Guy v. Alabama Power Company
OPINION AND ORDER that defendant Alabama Power Company's motion to dismiss 7 is granted as to plaintiff William A. Guy's claim of negligent or wanton hiring, training, and supervision and said claim is dismissed. This motion may now be terminated. Signed by Honorable Judge Myron H. Thompson on 7/29/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WILLIAM A. GUY,
ALABAMA POWER COMPANY,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff William A. Guy brought this lawsuit against
defendant Alabama Power Company, charging federal claims
Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4333,
and asserting two Alabama state claims based on (2) the
tort of intentional infliction of emotional distress and
(3) the tort of negligent or wanton hiring, training, and
Jurisdiction is proper under 28 U.S.C.
This matter is now before the court on Alabama Power’s
motion to dismiss.
Based on the parties’ filings and
representations made on the record on June 19, 2013, this
dismissed his intentional-infliction-of-emotional-distress
negligent or wanton hiring, training, and supervision.
For the reasons set forth below, the court will now grant
Alabama Power’s motion to dismiss as to this claim as
In considering a defendant’s motion to dismiss, the
court accepts the plaintiff’s allegations as true, Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984), and construes
the complaint in the plaintiff’s favor, Duke v. Cleland,
5 F.3d 1399, 1402 (11th Cir. 1993).
“The issue is not
whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
survive a motion to dismiss, a complaint need not contain
Twombly, 550 U.S. 544, 545 (2007), “only enough facts to
state a claim to relief that is plausible on its face.”
Id. at 574.
Guy is a member of the Alabama National Guard, which
is a component of the United States Army and the United
States National Guard.
Since 2003, he was also working
for Alabama Power, first as a salesman, and then, starting
in 2008, as Division Appliance Sales Manager.
2012, he informed his supervisor that his National Guard
unit was being deployed to Afghanistan in April 2013.
alleges that his informing his employer of this deployment
resulted in a series of adverse actions against him that
ultimately culminated in his termination.
In his claim of
negligent or wanton hiring, training, and supervision, he
specifically alleges that Alabama Power knew that its
engaging in discrimination based on military service and
“failed to halt said discrimination; failed to discipline
or terminate the offending employee[s]; retained said
offending employee[s] in their managerial capacity; and
Compl. (Doc. No. 1) at 11-12.
The key points of contention in the parties’ filings
on Guy’s claim of negligent or wanton hiring, training,
and supervision are, first, what Alabama law requires in
order to establish this claim and, second, whether Guy’s
allegations meet those requirements.
It appears that Alabama courts have, in general,
recognized two means of holding employers liable for their
There is the obvious indirect or
vicarious liability through the doctrines of agency or
respondeat superior by which employers are held liable for
their employees’ wrongdoing if certain conditions are met,
and then there is direct liability by which employers are
wantonly hiring, training, or supervising their employees.
Stevenson v. Precision Standard, Inc., 762 So. 2d 820
(Ala. 1999); Big B, Inc. v. Cottingham, 634 So.2d 999
(Ala. 1993); Potts v. BE & K Const. Co., 604 So. 2d 398
(Ala. 1992); see also Kurtts v. Chiropractic Strategies
Group, Inc., 481 F. App'x 462, 469 (11th Cir. 2012).
Here, Guy asserts the latter.
Alabama Power contends that a claim of negligent or
wanton hiring, training, and supervision must be based on
an Alabama common-law tort.
Guy responds that Alabama
Power reads Alabama law too narrowly; instead, he contends
that the law allows this sort of claim to go forward based
simply on “wrongful conduct.”
Accordingly, he contends
that he finds a basis for his claim in an Alabama statute
that incorporates and applies the federal USERRA to the
members of the Alabama National Guard.
To support his interpretation, Guy leans heavily on
the Alabama Supreme Court’s decision in Jones Exp. Inc. v.
Jackson, 86 So.3d 298, 304 (Ala. 2010).
