Lindsey v. NCO Financial Systems Inc
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 9/12/12. (KGE, )
2012 Sep-12 PM 02:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NCO FINANCIAL SYSTEMS, INC.,
CIVIL ACTION NO.
Before the court is the motion of defendant, NCO Financial
Systems, Inc. (“NCO”), for partial summary judgment as to four of
the five claims brought by plaintiff, Michael Lindsey (“Lindsey”)
(Doc. 27). This action arises out of two telephone calls made by an
NCO employee who allegedly disclosed information to Lindsey’s stepmother and brother regarding a debt that Lindsey owed.
amended complaint, Lindsey claims that NCO violated the Fair Debt
Collection Practices Act (“FDCPA”) and committed the state law
wantonness, and reckless and wanton training and supervision.
does not seek summary judgment on the FDCPA claim.
For the reasons
set forth below, NCO’s motion for partial summary judgment will be
granted except for Lindsey’s claim of wanton conduct based on
In June 2011 an unpaid debt allegedly owed by Lindsey to Bank
of America was placed with NCO, a debt collector, for collection.
After many unsuccessful attempts to contact Lindsey directly,
including leaving multiple voice mail messages, Latisha Williams
(“Williams”), as an employee of NCO, placed a call to Lindsey’s
Williams says that the call was an attempt to get a
better telephone number for Lindsey or to confirm that she had his
During this call to the step-mother, Williams did
not reveal that NCO was a debt collector or that she was attempting
to collect a debt.
Instead, she said (quoting from a transcript
of the call):
Hi Kay, this is Latisha Williams from NCO Financial
Your number was, I have your number as a
reference number for Michael Lindsey.
monitored and recorded. I was unable to get in contact
with him. I am not sure if the number that I have is
correct, would you have a good contact number for him or
would you be able to relay a message to him?
(Doc. 29, Ex. 2).
When asked what the call was in reference to,
Williams responded only that it was a “personal business matter.”
Several days later, still unable to get in touch with Lindsey,
Williams called Lindsey’s brother.
Again, Williams did not state
that she or NCO was a debt collector or that she was attempting to
Because of the procedural posture, all facts and their
reasonable inferences are viewed in the light most favorable to
collect a debt.
During this call, Williams said:
This is Latasha [sic] Williams from NCO Financial
Systems. Calls are monitored and recorded. Your number
was left as a reference number for Michael Lindsey and I
was trying to get a hold of him. The number that I have
is not—I don’t think that it’s a good number. Would you
be able to give him a message to call me?
(Doc. 29, Ex. 3).
When asked by the brother the purpose of the
call, Williams told him that she was calling in regards to a “very
important business matter.”
Lindsey asserts that several of Williams’ words uttered during
these calls violated the FDCPA.
Specifically, Lindsey points out
that during both calls Williams stated that she was calling from
NCO without first being asked by the recipient, stated that the
recipient to deliver a message.
Although as of the date of her
deposition, Williams had not received any discipline as a result of
these calls that may have constituted violations of the FDCPA, the
undisputed evidence produced does show that Williams had received
six disciplinary warnings before her deposition was taken. Three of
these warnings were for failing to meet her collection goals.
Williams testified, if a collector repeatedly fails to meet her
collection goals, she can be terminated.
In addition to an hourly
commission when collections exceed her goals.
compensatory and punitive damages based on state law claims of
negligence, wantonness, negligent training and supervision, and
reckless and wanton training and supervision.
Both the claims for
negligence and wantonness are based on Williams’ actions and are
advanced against NCO under a theory of respondeat superior.
claims of negligent training and supervision and reckless or wanton
training and supervision are direct claims against NCO based on its
alleged inadequate training and supervision of Williams.
seeks actual damages for alleged emotional distress and mental
anguish, and punitive damages. Lindsey testified that, as a result
of these calls to his step-mother and brother he has suffered and
will continue to suffer professional and personal embarrassment and
humiliation. Both Lindsey’s step-mother and brother testified that
they did not notice any changes in Lindsey’s behavior after they
reported the calls to him.
