                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 February 19, 2002 Session

      DENNIS OSA OSAGIE v. PEAKLOAD TEMPORARY SERVICES

                     Appeal from the Circuit Court for Davidson County
                      No. 01C-232 Hamilton V. Gayden, Jr., Judge



                    No. M2001-00852-COA-R3-CV - Filed May 16, 2002



An employee of a temporary services agency sued the agency for non-payment of wages and for
discrimination. The trial court dismissed the claim for non-payment with prejudice, and the claim
for discrimination without prejudice. We affirm the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J. and
ROBERT L. JONES, SP . J.,joined.

Dennis Osa Osagie, Nashville, Tennessee, Pro Se.

Elizabeth A. Alexander, Nashville, Tennessee, for the appellee, Peakload Temporary Services, Inc.

                                           OPINION

                         I. A DISASTROUS DAY AND ITS AFTERMATH

        This case arose from a disastrous day of work for the plaintiff, Dennis Osa Osagie. The
following account of that day is largely derived from Mr. Osagie’s pleadings, and for the purposes
of this appeal, we will presume it to be accurate.

        Dennis Osagie was homeless at the time of the events described, and was employed by
Temporary Peakload Services. On the morning of December 4, 1999, his employer brought him to
the Holiday Inn to work. Mr. Osagie arrived at 9:00 a.m., and was assigned to a housekeeper, who
showed him how to make up beds in the guest rooms. After Dennis Osagie made up the beds in
three rooms, the housekeeper said he was not doing it properly, and told him instead to bring the
trash from the hallways to the dumpster.
       At some point, Mr. Osagie took a break, and went to an unoccupied room to eat the lunch
he had brought. Someone apparently saw Mr. Osagie eating in the motel room, and reported that he
was stealing food from the guests. The manager of the Holiday Inn called Peakload to have Mr.
Osagie removed from the motel, and told the agency that she would charge him with theft if he
returned to the property.

         At 2:00 p.m., Patricia and Sidney Creech pulled up in a van from Peakload. Ms. Creech was
a dispatcher for the agency, and Mr. Creech was the van driver. Ms. Creech told Mr. Osagie that she
was not going to pay him for his work, and that the manager at the Holiday Inn should not have
signed his pay slip. Dennis Osagie got into the van, but before the van managed to leave the parking
lot, he remembered that he had left his winter coat at the motel.

        When he attempted to get out of the van, Mr. and Mrs. Creech restrained him. Sidney Creech
allegedly hit Mr. Osagie, and Mr. Osagie hit him back. Mr. Creech suffered a ruptured eardrum from
the blow. He subsequently filed a complaint for assault against Mr. Osagie. Because he was unable
to make bond, Mr. Osagie took a plea bargain on the charge. On March 23, 2000, he pled guilty to
assault, and was sentenced to six months in jail, and ordered to serve 40% of his sentence.

                          II. COURT PROCEEDINGS AGAINST PEAKLOAD

       On November 3, 2000, Dennis Osagie filed a warrant in the General Sessions Court against
Peakload Temporary Services. He claimed that the defendant owed him $25 for five hours of unpaid
work. The warrant could not be served, and on November 28, Mr. Osagie filed an alias warrant,
which was served. After a hearing on January 5, 2001, the General Sessions Court entered a
judgment for the defendant.

        Mr. Osagie then filed a hand-written pro se complaint in the Circuit Court. His subsequently
filed notice in the Circuit Court, stated that in addition to the $25 he was originally seeking, he was
also asking for $250,000 for “discrimination, punity (sic) damages and intimidations, plus any other
expense involved during court proceedings like attorney and court expense.” Peakload’s attorney
then filed a Notice of Appearance, and moved the court to set a hearing on March 20, 2001. Mr.
Osagie did not object, and the hearing was set for that date.

         When Mr. Osagie’s case was called, he moved the Circuit Court to continue the case. The
defendant objected on the ground that the plaintiff had been given adequate time to prepare for his
trial, and that the parties had agreed on the trial date. The defendant also explained to the trial court
that it had attempted to resolve this matter by making an Offer of Judgment of $50, double the
amount that Mr. Osagie had initially sought for unpaid wages, and that the plaintiff had refused the
offer.

       The trial court told Mr. Osagie that he needed to go forward with his case, or his complaint
would be dismissed. The plaintiff refused to proceed with his case, and the court dismissed his claim



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for unpaid wages with prejudice, and dismissed his claim for discrimination without prejudice. Mr.
Osagie then filed a timely Notice of Appeal to this court.

                           III. THE DISMISSAL OF THE WAGE CLAIM

        Mr. Osagie filed an Affidavit of Indigence in connection with his Notice of Appeal, and the
Circuit Court ordered that he be allowed to proceed with his appeal in forma pauperis. Mr. Osagie
appeared at oral argument pro se. We observed that his speech is heavily accented, and that it is
somewhat difficult to understand him. We would not normally comment on such a circumstance,
but we do so in this case because it appears to us that many of the problems that Mr. Osagie suffered
during his ill-fated day at the Holiday Inn can probably be attributed to miscommunication.

