Collins v. Honda Manufacturing of Alabama LLC et al

Filing 51

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 11/9/16. (MRR, )

FILED
2016 Nov-09 AM 10:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

EDWARD L. COLLINS, JR.,
Plaintiff,
v.
HONDA MANUFACTURING
OF ALABAMA, LLC, et al.,
Defendants.

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Case No. 7:15-cv-02329-TMP

MEMORANDUM OPINION
With leave of the court, the plaintiff filed his Third Amended Complaint on
May 9, 2016. (Doc. 39). On May 23, 2016, defendants Honda Manufacturing of
Alabama, LLC (“HMA”); American Honda Motor Co., Inc. (“American Honda”);
and Honda North America, Inc. (“HNA”) (together “defendants”), filed a Motion
to Dismiss the Third Amended Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 41(b). (Doc. 43). The parties consented to dispositive
jurisdiction by the undersigned (doc. 14); accordingly, the court enters the
following Order.

I.

Shotgun Pleading

The defendants argue that the plaintiff’s Third Amended Complaint is an
impermissible shotgun pleading. In the Order granting the plaintiff leave to file a
Third Amended Complaint, the court instructed the plaintiff to ensure compliance
with Rules 8 and 10 of the Federal Rules of Civil Procedure, and to avoid filing a
“shotgun pleading,” as such documents are explained in Weiland v. Palm Beach
Cty. Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015). The court directed the
plaintiff to allege discriminatory acts the plaintiff endured with “reasonable
specificity.” The plaintiff filed his Third Amended Complaint within the timeperiod allowed by the court’s order.
The plaintiff made sufficient clarifications in his Third Amended Complaint to
overcome previous violations of the pleading guidelines set out in Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). Accordingly,
the defendant’s motion to dismiss on the grounds that the Third Amended
Complaint is a “shotgun pleading” is DENIED.

II.

Employment Relationship

The defendants assert that the plaintiff has not sufficiently alleged an
employment relationship between himself and American Honda and HNA.
2

According to the defendants, neither American Honda nor HNA ever was the
employer of the plaintiff, and the plaintiff has failed to alleged facts sufficient to
demonstrate an employment relationship. It is not disputed that the plaintiff was
an employee of HMA. 1 The dispute lies in whether HMA, American Honda, and
HNA are a single or joint employer for purposes of Title VII liability.
The Eleventh Circuit addressed single or joint employer status in McKenzie v.
Davenport-Harris Funeral Home, which states, in relevant part:

Our role is to decide whether McKenzie presented sufficient evidence
to create a genuine issue concerning whether Davenport-Harris and
Protective should be treated as a single entity. The predominant trend
in determining whether two businesses should be treated as a single or
joint employer under § 2000e(b) is to apply the standards promulgated
by the National Labor Relations Board (NLRB). See Equal
Employment Opportunity Comm’n v. Wooster Brush Co. Employees
Relief Ass’n, 727 F.2d 566, 572 (6th Cir. 1984; Childs v. Local 18,
Int’l Bhd. Of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir. 1983);
Trevino, 701 F.2d at 404; Mas Marques v. Digital Equip. Corp., 637
F.2d 24, 27 (1st Cir. 1980); Baker, 560 F.2d at 392; Fike v. Gold Kist,
Inc., 514 F. Supp. 722, 726 (N.D. Ala.), aff’d, 664 F.2d 295 (11th Cir.
1981). The NLRB factors include: (1) interrelation of operations; (2)
centralized control of labor relations, (3) common management, and
(4) common ownership or financial control. The showing required to
warrant a finding of single employer status has been described as
“highly integrated with respect to ownership and operations.” Fike,
514 F. Supp. at 726.

