WEST VIRGINIA RECORD

BLUEFIELD – Long John Silver's says an employee should have sought company-sponsored arbitration before bringing her sexual harassment case to court.

Long John Silver's is asking U.S. District Court for the Southern District of West Virginia to dismiss plaintiff Angela Dyson's case against it and to move the case to a national arbitration board.

Dyson originally filed suit in Mercer Circuit Court on Aug. 12 against Long John Silver's and one of its district managers, Ray West.

Dyson claims that while she worked as a general manager at Long John Silver's, West repeatedly harassed her. For example, soon after Dyson's promotion to the position, West approached her outside the Princeton Long John Silvers, pulled his pants down and displayed his blue underwear, saying, "You know how much you like it" and "This could rock your world," according to the complaint.

West's harassment continued in 2006 after Dyson lost a considerable amount of weight due to medication she began taking to treat her diabetes, the suit states.

"West regularly and repeatedly commented to Plaintiff that her 'ass was good-looking,' 'you know what I want,' and 'I want me a pretty little blonde with big boobs,'" the complaint says.

Dyson claims she was subjected to additional comments during an area coaches' meeting that West requested she attend with him at Massanutten Resort in Virginia held in late April through early May 2007.

The harassment began before the managers even left the parking lot. According to the complaint, West was late arriving to pick Dyson up, so he brought her a rose to apologize.

During the ride to the hotel, West noticed Dyson moving her legs slightly and told her to stop as she was giving him a "hard-on," the suit states.

Once they arrived at the hotel and throughout their meeting breaks, West repeatedly called Dyson a "stupid little bitch," the complaint says.

In her complaint and in her amended complaint, Dyson tells two different stories about what occurred throughout her stay at the resort.

In her original complaint, Dyson says she received a phone call from West at about 1 a.m. after he got into an argument with his wife on the phone. She claims he called her because he had hit the floor after the conversation and believed his hand was broken. West wanted Dyson to take him to the emergency room, according to the first complaint.

After the trip to the hospital, West asked Dyson to assist him in finishing a project he was scheduled to present the following day.

Agreeing to provide assistance, Dyson helped West connect to the Internet and offered additional help throughout his work on the presentation, she claims. While helping West, though, Dyson developed a headache and decided to lay on a couch in West's room to watch television while West took a call from his wife.

"After the call ended, West approached Plaintiff, said she needed a nice massage and some hot sex, straddled her back, pushed her body down to the couch and began rubbing Plaintiff's body and rubbing his body against Plaintiff's body," the suit states. "West told her that he had some Viagra, that he could last all night and that Plaintiff would never be the same if they could just sleep together."

But in her amended complaint, Dyson claims West asked for her help with the presentation before she took him to the emergency room. She also says she developed the headache before Dyson hurt his hand and was in the room when West took his first phone call from his wife.

Dyson heard West arguing over the phone with his wife and attempted to leave the room, but West motioned for her to stay.

Refusing West's advances, Dyson attempted to leave the room, but West grabbed her pack of cigarettes that contained her room key, according to the amended complaint. While Dyson tried to retrieve her pack of cigarettes, West placed her in a headlock, the complaint says.

After the call ended, Dyson says West came over to the couch where she was lying and made advances on her, which she refused.

Later, West again received a phone call from his wife, according to Dyson's amended complaint. At the end of the conversation, West threw the phone across the room and punched the floor, breaking his hand, the amended suit states.

Dyson left the room to get ice for West and returned to find West opening a pill bottle and pouring out a substance he identified as crack, the amended complaint says.

"West told Plaintiff that smoking the crack would ease the pain in his hand," Dyson's amended complaint says. "Plaintiff repeatedly told West he needed to see a doctor. Finally West asked Plaintiff to take him to a local emergency room where it was determined that he had broken his hand."

While West admits that he did ask Dyson to attend the area coaches' conference and does admit that Dyson was forced to take him to the emergency room for a broken hand, he denies her remaining allegations against him.

The following morning, as they were preparing to leave the resort, West approached Dyson complaining about his hand, then asked her to strip his bed, she claims.