Furthermore, they both testified that
their relationships with Lindsey have not been negatively affected.
In fact, it was the filing of this lawsuit, not Williams’ telephone
calls, that notified Lindsey’s step-mother and brother about his
Deposition testimony offered in support of NCO’s motion for
partial summary judgment details NCO’s training and monitoring
Specifically, NCO offered the testimony of Pat Deprospo
(“Deprospo”), the general manager of the call center where Williams
Deprospo is responsible for all aspects of this site,
including employees, hiring, firing, disciplinary action, client
performance, and profit and loss statements.
based on his twenty-three years experience in the collection
industry and six years with NCO , explained the details of NCO ’s
training and monitoring program. Collector training, he explained,
begins with a classroom-style course, where individuals wanting to
become collectors are trained on NCO
policies, the FDCPA, state
“graduate,” after which they are permitted to make collection
If a trainee is unable to pass one of these tests, he or
she will be let go.
Williams testified at her deposition that she was trained for
one to two weeks before being allowed to make collection calls.
participated group discussions, and went over the information with
According to Williams, this training included material
on “skip-tracing,” involving contacting third parties as a means
to collect a debt.
Deprospo also offered testimony regarding NCO’s continual
He explained that training continues throughout
approximately every six months.
Less formally, managers conduct
daily “team huddles” and “side-by sides” (one-on-one meetings with
collectors) to discuss issues that arise on collection calls.
Williams testified that during her employment, managers would
training and, among other things, assisted with contacting third
If a problem arises while a collector is working on an
supervisors available to offer guidance.
Deprospo also offered testimony regarding NCO’s monitoring
He explained that collectors are anonymously monitored
by three separate groups (two separate, internal monitoring groups
assumption that every call is being monitored.
At the site where
Williams works, Deprospo testified, the managers spend two to three
hours a day monitoring calls.
Managers also review account notes
for compliance issues.
There is a dispute over how many of Williams’ calls were
Greg Stevens (“Stevens”), Vice President of
Compliance and Audit, testified that every time a manager monitors
a call, a call monitoring form should be filled out.
period from April 2010 to May 2011, NCO
monitoring forms for Williams’ calls.
For the time
produced nine call
It is unclear exactly how
many calls were monitored during this period because, as Stevens
explained, some of these forms may cover multiple calls.
no evidence as to how many of Williams’ calls were monitored before
NCO administered approximately six verbal and written warnings
to Williams since she started working in February 2009.
misconduct, including failure to properly document NCO account
records and failure to follow NCO
procedure when speaking to a
telephone call recipient.
Finally, to encourage compliance with the FDCPA, NCO
requires that a collector who violates the FDCPA, resulting in NCO
having to pay a settlement or judgment, is fined 25% of the defense
costs, up to $500.
Williams has not had to pay such a fine during
Under Alabama law, in order to sustain a claim for negligent
training and supervision or reckless and wanton training and
supervision against NCO, Lindsey must establish that Williams, the
committed an actionable common law tort.
Leahey v. Franklin
Collection Serv., Inc., 756 F. Supp. 2d 1322, 1328-29 (N.D. Ala.
2010) (citing Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.
Supp. 2d 1314, 1320 (N.D. Ala. 2002)).
For this reason, the court
necessarily relies on respondeat superior to reach NCO. If Lindsey
can prove no tort by Williams, there would be no tort to be
attributed to NCO.
He cannot make direct claims against NCO for
negligent training and supervision or reckless and wanton training
and supervision without first establishing an underlying tort.
Negligence and Negligent Training and Supervision
In his brief in opposition to summary judgment, Lindsey
concedes that NCO is entitled to summary judgment on his claims for
negligence by Williams and negligent training and supervision by
Lindsey’s negligence claim fails because he has not alleged
facts to demonstrate actionable damages. Alabama law is clear that
“[d]amages for mental anguish are not recoverable for negligence
except when the plaintiff has suffered physical injury as a result
of the negligent conduct or was placed in an immediate risk of
physical injury by the conduct.”
