Cheryl Ogunbor v. Maleisha May

204 So. 3d 840, 2016 Miss. App. LEXIS 163
CourtCourt of Appeals of Mississippi
DecidedMarch 29, 2016
Docket2012-CP-00378-COA, 2013-CP-00653-COA
StatusPublished
Cited by8 cases

This text of 204 So. 3d 840 (Cheryl Ogunbor v. Maleisha May) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheryl Ogunbor v. Maleisha May, 204 So. 3d 840, 2016 Miss. App. LEXIS 163 (Mich. Ct. App. 2016).

Opinion

FAIR, J.,

for the Court:

¶ 1. Cheryl Ogunbor 1 sued Sears and a number of its employees. She claimed a female Sears employee sexually harassed her by visiting her house once, driving past her house a few times, looking at her while she was at Sears, and texting her less than ten times. Ogunbor alleged that Sears was vicariously liable for its employee’s behavior. But Ogunbor failed to serve some of the defendants with process within the 120-day deadline. And Sears successfully moved for summary judgment because its employee’s conduct was not within the course and scope of her employment. Ogunbor appeals, but there is no merit to her claims. Accordingly, we affirm the Pike County Circuit Court’s judgment.

BACKGROUND

¶2. This procedurally complex negligence litigation is the unexpected result of Ogunbor’s April 2, 2010 purchase of patio furniture from Sears in McComb, Mississippi. Sales associate Damian Cotton helped Ogunbor with her purchase, which had to be shipped to McComb. Ogunbor gave Cotton her cell phone number so she could be informed when her furniture was available to be picked up. While discussing assembly of the furniture and the possibility of home delivery, Ogunbor mentioned her home in Tylertown, Mississippi. Another employee, Maleisha May, 2 over *843 heard Ogunbor. During her deposition, Ogunbor admitted that she told May where she lived. According to May, during their brief casual conversation, Ogun-bor seemed proud of her home and landscaping, and she mentioned “her nice cars, including a Jaguar, and she told us about her jacuzzi.” May also said that Ogunbor “invited [her] and other store employees to visit her home whenever [they] wanted.”

¶3. The next .afternoon, May went to Ogunbor’s house. She and Ogunbor talked in the driveway for less than five minutes. During their brief conversation, May mentioned that Ogunbor’s furniture had been ordered. She said that she had stopped by the previous night,- but she could not find Ogunbor’s doorbell. May also mentioned, that she liked the “Girls like riding, too” sticker on the rear window of Ogunbor’s truck. Ogunbor excused herself because she was cooking food at the time. Ogunbor later agreed that May was “pleasant” during the conversation.

¶4. On April 7, 2010, Cotton called Ogunbor to tell her that her furniture had arrived at the McComb store, but she would need tq order an umbrella stand. The next day, an auto dialer called Ogun-bor because her furniture was ready for pickup. Cotton called Ogunbor again about the umbrella stand. May also contacted Ogunbor. According to May, she had learned through Cotton that Ogun-bor’s furniture was ready to be picked up. Approximately an hour before she was scheduled to begin her shift at Sears, May “took it upon [her]self to let [Ogunbor] know that her merchandise had arrived.”

¶5. Using an abbreviated shorthand, May sent Ogunbor the following text message: “Hello how r u just txtw 2 let u know ur patio set is ready 4 u 2 pick up I only love one person[.]” May’s text led to the following exchange:

Ogunbor: and who do u love
May: my lil boy im a single lady lookn I only love one person
Ogunbor: who is this
May: they gurl from Sears I only love one person
Ogunbor: oh hey
Ogunbor: Im coming tomorrow
May: o ok I only love one person

May later explained that the “I only love one person” statement in her text messages was an automatically generated closing that appeared in all of her text messages.

¶ 6. On April 9, 2010, Ogunbor made two trips to McComb to pick up her patio furniture. While her furniture was being loaded into the back of her truck, Ogunbor asked Cotton and another Sears employee, Lula Jackson, about May. According to Ogunbor, they told her that May was.homosexual. May did not speak to Ogunbor that day. However, Ogunbor later claimed that May “stalked” her while she was at Sears, because May looked at her for an unspecified time from a distance of approximately thirty to fifty feet.

¶ 7. At approximately 4:30 p.m. the next day, Ogunbor and her gardener, John Ba-don, were washing her three cars in her driveway. Nearly three hours later, the following text exchange occurred:

May: I seen .them cars out front 2day he saw the best in me
Ogunbor: I need you to stop coming by my house n texting me
May: ok that fine but I did cum by ur house I was on the main highway gud day he saw the best in me
Ogunbor: how did you get my number

That was the last time that May communicated with Ogunbor.

¶ 8. May later explained that hours before she sent her initial text message, she had been driving on Beulah Avenue in *844 Tylertown when she happened to see Ogunbor outside. Ogunbor’s house was not on Beulah Avenue. According to May, her second text message was an attempt to explain that she had not been driving on Ogunbor’s street, but she accidentally omitted “not” from the message. However, Ogunbor interpreted the message much differently. She adamantly believed that May’s second message was sexually explicit. 3

¶ 9. Approximately an hour later, Ogun-bor called Sears and spoke to Edith Andrews, the manager of the McComb Sears. Ogunbor claimed that May had stolen her cell phone number, and she had been stalking and harassing her. When Jackson called Ogunbor two days later, Ogun-bor said she could not talk because she was in the emergency room with symptoms caused by distress related to May. Before ending the call, Jackson told Ogun-bor that Shawn Evans was Sears’s district manager for the area. The next day, Ogunbor tried to call Evans seventeen times between 2:30 p.m. and. 4:00 p.m.

¶ 10. Evans called May back on April 16, 2010. Ogunbor thought that Evans “sounded like he was ... just doing the paperwork” associated with her complaints. That same day, Ogunbor contacted the McComb Police Department and filed harassment charges against May. 4 Ogunbor eventually stopped contacting Sears employees when the company’s legal department told her-to stop. 5

PROCEDURAL HISTORY

¶ 11. As previously mentioned, this case is somewhat procedurally complex. 6 On April-6, 2011, Ogunbor filed a pro se complaint against Sears, May, Evans,- and Jackson. The complaint listed Cotton, Andrews, and Brian Impey 7 as witnesses. A fourth Sears employee, Karen Wheat, 8 was mentioned in the complaint, but she was not characterized as a defendant or a witness. Seeking $200,000 in damages, Ogun-bor claimed that May stalked and sexually harassed her.

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204 So. 3d 840, 2016 Miss. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheryl-ogunbor-v-maleisha-may-missctapp-2016.