1

HMA has stipulated that it is plaintiff’s sole employer. (Doc. 43, p. 6). The plaintiff contends,
however, that HMA, HNA, and American Honda are a single employer.
3

834 F.2d 930, 933 (11th Cir. 1987).
In the Third Amended Complaint, the plaintiff asserts that HMA is an
Alabama limited liability company employing more than 50 employees, and the
plaintiff, for the relevant period, was employed by HMA. (Doc. 39, ¶¶ 5-6).
According to the plaintiff, American Honda was the sole member of the HMA
limited liability company. (Doc. 39, ¶ 7). As such, the plaintiff alleges that
American Honda “is an affiliate, subsidiary, holding company, shell, and/or
otherwise associated entity and/or alter-ego of HMA. . . .” Id. The plaintiff further
claims that HNA also is “an affiliate, subsidiary, holding company, shell, or
otherwise associated entity and/or alter-ego of HMA.” (Doc. 39, ¶ 8). According
to the plaintiff, HMA is merely an instrumentality of American Honda and HNA
and, therefore, the three companies operate, for all intents and purposes, as a single
entity. According to the plaintiff, “many of the HMA’s, HNA, and American
Honda’s policies, procedures, benefits, and software are shared among and across
their affiliated entities and employees.” (Doc. 39, ¶ 15). American Honda is
alleged to be the national parent company of HMA and HNA, “owns all or most of
the capital stock of HMA,” and, “through HNA, is responsible for the formation of
HMA.” (Doc. 39, ¶¶ 16-17).

4

The defendants argue that the plaintiff failed to show that American Honda or
HNA supervised the plaintiff’s employment or played a role in any adverse
employment decisions.

(Doc. 43, p. 8).

According to the defendants, the

assertions by the plaintiff are too vague to establish such corporate relationships
that constitute a single or joint employer. When evaluating a motion to dismiss,
the court is required to operate “on the assumption that all the allegations in the
complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 1965, 167 L. Ed. 2d 929, citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508, n. 1, 122 S. Ct. 992, 152 L. Ed. 2d 1(2002). Accordingly, the allegations
set forth in the Third Amended Complaint regarding the operating structure of
HMA, HNA, and American Honda present a sufficient question of fact regarding
the status of those entities as employers that the defendant’s motion to dismiss on
this ground is DENIED.

III.

Failure to State a Claim

The defendants assert that several of the plaintiff’s allegations fail to state a
claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). Before the
Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007), a court could dismiss a complaint only where it was
5

clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations, as set forth in Conley v. Gibson, 355 U.S. 41, 78 S.
Ct. 99, 2 L. Ed. 2d 80 (1957). The well-established Rule 12(b)(6) standard set
forth in Conley was expressly rejected in Twombly when the Supreme Court
examined the sufficiency of a plaintiff’s complaint and determined:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to
relief,” in order to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests,” Conley v. Gibson, 355
U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the “grounds” of
his “entitle[ment] to relief” requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not
do. Factual allegations must be enough to raise a right to relief above
the speculative level.

550 U.S. at 555 (citations omitted). The court went on to criticize Conley, stating
that “[t]he ‘no set of facts’ language has been questioned, criticized, and explained
away long enough” by courts and commentators, and “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.”
6

Twombly, 550 U.S. at 562-63.

The

Supreme Court emphasized, however, that “we do not require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” 550 U.S. at 570. The Supreme Court expanded on the
Twombly standard when it decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949-50, 173 L. Ed. 2d 868 (2009), reiterating the Twombly determination
that a claim is insufficiently pleaded if it offers only “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action.” Iqbal, 129 S. Ct. at
1949. The Court further explained:

Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. . . . Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not “show[n]”—“that the pleader is
entitled to relief.”

7

Iqbal, 129 S. Ct. at 1949-50 (citation omitted). See also Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252 (11th Cir. 2009) (“The mere possibility the defendant acted
unlawfully is insufficient to survive a motion to dismiss” and “the well-pled
allegations must nudge the claim ‘across the line from conceivable to plausible’”
(quoting Iqbal and Twombly)).