Brown v. First Fed. Bank, — So.
3d — , 2012 WL 415468, *12 (Ala. Civ. App. 2012) (citing B’ham Coal
& Coke Co. v. Johnson, 10 So. 3d 993, 999 (Ala. 1998).
undisputed that Lindsey did not suffer physical injury and was not
Lindsey’s damages, if any, are his alleged
emotional distress and mental anguish. Summary judgment will be
granted as to the claims appropriately conceded by Lindsey.
NCO advances two challenges to Lindsey’s claim that Williams
was wanton in her collection efforts.
NCO contends that there is
no evidence of actionable damages or of wanton conduct.
1. Actionable Damages Sustained by Lindsey
NCO argues that the wantonness claim must fail because there
is no evidence of actionable damages.
In support, NCO cites
Hardesty v. CPRM Corp., which holds that Alabama law “does not
wantonness when the only damages or mental or emotional harm.” 391
F. Supp. 2d 1067, 1071 (M.D. Ala. 2005).
This case and the other
negligence and wantonness.
wantonness, Alabama courts have acknowledged that damages for
emotional distress or mental anguish alone may be recoverable for
While, as explained above, such damages are not
recoverable for mere negligence absent physical injury or plaintiff
being in the “zone of danger,” ”it is well settled that a plaintiff
may recover compensatory damages for mental anguish, even when
mental anguish is the only injury visited upon the plaintiff.”
Brown v. First Federal Bank, — F.3d — , 2012 WL 415468, *12 (Ala.
Civ. App. 2012) (quoting George H. Lanier Mem’l Hosp. v. Andrews,
901 So. 2d 714, 725 (Ala. 2004)); See also B’ham Coal & Coke Co.,
10 So. 3d at 999.
Next, as part of its contention that there is no evidence of
actionable damages, NCO argues that, even if emotional distress or
mental anguish damages alone are sufficient to support a claim of
wantonness, Lindsey has not suffered emotional distress or mental
anguish as a matter of law.
NCO contends that there is no legally
It is well settled in Alabama that a plaintiff must have a
manifest, present injury before he or she may recover in tort.
Emotional distress or mental anguish, however, may satisfy this
distress or mental anguish damages, there is no requirement that
the plaintiff’s alleged emotional distress or mental anguish be
predicated on the presence of physical symptoms or a psychiatrist’s
Ala. Power Co. v. Harmon, 483 So. 2d 386, 389 (Ala.
1986) (citing B&M Homes, Inc. v. Hogan, 376 So. 2d 667, 671 (Ala.
Instead, to survive summary judgment, a plaintiff must
Id. (citing B&M Homes, Inc., 376 So. 2d at 671).
the plaintiff has offered “some evidence,” the question of damages
for emotional distress or mental anguish is for the jury.
(citing B&M Homes, Inc., 376 So. 2d at 671).
Lindsey has offered minimal evidence of emotional damages. In
fact, the only evidence of damages is in Lindsey’s own deposition
testimony in which he states that he suffered both professional and
personal embarrassment and humiliation. Lindsey further elaborated
that, when he is at a family function, he has the perception that
everyone knows about his unpaid debt.
Lindsey did not visit a
therapist or doctor as a result of these feelings and does not plan
to do so in the future.
Furthermore, Lindsey’s step-mother and
brother, who received the telephone calls from Williams, both
behavior after the calls to suggest that he felt embarrassed or
Both Lindsey’s step-mother and brother testified that
their frequency of contact with Lindsey has not changed and that
their relationships with Lindsey have not been negatively affected.
In fact, it was this lawsuit, not Williams’ telephone calls, that
first made Lindsey’s step-mother and brother aware of Lindsey’s
In support of its contention that Lindsey has not presented
evidence of actionable damages, NCO cites Southern Bakeries, Inc.
v. Knipp, 852 So. 2d 712 (Ala. 2002).
In Knipp, the plaintiffs
were allegedly exposed to asbestos while removing an oven in the
course of their employment.