"Plaintiff told him he could take care of his own bed and West again made demeaning comments to her," the suit states. "The supervisor inquired as to whether the Plaintiff and West were having a lover's quarrel and Plaintiff responded 'not hardly.'"

On the trip back to Princeton, Dyson stopped for a gas and bathroom break. When she returned to the car, West was smoking from his pipe again, according to the complaint.

Once returning to the store, West told Dyson that she could not tell anybody about what had occurred, the complaint says.

The following morning, Dyson returned to work to find that her cook did not arrive. So, Dyson called West to let him know that she was not able to make her morning deposit and would be forced to make it after work. Immediately after the phone call, Dyson placed the money in her car, but forgot about it that evening, she claims.

The next morning on her way to work, Dyson suffered from low blood sugar and was involved in an accident as a result. Because she was dazed, Dyson claims an officer brought her home and a tow truck picked up her vehicle, where the deposit still laid. When Dyson was able to access her vehicle, she realized that her deposit was missing, according to the complaint.

When Dyson told West about what had transpired, he told her he would have to issue her a write up. But he called her later that night, panicking because he said he had lost her write-up slip. He repeatedly asked her to meet him to fill out another slip, which she did at a Go-Mart, the suit states. Once there, West asked Dyson to perform oral sex, but she again refused, the complaint says.

On Aug. 13, 2007, West visited Dyson's store. While both of her hands were occupied attempting to pull fish out of a fry vat, West stuck his hand in Dyson's pants and grabbed her butt, commenting that she should get some pants to show off her "pretty little ass," she claims.

"Plaintiff responded that if he ever touched her again she would put his ass in the fryer vat," the suit states.

Dyson claims she had endured West's harassment because of her need to support her children and because of her need for medical benefits to treat her diabetes, but could no longer take it.

"Plaintiff left a note on the back of an envelope, telling West that she could not take anymore, and asked another employee to give the note and her keys to West," the suit states.

In her complaint, Dyson alleges assault, sex discrimination, negligent supervision, tort of outrage, negligent infliction of emotional distress and retaliation against the defendants.

Like West, Long John Silver's denies most of Dyson's allegations against it, but does admit that Dyson attended the referenced meeting and did take West to the emergency room for treatment of his broken hand.

Dyson is seeking compensatory and punitive damages.

In his answer to Dyson's complaint, West is asking the court to dismiss her lawsuit with prejudice and to preserve his right to file a counterclaim against Dyson.

In its motion to dismiss or to stay the complaint and compel it to arbitration, Long John Silver's says Dyson should have sought arbitration before filing her complaint, as was company policy. In fact, when she began working as an assistant manager in 2003, Dyson signed an agreement that she would bring any disputes to an arbitration board, Long John Silver's claims.

"In West Virginia, an arbitration agreement is enforceable and supported by adequate consideration if the agreement is mutual," the company's motion to dismiss says. "In this case, Dyson voluntarily signed the arbitration agreement as a part of her decision to work for LJS Restaurants. Additionally, the Agreement binds both Dyson and the Company, mutually, to arbitrate their respective claims against each other; the Company has no more right to avoid arbitration than Dyson does."

Long John Silver's is asking the court to either force Dyson to arbitrate her claims or to dismiss her complaint.

Because Dyson is a resident of West Virginia, West is a Virginia resident and Long John Silver's is a Delaware corporation, diverse of citizenship exists, which is grounds to remove the case to federal court. In addition, Dyson is seeking more than $75,000, so Long John Silver's removed her complaint to U.S. District Court for the Southern District of West Virginia.

Dyson will be represented by Kathryn Reed Bayless of Bayless Law Firm in Princeton.

Long John Silver's will be represented by Susan R. Snowden of Martin and Seibert in Martinsburg and by Jim Shortt II of Galumbeck, Dennis and Kegley in Tazewell, Va. Andrea M. Johnson of Burleson Cooke in Houston will be representing her.

West will be represented by Jim Shortt II of Galumbeck, Dennis and Kegley in Tazewell, Va.

U.S. District Court case number: 1:09-cv-1060