Milazzo v. Title Cash of Huntsville

Filing 43

MEMORANDUM OPINION AND ORDER: 25 , MOTION for Summary Judgment filed by Title Cash of Huntsville, is GRANTED IN PART AND DENIED IN PART. Dispositive motions ddl extended to 8/10/2012, as further set out in order. Final Pretrial Conference reset for 10/4/2012 02:15 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon and Bench Trial set for 11/5/2012 at 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 07/10/12. (CVA)

FILED
2012 Jul-10 PM 03:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JANICE LANE MILAZZO,
Plaintiff,
vs.
TITLE CASH OF
HUNTSVILLE,
Defendant.

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Civil Action Number
2:11-cv-1858-AKK

MEMORANDUM OPINION AND ORDER
Plaintiff Janice Lane Milazzo (“Milazzo”) alleges claims for race and age
discrimination1 against Title Cash of Huntsville (“Title Cash”) in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and a state law
claim for intentional infliction of emotional distress. Doc. 1. Before the court is
Title Cash’s Motion for Summary Judgment on Milazzo’s Title VII and outrage
claims alleging that these claims are due to be dismissed because Milazzo’s (1)
Title VII claim is time barred as she failed to file her Equal Employment
Opportunity Commission (“EEOC”) charge within 180 days from her September
12, 2008, termination, and (2) tort of outrage claim does not meet the outrageous

1

The court granted Title Cash’s motion to dismiss Milazzo’s sex discrimination claim.
Doc. 16.
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conduct threshold. Doc. 25. After considering the pleadings, evidentiary
submissions, and the relevant law, the court GRANTS the motion as it relates to
the outrage claim and DENIES it as it relates to the Title VII claim.
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To
support a summary judgment motion, the parties must cite to “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c). Moreover, “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation

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marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Furthermore, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
II.

TITLE VII CLAIM
As it relates to Milazzo’s Title VII claim, it is undisputed that Milazzo

signed her charge on March 9, 2012, doc. 41 at 4 ¶9; doc. 41-1 at 3 ¶11, and
Milazzo alleges further that she mailed it that same day, id., i.e., 178 days after her
termination. However, the EEOC received the charge on March 16, 2009, doc. 26-

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1 at 2, i.e. after the 180th day. Based on the case law, absent equitable tolling,
Milazzo’s charge is untimely. See, e.g., Taylor v. Gen. Tel. Co., 759 F.2d 437, 440
(5th Cir. 1985) (“Our review of cases construing Title VII filing provisions leads
inescapably to the conclusion that ‘mailing’ may not be construed as ‘filing’ for
purposes of Title VII.”).
Nonetheless, the court will not dispose of Milazzo’s claim on timeliness
grounds at this juncture and will carry this issue with the merits portion of Title
Cash’s motion for summary judgment. The court declines to grant Title Cash’s
motion, in part, because Milazzo’s untimeliness may have been the result of
excusable neglect because the EEOC was “sufficiently misleading” to cause
Milazzo to believe that she activated the Title VII process when she returned her
charge by mail. See Lawrence v. Cooper Cmtys., Inc., 132 F.3d 447, 451 (8th Cir.
1998). Milazzo completed an EEOC intake questionnaire on February 23, 2009.
Doc. 26-2. On March 5, 2009, six days before the 180-day limitations period, the
EEOC mailed Milazzo a charge instructing her to review, sign, and return it “as
soon as possible.” Doc. 26-3 at 2. Milazzo complied by mailing her charge on
March 9, 2009. Therefore, the EEOC may have led Milazzo “into reasonably
believing” that submitting her charge as soon as possible – which she did – was
sufficient. To the extent she failed to timely file her charge, such untimeliness

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may have been based on the EEOC’s instructions and Milazzo’s reasonable belief
that she had completed the requirements to file a charge.2 Lawrence, 132 F.3d at
452. For these reasons, Defendant’s motion for summary judgment on Milazzo’s
Title VII claim is DENIED without prejudice.3
III.