        In any case, Mr. Osagie’s handwritten brief on appeal is also somewhat difficult to
understand. It appears, however, that he is complaining that he was not paid for the time he worked
at the Holiday Inn, that he was discriminated against, and that he was defamed by the defendant. We
will deal with these claims in order.

        The trial court did not dismiss Mr. Osagie’s claim for wages on a finding that the money was
not owed, but rather because of Mr. Osagie’s refusal to proceed in this case after the court denied
his Motion for Continuance. We note that the decision of a trial court to grant or deny a continuance
is within the court's discretion, and will not be reversed absent a clear showing of abuse of that
discretion. Mallard v. Tompkins, 44 S.W.3d 73 (Tenn. Ct. App. 2000); Russell v. Crutchfield, 988
S.W.2d 168 (Tenn. Ct. App.1998); Blake v. Plus Mark, Inc., 952 S.W.2d 413 (Tenn. 1997).

        Although the trial court did not specifically cite the rule, we deem its dismissal of Mr.
Osagie’s wage claim to be a dismissal for failure to prosecute under rule 41.02 of the Rules of Civil
Procedure. This rule is necessary to enable the court to manage its own docket, and to protect
defendants against plaintiffs who are unwilling to put their claims to the test, but determined to
subject them to the continuing threat of an eventual judgment. Like the decision to grant or deny a
continuance, a trial court’s decision to dismiss a case for failure to prosecute is within its sound
discretion, and will not be reversed unless there is abuse of that discretion. Manufacturers
Consolidation Service, Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App. 2000); White v. College
Motors, Inc., 370 S.W.2d 476 (Tenn. 1963).

        In the present case, Mr. Osagie does not deny that he agreed to the trial date, and there is
nothing in the record to indicate the reason or reasons why he did not feel ready to proceed on the
appointed date. While trial courts do have the discretion to grant continuances under the appropriate
circumstances, the burden falls on the party asking for the continuance to explain to the trial court
just what those circumstances are. In the absence of any such explanation, we do not believe the trial
court abused its discretion in declining to grant Mr. Osagie a continuance. We also do not believe
it was an abuse of discretion for the trial court to dismiss his claim after he refused to proceed. In
fact, we are not sure what else the trial court could have, or should have, done.



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                                          IV. OTHER ISSUES

       Mr. Osagie asserts (or at least implies) that the defendant’s failure to pay him his wages can
support a claim for discrimination. He does not offer any explanation why he believes this, and he
does not offer any direct evidence of discrimination.

         The appellee notes that a plaintiff may create an inference of discrimination on the basis of
race through circumstantial evidence, under either the Tennessee Human Rights Act, Tenn. Code
Ann. § 4-21-101 et seq., or Title VII, 42 U.S.C. § 2000 et seq., but that he can only do so if he
presents proof of four elements: (1) that he is a member of a racial minority; (2) that he was
satisfactorily performing his job duties; (3) that he was subject to an adverse employment action; and
(4) that he was either replaced by a non-minority or that similarly situated non-minority employees
were treated more favorably. Anderson v. Mead Johnson Nutritional Group, 910 F. Supp. 376 (E.D.
Tenn. 1996).

        Appellee concedes that Mr. Osagie can establish the first and third elements of a
discrimination claim, but notes that the record reflects that he was not performing his job duties in
a satisfactory manner, and that there is no evidence in the record that he was replaced by a non-
minority person or that he was treated any differently from any similarly situated non-minority
person. We agree with the appellee that Mr. Osagie has failed to state a prima facie claim of
discrimination.

        As for the question of defamation, Mr. Osagie does not explain why he believes himself
entitled to damages for defamation of character. We note that he did not raise a defamation claim
in the court below. This court is only required to consider issues that were presented to the trial
court, and we are not required to grant relief “to a party responsible for an error, or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error.” Rule
36, Tenn. R. App. P.

       The appellee has suggested that Mr. Osagie perhaps meant to assert a malicious prosecution
claim (arising out of his arrest and conviction) rather than a defamation claim (arising from
accusations of theft), and out of an abundance of caution has analyzed whether the facts of this case
could support a malicious prosecution claim.

        Putting aside the objection that such a claim was not raised below, the appellee correctly
argues that the elements of a malicious prosecution claim are not present in this case. Without
reciting the appellee’s arguments in too much detail, we note that one of the elements necessary to
establish a malicious prosecution is that the prior action was finally determined in the plaintiff’s
favor. Kelly v. Tomlinson, 46 S.W.3d 742 (Tenn. Ct. App. 2000). In this case, Mr. Osagie admits
that he struck Mr. Creech and injured him (although he claimed that Mr. Creech struck him first).
Mr. Osagie pled guilty to assault, and was convicted of the crime. Thus, the prior action was finally
determined against him, and he is not entitled to maintain an action for malicious prosecution.



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                                              V.

       The judgment of the trial court is affirmed. Remand this cause to the Circuit Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Dennis Osa Osagie.




                                            _________________________________________
                                            BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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