A. Count Four: Reprisal for Engaging in Protected Activities
The defendants contend that the plaintiff failed to properly identify the legal
theory under which he brings Count Four and that, in any case, the claim is
duplicative of Counts Two and Eight and should be dismissed on that basis. Count
Four states that the “defendants’ conduct, by and through HMA, as alleged above
constitutes retaliation against [] Collins because he engaged in protected
activities.” (Doc. 23, ¶ 105). The plaintiff asserts that the “reprisal” claim in
Count Four is based on retaliatory conduct taken against the plaintiff when he filed
internal complaints and an EEOC charge after experiencing discrimination based
on his race and sex. (Doc. 45, p. 21).
Count Four does not set out specific protected actions in which the plaintiff
participated and for which he was retaliated against, but the count does cite to
several paragraphs in the fact section of the Third Amended Complaint for support:
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paragraphs 1, 5-12, 22-46, 55-67, and 80. (Doc. 39, ¶ 103). The plaintiff cites the
same paragraphs in Count Two: Retaliation-Race, to support his claim that he was
retaliated against when he complained about being discriminated against based on
his race. (Doc. 39, ¶ 85). Later, in Count Eight: Retaliation-Sex, the plaintiff cites
paragraphs 1, 5-12, 22-25, 27-31, 33, 36-37, 39-46, and 80. (Doc. 39, ¶ 130). All
of the paragraphs cited by the plaintiff in Count Eight also are cited in Count Two.
The plaintiff does not explain in his response to the motion to dismiss why Count
Four is different from Counts Two or Eight. Rather, Count Four appears to arise
out of the exact same conduct at issue in Counts Two and Eight. Neither does the
plaintiff provide the court with a separate legal or statutory basis giving rise to
Count Four. Accordingly, the court agrees with the defendants that Count Four is
duplicative of Counts Two and Eight and is due to be dismissed.

B. Count Five: Hostile Work Environment – Title VII and Section
1981
The defendants assert that plaintiff’s Count Five is due to be dismissed because
the plaintiff failed to exhaust his administrative remedies with regard to his claim
of a Hostile Work Environment due to racial harassment.

Alternatively, the

defendants argue that Count Five fails to meet the Twombly and Iqbal pleading

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requirements, and is due to be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
The plaintiff asserts that the hostile work environment he was subjected to was
based on his race. He does not contend that the sex discrimination he experienced
constituted a hostile work environment. (Doc. 39, ¶¶ 107-115). The plaintiff’s
hostile work environment claim is bought pursuant to Title VII and § 1981. The
plaintiff filed a Charge of Discrimination with the EEOC on June 30, 2015, which
states as follows:

I am Black. I was hired by [HMA] on September 17, 2001, as a
Process Associate. I was later promoted to Engineer Associate.
On April 13, 2015, I made a complaint to Human Resources that
Doug East, Team Manager, was treating me differently than other
White Engineer Associates. On May 29, 2015, I was informed that
Human Resources had concluded the investigation. Later that day,
Mr. East presented me a Performance Evaluation with a rating of
“Below Expectations.” Prior to my complaint to Human Resources, I
have received “Meets Expectations” evaluations.
I believe I was discriminated against [because of] my race, Black[,]
and retaliated against in violation of Title VII of the Civil Rights Act
of 1964, as amended.

10

(Doc. 39-4, p. 4). On December 28, 2015, the plaintiff filed another Charge of
Discrimination with the EEOC which states as follows:

Honda has engaged in systemic, company-wide discriminatory
treatment of not paying me, an African-American, male employee
holding the title of Engineering Associate (a Honda classified “Level
II” position), the same pay as it pays for women and Caucasian male
employees, similarly situated, and performing a job that is
substantially equal to mine. These events have taken place over the
duration of my employment with Honda.

(Doc. 39-4, p. 10).
The Eleventh Circuit has described the claim of hostile work environment under
Title VII as an “environment in which ‘a series of separate acts . . . collectively
constitute one “unlawful employment practice.”’ As opposed to ‘[d]iscrete acts
such as termination, failure to promote, denial of transfer, or refusal to hire,’ a
hostile work environment claim addresses acts ‘different in kind’ whose ‘very
nature involves repeated conduct,’ such as ‘discriminatory intimidation, ridicule,
and insult.’ Thus, these ‘claims are based on the cumulative effect of individual
acts.’”

McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (internal

citations omitted). In the plaintiff’s EEOC claims, he states that he was “treated
differently” than Caucasian employees. He does not specify in what way this
11

different treatment revealed itself, but he does not only claim that he was subject to
a discrete act or acts such as termination. The claims alleged in the EEOC claim
were sufficient to put the defendants on notice of a possible hostile work
environment claim. The court finds that the plaintiff exhausted his administrative
remedies with regard to his Title VII hostile work environment claim.
The defendants also argue that the plaintiff’s hostile work environment claim
was insufficiently pleaded under the Twombly and Iqbal standards of pleading. In
Count 5, the plaintiff states that he “was subjected to harassment” that was
“motivated by [his] race,” and that he was treated differently from Caucasian
employees. (Doc. 39, ¶¶ 109-110). He cites fact paragraphs 1, 5-12, 22-46, 55-67,
and 80 in support of his claim. Of the paragraphs cited by the plaintiff, paragraphs
1, and 5-12, are jurisdiction statements and descriptions of the parties.

In

paragraph 24, the plaintiff asserts that East, Collins’ supervisor, “has made
derogatory and racially charged comments” to at least one other employee about
Collins. (Doc. 39, ¶ 24). The plaintiff also asserts that he was “openly belittled
and mocked in the presence of other employees” and, specifically, was called
“ignorant” by East several times in front of other employees. (Id. at ¶¶ 26, 34).
The plaintiff also alleges that he was generally denied promotions and training and

12

was “written-up” for a minor violation of the attendance policy in retaliation for
complaining about racially discriminatory behavior.
As stated previously herein, at this stage in the proceedings, the court is
required to operate “on the assumption that all the allegations in the complaint are
true.” Bell Atlantic Corp. v. Twombly, supra. With that understanding, the
plaintiff has pleaded a sufficient question of fact regarding whether he was
subjected to a hostile work environment. Therefore, the defendants’ motion to
dismiss is due to be denied as to Count Five.

C. Count Six: Equal Pay
The defendants argue that Count Six is due to be dismissed for failure to state a
claim. (Doc. 43, p. 12). The Equal Pay Act (“EPA”) states, in relevant part:

No employer having employees subject to any provision of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex by
paying wages to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the opposite sex in
such establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are
performed under similar working conditions, except where such
payment is made pursuant to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or quality of
production; or (iv) a differential based on any other factor other than
sex: Provided, That an employer who is paying a wage rate
13

differential in violation of this subsection shall not, in order to comply
with the provisions of this subsection, reduce the wage rate of any
employee.

29 U.S.C. § 206(d)(1).
According to the defendants, Count Six consists only of “bald allegations” that
female employees were paid more than male employees, and lacks sufficient
factual support to support an EPA claim. (Doc. 43, p. 12). At the relevant time,
the plaintiff was employed by HMA as an Engineer Associate. He asserts that
different pay scales and ranges are applied to employees with the same job title
based on the “level and step” of the employee. (Doc. 39, ¶ 71). Engineer positions
involve equal work, skill, effort, and responsibility, but the defendant’s application
of the level and step system results in higher pay for female employees. (Id. at ¶¶
72-73).

He asserts that at least one female Engineer Associate “has less

experience, skill, and training than Collins, but receives a higher compensation.”
(Id. at ¶ 24). He also claims that he makes less money than similarly situated white
female employees with the same job title who are known as “Doug’s Angels,” a
nickname given to them by the plaintiff’s supervisor. (Id. at 78).
Again, the court must take the plaintiff’s factual assertions as true. The plaintiff
stated that he and “Doug’s Angels” are employed as Engineer Associates, which is
14

the same occupation that requires similar skills, work, and responsibility. He
further claims that these female employees earn more money than he does due to
the defendants’ discriminatory application of the level and step system, which
serves to put female employees at a higher pay grade, even when these employees
have less experience, skill, or training than the plaintiff. Based on the plaintiff’s
factual allegations, taken as true, the defendants’ motion to dismiss Count Six of
the Third Amended Complaint is due to be denied.