TORT OF OUTRAGE CLAIM
The court turns now to the tort of outrage claim, which requires proof that

“(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; and (3) the distress was severe.” Perkins v. Dean, 570
So. 2d 1217, 1219 (Ala. 1990) (citations omitted). Title Cash contends that
Milazzo failed to allege facts which rise to the level of outrageous conduct as
determined by the Alabama Supreme Court in Potts v. Hayes, 771 So. 2d 462 (Ala.
2000). Doc. 25 at 10. Title Cash is correct that “[t]he tort of outrage is a very

2

To the extent that Milazzo has any evidence from the EEOC to support that the EEOC
misled her, she should include it in the evidentiary materials she submits in opposition to the
motion for summary judgment Title Cash intends to file on the merits.
3

Title Cash does not have to raise the timeliness issue again when it files its merits
motion. The court will carry this argument forward and will address it again in conjunction with
the other arguments Title Cash raises in its merits motion. However, since the timeliness issue is
one Title Cash raised in its Answer, doc. 13 at 19, and thus could have raised in a motion to
dismiss, the court will reduce Title Cash’s page limits to reflect that it has already raised two
issues on summary judgment – i.e., timeliness and outrage. To allow Title Cash to have the full
complement of pages for its merits motion would essentially give parties the unfettered right to
circumvent page limitations by bifurcating their arguments into two or more separately filed
motions. The court declines to sanction such a practice.
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limited cause of action that is available only in the most egregious circumstances.”
Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993); doc.
25 at 9. Indeed, as Title Cash points out, the Alabama Supreme Court has
generally recognized outrage claims for “(1) wrongful conduct in the family-burial
context, (2) barbaric methods employed to coerce an insurance settlement, and (3)
egregious sexual harassment.” Potts, 771 So. 2d at 465 (internal citations
omitted). However, this court disagrees that outrage claims are cognizable only in
these circumstances. In fact, the Alabama Supreme Court recently explained,
That 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
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. . . . 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.
Little v. Robinson, 72 So. 3d 1168, 1173 (Ala. 2011) (internal quotation marks and
citation omitted) (emphasis added).
Although the court disagrees with Title Cash that outrage claims are limited
solely to the three circumstances outlined in Potts, the court agrees with Title Cash
nonetheless that Milazzo has failed to plead conduct that rises to the standard
necessary for an outrage claim. See id.; Potts, 771 So. 2d at 465. Milazzo alleged
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that Title Cash discriminated against her by telling her that (1) the area manager
wanted to hire young Hispanic women instead of Milazzo, (2) the district manager
would “get rid” of her by October to hire a young Hispanic woman, (3) the area
manager would make it hard for her and ultimately discharge her if she did not
resign, and (4) Title Cash was treating her differently because she was “old, fat,
and ugly.” Doc. 1 at 3; doc. 26-1 at 2. Milazzo alleged also that Title Cash
increased her work load, “scrutinized [her work] more closely than the younger
employees,” and “belittled” her in front of customers and employees. Id. While
the alleged conduct if true has no place in the work place, nonetheless, because the
tort of outrage is not a “panacea for all of life’s ills,” U.S.A. Oil, Inc.v. Smith, 415
So. 2d 1098, 1101 (Ala. Civ. App. 1990), these allegations fail to rise to the level
of being “utterly intolerable and atrocious” to sustain an outrage claim. Little, 72
So. 3d at 1173. The alleged conduct, while disturbing, is not so “severe that no
reasonable person could be expected to endure it.” Am. Road Serv. v. Inmon, 394
So.2d 361, 365 (Ala. 1981).
As to Milazzo’s contention that Rice v. United Ins. Co. of Am., 465 So. 2d
1100 (Ala. 1984), supports her assertion that some types of sexual harassment are
sufficient to support a tort of outrage claim, doc. 41 at 12, the allegations here are
simply not similar to those in Rice. In Rice, after plaintiff informed her employer
about her pregnancy, plaintiff’s supervisor “organized” a coup over several
months and involved several individuals to force plaintiff to take disability leave
by (1) falsely accusing and ridiculing plaintiff in the presence of others, (2)

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pressuring plaintiff’s husband to encourage her to take disability leave, and (3)
withholding “vital business information” from plaintiff, which lead ultimately to
plaintiff’s wrongful termination and subsequent miscarriage. Rice. 465 So. 2d at
1102. Because Milazzo’s allegations are not remotely similar to those in Rice,
Milazzo’s reliance on Rice misses the mark. Therefore, as a matter of law, the
court GRANTS Title Cash’s motion on Milazzo’s tort of outrage claim.
The dispositive motion deadline is extended to August 10, 2012; responses
are due August 31, 2012; and replies, if any, are due September 11, 2012.
Consistent with footnote 3, supra, since Title Cash has used 12 pages for its main
brief, it has 18 pages for its remaining arguments. Likewise, Milazzo has 16 pages
remaining for her response. Finally, Title Cash has 5 pages remaining for its
reply, if any. The court resets this matter for a Pretrial Conference on October 4,
2012, at 2:15 p.m. and a trial on November 5, 2012, at 9:00 a.m. at the Hugo
Black United States Courthouse in Birmingham, Alabama.
Done the 10th day of July, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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