within the knowledge of Defendant RMC and Defendant Anniston Pathology.

62.

Defendant Dawson had and has a reputation at RMC and Anniston Pathology of sexually harassing and demeaning female co-workers and subordinates.

 

9


63.

Defendant practice

Jones of

has

also

retaliation,

maintained intimidation

a

pattern

and

and

harassment

against the Plaintiff. 64.

Defendant Jones did and does make crude comments to the Plaintiff concerning the sexual assault she suffered at the hands of Defendant Dawson.

65.

By way of example, Defendant Jones has made comments to the

Plaintiff

concerning

the

sexual

assault

such

as

“Maybe next time you should have let him take his pants off”. 66.

This comment was made to the Plaintiff by Defendant Jones within earshot of other RMC employees.

67.

Defendant Jones has also, in front of the Plaintiff and the Plaintiff’s co-workers, inquired of the Plaintiff the exact manner in which Defendant Dawson carried out sexual assault upon the Plaintiff.

68.

Defendant Jones inquired of the Plaintiff while holding the back of a chair “Is this how he was riding you?”

69.

In asking that question of the Plaintiff, Defendant Jones was speaking of the previously described sexual assault. CAUSE OF ACTION I (Assault)

70.

Plaintiff alleges

 

readopts the

each

Defendants

allegation RMC,

10

herein

Anniston

and

further

Pathology,

and


Defendant Dawson are liable for the tort of assault of the Plaintiff. 71.

The Plaintiff, during the sexual assault made the basis of this Complaint, was placed in fear and apprehension of being harmed by Defendant Defendant Dawson.

72.

Defendant harmful

Dawson’s contact

intent

upon

of

the

inflicting person

of

offensive the

and

Plaintiff

constitutes a common law cause of action of assault. 73.

Defendant liable

RMC

for

and

the

Anniston

tort

of

Pathology

assault

are

against

specifically the

Plaintiff

because Defendant Dawson, before, during, and after the sexual assault was acting as an agent of Defendants RMC and Anniston Pathology. 74.

Defendant Dawson, in committing the sexual assault upon the Plaintiff, intended with malice and aforethought to offensively touch the Plaintiff. WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action I in an amount to be determined by a struck jury. CAUSE OF ACTION II (Battery) 75.

Plaintiff alleges

 

readopts the

each

Defendants

allegation RMC,

11

herein

Anniston

and

further

Pathology,

and


Defendant Dawson are liable for the tort on battery of the Plaintiff. 76.

Defendant Dawson committed the tort of battery upon the person

of

the

Plaintiff

during

the

incident

made

the

basis of this Complaint when he offensively, with malice and

aforethought,

straddled

the

Plaintiff

and

began

licking and kissing the Plaintiff’s face and head. 77.

Defendant Dawson committed the tort of battery upon the person

of

the

Plaintiff

during

the

incident

made

the

basis of this Complaint when he offensively, with malice and

aforethought,

straddled

the

Plaintiff

and

began

groping the Plaintiff’s breasts and other body parts. 78.

The

unwanted

touching

of

the

Plaintiff

by

Defendant

Dawson during the sexual assault has caused the Plaintiff to suffer actual injury, pain and suffering, emotional distress, mental anguish, embarrassment, out of pocket expenses, and a fear of loss of standing in the community of her peers. 79.

Defendants RMC and Anniston Pathology are specifically liable

for

permissible

the

tort

theory

of of

battery

through

respondant

the

superior

legally because

Defendant Dawson, at all times relevant and material, during the committing of the battery, was acting as an agent of Defendants RMC and Anniston Pathology.

 

12


WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action II in an amount to be determined by a struck jury. CAUSE OF ACTION III (Intentional Infliction of Emotional Distress) 80.

Plaintiff

readopts

each

allegation

herein

and

further

alleges the Defendants RMC, Anniston Pathology, Defendant Dawson, and Jones are liable for the tort of intentional infliction of emotional distress of the Plaintiff. 81.

The sexual assault described in the preceding counts and factual allegations were perpetrated upon the Plaintiff with malice and aforethought and blatant disregard for the physical and emotional well-being of the Plaintiff.

82.

The

actions

of

Defendant

Jones

in

continuing

to

make

crude jokes to the Plaintiff in front of other people had the effect of inflicting additional intentional emotional distress upon the Plaintiff. 83.

The

cumulative

actions

and

malfeasance

of

the

named

Defendants have caused the Plaintiff to suffer mental anguish, emotional distress, sleeplessness, nervousness, embarrassment, and nightmares at times that the Plaintiff is actually able to sleep.

 

13


WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action III in an amount to be determined by a struck jury. CAUSE OF ACTION IV (Negligence) 84.

Plaintiff

readopts

each

allegation

herein

and

further

alleges the Defendants RMC, Anniston Pathology, Defendant Dawson, and Jones are liable for the tort of negligence against the Plaintiff. 85.

The Defendants RMC and Anniston Pathology breached the duty of care owed to the Plaintiff by causing her to be assaulted and battered.

86.

Defendants

RMC

and

Anniston

Pathology

had

a

duty

to

ensure that as employers, superiors, and overseers of employees

at

RMC

and

Anniston

Pathology,

employee

to

include the Plaintiff, were provided a reasonably safe working environment. 87.