D. Count Nine: Intentional Infliction of Emotional Distress and
Outrage
Count Nine sets out a claim under Alabama law for intentional infliction of
emotional distress, also known as the tort of outrage. (Doc. 39, p. 26). The
plaintiff asserts that the defendants “acted in a manner in which they intended to
cause Collins distress and/or knew the actions would cause Collins distress.” (Id.
at ¶ 138). The elements of intentional infliction of emotional distress, also known
as the tort of outrage, are as follows:

(1) the actor intended to inflict emotional distress, or knew or should
have known that emotional distress was likely to result from his
conduct; (2) the conduct was extreme and outrageous; (3) the
defendant’s actions caused the plaintiff distress; and (4). . . the distress
was severe. With respect to the conduct element, this court has stated
15

that the conduct must be ‘so outrageous in character and so extreme in
degree as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized society.

Thomas v. Williams, 21 So. 3d 1234, 1237-38 (Ala. Civ. App. 2008), quoting
Gunter v. Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1988); see also American
Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). “[T]he tort of
outrage is ‘a limited remedy to be applied only in flagrantly egregious
circumstances.’” Gunter v. Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1988),
quoting Turner v. Hayes, 719 So. 2d 1184, 1187 (Ala. Civ. App. 1997), aff’d in
pertinent part, 719 So. 2d 1190 (Ala. 1998).

The tort of outrage . . . is so limited that this court has
recognized it in regard to only three kinds of conduct (1)
wrongful conduct in the family-burial context, Whitt v. Hulsey,
519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to
coerce an insurance settlement, National Sec. Fire & Cas. Co.
v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual
harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala.
1989). See also Michael L. Roberts and Gregory S. Cusimano,
Alabama Tort Law, § 23.0 (2d ed. 1996).
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). This is not to say,
however, that the tort of outrage is viable in only the three
circumstances noted in Potts. Recently, this Court affirmed a
judgment on a tort-of-outrage claim asserted against a family
physician who, when asked by a teenage boy’s mother to counsel the
16

boy concerning his stress over his parents’ divorce, instead began
exchanging addictive prescription drugs for homosexual sex for a
number of years, resulting in the boy’s drug addiction. See O’Rear v.
B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of
outrage is viable only when the conduct is “ ‘so outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized society.’ ” Horne v. TGM Assocs., L.P., 56
So. 3d 615, 631 (Ala. 2010)(quoting Inmon, 394 So. 2d at 365).

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011).
The plaintiff asserts that he was paid inequitably in comparison with similarly
situated female and/or white employees.

He also asserts that he was denied

developmental and training opportunities, reassigned to an undesirable location,
given undesirable job duties, threatened with a lower performance rating, denied
job opportunities, and belittled and mocked in the presence of other employees.
These allegations, as negative as they are, do not rise to the level of outrageous
conduct, and the plaintiff has not stated sufficient factual basis to assert a claim
that the conduct of which he complains is so egregious that it is intolerable in
civilized society. Even presuming the allegations to be true, they do not rise to the
level of an outrage claim. Accordingly, the defendants’ motion to dismiss is due to
be granted as to plaintiff’s Count Nine.

17

E. Count Ten: Negligent and/or Wanton Hiring, Retention, Training,
and Supervision
In Count Ten of the Third Amended Complaint, the plaintiff asserts that the
defendants violated their duty of care to the plaintiff by negligently and/or
wantonly hiring employees who behaved in a discriminatory manner, particularly
the plaintiff’s supervisor, Doug East, and that the defendants negligently and/or
wantonly retained such employees or failed to train and supervise them. The
plaintiff does not dispute that, pursuant to Alabama law, a claim of negligent
and/or wanton hiring, retention, training, and supervision must be predicated on an
underlying tort committed by a co-employee. (Doc. 45, p. 26). Judge Smith
addressed the requirement in McCaulley v. Harvard Drug Group, LLC, which
states, in pertinent part:

[The defendant] argues that the claim must be dismissed because it is
not based upon an independently actionable Alabama tort. Persuasive
authority from every federal district court in Alabama supports [the
defendant’s] argument.
First, in Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp. 2d
1314 (N.D. Ala. 2002), this court granted summary judgment on a
claim for negligent hiring, training, supervision, and retaliation based
on similar allegations in the context of a pregnancy discrimination
claim. The court stated:
In order to establish a claim against an employer for negligent
supervision, training, and/or retention, the plaintiff must
18

establish that the allegedly incompetent employee committed a
common-law, Alabama tort. Stevenson v. Precision Standard,
Inc., 762 So. 2d 820, 824 (Ala. 1999) (citing Big B, Inc., v.
Cottingham, 634 So. 2d 999 (Ala. 1993)). As Alabama does
not recognize a common-law tort for sex discrimination in
employment, the Court finds that Plaintiff cannot maintain an
action for negligent supervision, training, and/or retention based
upon conduct that is employment discrimination, but does not
support a common-law tort.
Thrasher, 195 F. Supp. 2d at 1320 (footnote omitted).
...
Decisions from the Middle and Southern districts of Alabama are in
agreement. See, e.g., Guy v. Alabama Power Co., No. 2:13cv8-MHT,
2013 WL 3929858, *2 (M.D. Ala. July 29, 2013) (“[I]t is clear that
the employee’s wrongdoing must be based on state, and not federal,
law. Otherwise the tort of negligent or wanton hiring, training, and
supervision could be a corridor through which federal laws
prohibiting various types of conduct by employees could be
incorporated into state law as a privately redressable requirement on
employers to stop their employees from engaging in such conduct.”)
(alteration supplied); Rabb v. Georgia Pacific, LLC, No. CA 09-0420C, 2010 WL 2985575, *16 (S.D. Ala. July 26, 2010) (“because
Alabama does not recognize a common-law tort for race
discrimination in employment, this Court finds that Rabb cannot
maintain an action for negligent supervision ‘based upon conduct that
is employment discrimination, but does not support a common-law
tort.’”) (quoting Thrasher, 195 F. Supp. 2d at 1320).
Here, plaintiff’s claim for negligent hiring, training, supervision, and
retention is based entirely on the same alleged conduct that supports
her claims for race discrimination, hostile work environment, and
retaliation under Title VII and 42 U.S.C. § 1981. Plaintiff does not
allege any independent conduct that would support an Alabama tort
law claim. Accordingly, her negligent hiring, training, supervision,
and retention claim must be dismissed.
19

McCaulley v. Harvard Drug Group, LLC, 992 F. Supp. 2d 1192, 1198-99 (N.D.
Ala. 2014) (emphasis in original) (internal footnotes omitted).
In the instant case, the plaintiff attempts to rest his claim for negligent and/or
wanton hiring, training, supervision, and retention solely on the Alabama tort of
intentional infliction of emotional distress, also known as the tort of outrage. As
determined above, the plaintiff’s factual allegations, taken as true, are not
sufficient to support an outrage claim. Because the plaintiff does not allege an
independent, actionable Alabama tort, his claim of negligent and/or wanton hiring,
training, supervision, and retention cannot stand.

The defendants’ motion to

dismiss is due to be granted as to plaintiff’s Count Ten.

F. Count Eleven: Alabama Workers’ Compensation Act
In the final count of his Third Amended Complaint, the plaintiff asserts a claim
pursuant to § 25-5-8 of the Alabama Workers’ Compensation Act. (Doc. 39, p.
28). The plaintiff argues that, though the defendants “had immediate legal and
actual notice or knowledge of” the plaintiff’s work-related injuries and his claim
for workers’ compensation benefits, the defendants “have refused and declined to
20