He contends that,
in that case, the court implies that a claim of negligent
hiring, supervision, and training may be based on an
employee’s wrong other than one grounded in an Alabama
The court in that case reasoned that,
"implicit in the tort of negligent hiring, retention,
consequence of the employer's incompetence, the employee
committed some sort of act, wrongdoing, or tort that
caused the plaintiff's injury."
Id. at 305 (emphasis
wrongdoing must be based on state, and not federal, law.
training, and supervision could be a corridor through
which federal laws prohibiting various types of conduct by
privately redressable requirement on employers to stop
“[M]ak[ing] an educated guess of how the Alabama courts,
and, in particular, the Alabama Supreme Court,” would
answer this question, Palmer v. Infosys Technologies Ltd.
(Thompson, J.), this court confidently doubts that the
Jones court intended such potentially indiscriminate and
broad incorporation of federal law into state law.
The more difficult question is whether the Jones court
intended to restrict the tort of negligent or wanton
hiring, training, and supervision to those instances in
which the employee’s wrongdoing is based on Alabama common
law, or, to put it another way, the tort does not include
those instances where the wrongful conduct is based on
only an Alabama statute.
In determining what the Jones
court intended, this court believes it prudent to heed
that it is generally undesirable, where holdings of the
Alabama Appellate Courts are not at issue, to dissect the
sentences in the opinions of those courts as though they
were the Alabama Code.
Cf. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993) (“we think it generally
undesirable, where holdings of the Court are not at issue,
to dissect the sentences of the United States Reports as
though they were the United States Code”).
is particularly applicable here because the issue before
the Jones court was not whether the underlying employee
wrongdoing for the tort of negligent or wanton hiring,
training, and supervision was restricted to a common-law
tort but rather whether a jury’s finding that a truck
driver was not negligent was inconsistent with its finding
that the company negligently hired the truck driver and,
if so, whether a new trial was the proper remedy.
the above language from Jones, upon which Guy so heavily
relies, was not its holding, that language should not be
elsewhere as well so as to get the full picture.
(Ala.1993), th[e Alabama Supreme] Court recognized a cause
Stevenson v. Precision Standard, Inc., 762 So.
2d 820, 824 (Ala. 1999).
“That cause of action ... was
employee, an assistant manager.”
Id.; see also Stevenson,
supra (holding that a jury verdict against an employer
employee could not stand where the jury also exonerated
Then, relying on Big B and Stevenson,
this federal court stated that, “Under Alabama law, the
finding of underlying tortious conduct is a precondition
to invoking successfully liability for the negligent or
wanton training and supervision of an employee.”
Boyd Bros. Transp., Inc., 406 F. Supp. 2d 1238, 1248 (M.D.
Ala. 2005) (Thompson, J.).
And, to complete the circle,
the Jones court cited this court’s Smith opinion as one of
several “additional authorities” in support of the Jones
quote relied upon by Guy, 86 So3d at 305; indeed, without
language relied upon by Guy, the Jones court actually
quoted the above language from Smith.
86 So.3d at 304.
If this case-law history were not enough to support
restricted to an underlying common-law tort or just a tort
by the employee, it appears that all Alabama federal
courts that have considered the issue have consistently
interpreted state law as requiring that the employee’s
wrongdoing be based on “a common-law, Alabama tort ...,
[and] not on a federal cause of action.”
Short v. Mando
Am. Corp., 805 F. Supp. 2d 1246, 1277 (M.D. Ala. 2011)
(Fuller, J.) (quotations and citations omitted); see also,
e.g., Williams v. Daiichi Sankyo, Inc., 2012 WL 3627765,
plaintiff must allege underlying wrongful conduct that is
an Alabama common law tort to support a claim of wanton
supervision.”); Evans v. Mobile Infirmary Med. Ctr., 2005
WL 1840235, at *17 (S.D. Ala. Aug. 2, 2005) (Hand, J.)
("[T]he Alabama Supreme Court has held that a plaintiff is
required to prove an underlying common-law tort in order
to prevail in a claim for negligent supervision, training
or retention."). Moreover, the Eleventh Circuit Court of
supportive of the idea that this claim can be sustained
only where there has been an underlying state tort.