The inattention, thoughtlessness, heedlessness and lack of due care on behalf of Defendants in their actions and inactions in allowing the sexual assault of the Plaintiff to take place during working hours created a breach of the duty of care owed by RMC and Anniston Pathology to the Plaintiff.

Such negligence was one of the proximate

causes of injuries suffered by the Plaintiff.

 

14


88.

Defendant Dawson owed and continues to owe the Plaintiff a duty of care to refrain from physically harming or otherwise injuring the Plaintiff.

89.

On August 9, 2011, Defendant Dawson negligently breached this duty of care when he with malice, aforethought, and hostile intent sexually assaulted the Plaintiff.

90.

Defendant Jones breached the duty of care that he owed and owes to the Plaintiff by continuing, with malice and aforethought, to publicly ridicule the Plaintiff for her injuries

suffered

in

the

sexual

assault

committed

by

Defendant Dawson. 91.

The cumulative negligent actions described herein have caused the Plaintiff to suffer injuries which include, but

are

not

limited

to,

mental

anguish,

emotional

distress, sleeplessness, nervousness, embarrassment, and nightmares at times that the Plaintiff is actually able to sleep. WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action IV in an amount to be determined by a struck jury.

 

15


CAUSE OF ACTION V (Negligence Retention) 92.

Plaintiff

readopts

each

allegation

herein

and

further

alleges the Defendants RMC and Anniston Pathology are liable of the tort of negligent retention. 93.

Specifically, the Defendants RMC and Anniston Pathology’s actions violated Ala. Code § 6-11-27, because they knew or

should

have

known

of

the

unfitness

of

the

agent,

employee, or servant, and employed him or continued to employ

him,

or

used

his

services

without

proper

instruction with a disregard of the rights or safety of others, and authorized the wrongful conduct which did not serve as a benefit to the Defendants RMC and Anniston Pathology. 94.

Defendant RMC and Defendant Anniston Pathology knew or should have known that its employees Defendant Dawson and Defendant

Jones

are

persons

unworthy,

by

habits,

temperaments, and nature to deal with other persons on the employers’ premises. 95.

Further,

the

Defendants

are

liable

for

the

resulting

injuries, which Plaintiff sustained as a result of such negligence.

 

16


WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action V in an amount to be determined by a struck jury. CAUSE OF ACTION VI (Negligence Supervision) 96.

Plaintiff

readopts

each

allegation

herein

and

further

alleges the Defendants RMC and Anniston Pathology are guilty of the tort of negligent supervision. 97.

Specifically, the Defendants RMC and Anniston Pathology’s actions were negligent and/or wanton in hiring Defendant Dawson when they knew or should have known of Defendant Dawson’s incompetency and unfitness.

98.

Principals witnessed

of and

Defendants had

RMC

knowledge

and

Anniston

of

Defendant

Pathology Dawson’s

repeated acts of carelessness and the lack of competency of a certain character which should have been possessed by Defendant Dawson acting as their servant. 99.

Defendant Anniston Pathology failed to prevent Defendant Dawson and Defendant Jones from repeating their sexual harassment of the Plaintiff.

100. Defendant

Anniston

Pathology

failed

to

properly

train

Defendant Dawson and Defendant Jones to prevent their harassing behaviors toward the Plaintiff.

 

17


101. Further, the Defendants RMC and Anniston Pathology, as masters liable

of

Defendant

for

Dawson

negligent

and

Defendant

supervision

for

Jones,

permitting,

are or

failing to prevent, negligent or other tortious conduct by persons, whether or not servants or agents, upon the premises or with instrumentalities under their control, and for the resulting injuries to Plaintiff. WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action VI in an amount to be determined by a struck jury. CAUSE OF ACTION VII (Negligence Per Se) 102. Plaintiff alleges

readopts the

each

Defendants

allegation RMC

and

herein

and

Anniston

further

Pathology’s

actions are negligence per se because the complained of acts are in violation of certain codified state laws. 103. Specifically, the Defendants’ actions in the negligent hiring and supervision of the Defendants violates Ala. Code § 6-11-27; 6-5-300; and, 25-6-1. WHEREFORE,

premises

considered,

the

Plaintiff

demands

judgment, both compensatory and punitive, for Cause of Action VII in an amount to be determined by a struck jury.

 

18


JURY DEMAND Pursuant to Rule 38 of the ALABAMA RULES

OF

CIVIL PROCEDURE,

the Plaintiff herein demands a trial by struck jury on all triable issues of fact.

Respectfully submitted, /s/ H. Gregory Harp H. Gregory Harp (HAR 299) HARP LAW, LLC 2001 Park Place, Suite 870 Birmingham, Alabama 35203 (205) 972-8100 (Phone) (205) 972-8050 (Fax) gharp@harplawllc.com

 

19


Please serve Server:

the

following

Defendants

via

David M. Dawson 1029 Glenwood Terrace Anniston, Alabama 36207-5850 Anniston Pathology Management Services, L.L.C. 400 East 10th Street Anniston, Alabama 36202 Regional Medical Center Anniston 400 East 10th Street Anniston, Alabama 36202 Tim Jones Regional Medical Center Anniston 400 East 10th Street Anniston, Alabama 36202

 

20

Private

Process


David Dawson lawsuit