pay Collins benefits due under the Alabama Workers’ Compensation Act.” (Doc.
39, ¶ 160). As relief under this claim, the plaintiff seeks benefits under the
Workers’ Compensation Act, fifteen percent of unpaid installments, and further
benefits. The plaintiff also asks the court to “adjudicate Plaintiff’s degree of
disability and to award Plaintiff compensation in the correct amount based on his
average weekly wage.” (Doc. 39, ¶ 155).
The plaintiff argues that the court should exercise § 1367 supplemental
jurisdiction over this action. The defendants argue, however, that supplemental
jurisdiction is inappropriate as to the workers’ compensation claim because the
claim is not subject to a common nucleus of operative fact and, in any event, would
have to be separated for trial purposes, as workers’ compensation claims are not
subject to jury trials.

Section 1367 of the United States Code provides that

supplemental jurisdiction is appropriate “in any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1376(a).
In the instant case, the plaintiff claims that he was injured on the job while
working at the HMA facility in Lincoln, Alabama. The plaintiff immediately
21

reported to the on-site medical clinic, where he was treated with Tylenol and told
to return to work. He asserts that he reported to work following the injury for
approximately 20 days before he was sent by HMA to see a physician. The
plaintiff experienced temporary total disability and is permanently disabled to
some degree. The plaintiff asks the court to “adjudicate Plaintiff’s degree of
disability and to award Plaintiff compensation in the correct amount based on his
average weekly wage and to have his attorney’s fee approved by this Court as []
allowed by law.” (Doc. 39, ¶ 155). The plaintiff’s workers’ compensation claim is
not “part of the same case or controversy,” as the plaintiff’s other remaining
claims.
The plaintiff’s state law claims of outrage and negligent and/or wanton
hiring have been dismissed by the court. The plaintiff’s remaining federal claims
are: Racial Discrimination in Violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e. et seq., 42 U.S.C. § 1981, et seq.; Retaliation – Race; Section
1981a – Discrimination; Hostile Work Environment – Title VII and Section 1981;
Equal Pay; Family Medical Leave Act – 29 U.S.C. § 2617(a); and Retaliation –
Sex. The only remaining claim that may be factually similar to the workers’
compensation claim is the plaintiff’s claim under the Family Medical Leave Act

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(“FMLA”). 2 However, in determining an FMLA claim, it is not at issue the extent
to which the defendant was injured or his current disability, but only whether his
rights under the FMLA were afforded to him. Furthermore, the facts surrounding
the plaintiff’s workplace injury are tangentially related, at best, to his claims of
discriminatory and retaliatory behavior.

Therefore, the court finds that the

plaintiff’s workers’ compensation claim is not subject to supplemental jurisdiction
under 28 U.S.C. § 1367(a), as it does not “form part of the same case or
controversy.”
Furthermore, even if the plaintiff’s workers’ compensation claim is a part of the
same case or controversy, it is a specialized question of state law that is best
answered in state court, and therefore subject to the exception to supplemental
jurisdiction, which states as follows:

(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,

2

Under the same FMLA count, the plaintiff argues both that his rights under FMLA were
interfered with and that he was retaliated against. (Doc. 39, ¶¶ 127-128).
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(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.

28 U.S.C. § 1367(c). Although workers’ compensation claims are not novel, the
determination of temporary or permanent disability and the amount payable to a
claimant is a complex issue that normally falls within the purview of the state
courts, and such a decision is better left to the state courts.
Because the plaintiff’s workers’ compensation claim is not part of the same
case or controversy and, even if it were deemed to be so, is a complex issue of state
law, the plaintiff’s workers’ compensation claims is due to be dismissed without
prejudice.

CONCLUSION
In conclusion, the defendants’ Motion to Dismiss the Plaintiff’s Third Amended
Complaint is due to be DENIED to the extent that the defendant argues that the
Third Amended Complaint is a shotgun pleading and that the plaintiff has failed to
establish an employment relationship with the defendants and as to Counts Five
and Six. The motion is due to be GRANTED as to: Count Four, Count Nine,
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Count Ten, and Count Eleven.

A separate Order will be entered

contemporaneously herewith.

DONE and ORDERED on November 9, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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