Kurtts v. Chiropractic Strategies Group, Inc., 481 F.
App'x 462, 469 (11th Cir. 2012) (citing Jones to explain
that, in cases where there has been no evidence that a
explained that an employer may not be held directly liable
on a theory of negligent supervision or training because
no [underlying] tort occurred.").
While neither Kurtts
nor any Alabama case expressly forecloses the possibility
that the claim of negligent or wanton hiring, training,
and supervision could be based on some employee wrongdoing
other than that prohibited by a common-law tort, the
conventional wisdom of the federal courts appears to be
that a state tort must underlie this type of claim.
In any event, even if Guy could convince this court
that a statutory wrong could form the basis for this claim,
this claim should still be dismissed.
The Alabama statute
that Guy cites as a basis for this claim mandates that,
under certain circumstances, the USERRA and the Solders’
and Sailors’ Civil Relief Act apply to members of the
Alabama National Guard, including when they are called to
active duty by the Governor rather than the President. The
full text of the statute reads:
“Whenever any active member of the
Alabama National Guard, in time of war,
armed conflict, or emergency proclaimed
by the Governor or by the President of
the United States, shall be called or
ordered to state active duty for a period
of 30 consecutive days or more or
federally funded duty for other than
training, the provisions of the SSCRA and
the Uniformed Services Employment and
Reemployment Rights Act shall apply.”
1975 Ala. Code § 31-12-2.
However, while the statute provides members of the
Alabama National Guard like Guy the protections outlined in
USERRA, nowhere does it suggest that it could form the
basis of a negligence or wantonness claim of the sort that
Guy now asserts.
As the statute does not provide for this
sort of action, the court would overreach to conclude today
that it can form the basis of a claim of common-law
negligent and wanton hiring, training, and supervision.
The court finds an analogy in a case that Guy himself
cites in his brief: Johnson v. Brunswick Riverview Club,
Inc., 39 So.3d 132 (Ala. 2009).
In that case, Johnson
supervision against a bowling alley after it served her son
alcoholic drinks and he was killed in his automobile
shortly after he drove away, intoxicated.
alleging the negligent dispensing of alcohol, a claim
countered that her claim was based on the bowling alley’s
carrying out duties which are required by statute ... which
... [the] employees ignored in the present case.”
(quotations and citations omitted).
The court sided with
the bowling alley, reasoning that Johnson’s claim “s[ought]
dispensing of alcohol, and ... attempts to do so outside
the Dram Shop Act,” which is the exclusive remedy for the
unlawful dispensing of alcohol.
Id. at 140.
negligence cause of action onto a statute that already
includes its own set of remedies and means of obtaining
them and a statute, in the absence of which, no arguably
comparable common-law claim would exist.
persuaded that he may do so.
The court is not
The USERRA and the Alabama
law applying it to Alabama National Guard members address,
to the extent their drafters wished, how employers must
conduct themselves with regard to members of the Alabama
Guy's additional examples of cases where a claim of
negligent or wanton hiring, training, and supervision was
purportedly based on statutory violations are inapposite.
For instance, Guy cites Ex parte Ridgeview Health Care
Center, Inc., 786 So.2d 1112 (Ala. 2000), in support of his
argument that this type of claim can be based on violation
of a statute.
However, this case merely cited statutes,
the Alabama Medical Liability Acts, that placed limits on
allowable discovery in the case; there is nothing in the
negligent or wanton hiring, training, and supervision.
In sum, even if Jones did create an opening for a claim
against employers for the negligent or wanton hiring,
training, and supervision of their employees based on their
common-law torts, this court cannot conclude that the
statute that Guy cites would be such a basis.
Moreover, because there is no allegation that Alabama
Power engaged in negligent hiring, the claim should also be
dismissed to the extent that it is based on negligent
Accordingly, for the above reasons, it is ORDERED that
defendant Alabama Power Company’s motion to dismiss (doc.
no. 7) is granted as to plaintiff William A. Guy’s claim of
negligent or wanton hiring, training, and supervision and
DONE, this the 29th day of July, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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