Id. at 713-14.
Although they had not
developed an asbestos-related disease at the time of the case, the
plaintiffs sought emotional distress and mental anguish damages
based on their fear that the exposure to asbestos put them at a
greater risk of developing an asbestos-related disease in the
Id. at 714.
Similarly to Lindsey, the plaintiffs had not
sought medical or psychiatric care and did not have plans to do so
in the future.
Id. at 717-18.
Furthermore, the plaintiffs had not
complained of any ailments to a medical provider and had not sought
medication or other assistance.
Id. at 718.
Based on this
evidence, the Alabama Supreme Court concluded that the plaintiffs’
fear of developing an asbestos-related disease in the future was
not a legally cognizable present injury.
The court explained
that “[o]pening the courts generally for compensation for fear of
future disease would be a dramatic change in the law and could
engender significant unforeseen and unforeseeable consequences;
awarding such compensation is better left to the Legislature.” Id.
On at least one occasion the Alabama Supreme Court has found
that a jury could infer that a plaintiff suffered some measure of
emotional distress or mental anguish based on limited evidence.
See Foster v. Life Ins. Co. of Ga., 656 So. 2d 333, 337 (Ala.
In Foster, the only evidence presented the plaintiff’s
emotional distress or mental anguish was her “bare assertion that
the discovery of fraud affected her ‘a lot’ and that she sued two
months after the mental anguish and emotional distress began.” Id.
Although reducing the amount of the jury award, the court explained
that this evidence provided a sufficient basis for the jury to
infer that plaintiff suffered damages and upheld the jury verdict
Whether a reasonable jury could infer that Lindsey has in fact
suffered emotional distress or mental anguish as a result of
Williams’ telephone calls is a close question.
On the one hand,
Lindsey’s alleged damages could be viewed as nothing more than fear
that his relatives might find out that he is a debtor.
this light, Knipp may be instructive.
On the other hand, Lindsey
has testified to past and present feelings of embarrassment and
humiliation, which are markedly different emotions from fear of an
uncertain future event.
These alleged injuries do not carry the
same policy considerations that were present in Kipp.
Kipp does not carry as much weight as NCO suggests.
It is not the
province of the court to decide close issues of fact at the summary
Because Lindsey has offered “some evidence” of
emotional distress or mental anguish, his claim for wantonness by
Williams does not fail for want of actionable damages.
2. Wanton Conduct by Williams
NCO next argues that Lindsey’s wantonness claim must fail
because Williams was not wanton in her collection efforts as a
matter of law.
Under Alabama law, wantonness is defined as “the
conscious doing of some act or the omission of some duty which
under knowledge of existing conditions and while conscious that,
from the doing of such act or the omission of such duty, injury
will likely be the probable result . . . .”
Roberts v. Brown, 384
So. 2d 1047, 1048 (Ala. 1980) (citations omitted).
party can be said to be guilty of wanton conduct it must be shown
that with reckless indifference to the consequences he consciously
and intentionally did some wrongful act or omitted some known duty
which produced the result.”
Id. (citations omitted) (emphasis
In what appears to be an effort to establish the requisite
underlying tort of wantonness, Lindsey has commingled arguments
regarding his wantonness claim and his reckless and wanton training
and supervision claim.
Throughout his brief, Lindsey continuously
discusses NCO’s training and monitoring, but fails to identify how
Williams’ actual actions themselves were wanton.
A parsing of
wantonly failed properly to train and supervise Williams and is
directly liable for her conduct, or (2) that NCO properly trained
Williams, but while she was acting in the scope of her employment,
she was wanton in her debt collection practices such and NCO is
liable under the theory of respondeat superior. Only the second of
the alternative approaches is viable.
As previously stated, Lindsey has presented some evidence from
which a jury could reasonably infer wanton conduct by Williams.
Lindsey presents two key pieces of evidence.
First from Williams’
disciplinary history, including three separate warnings for failing
to meet her collection goal, a jury could reasonably infer that
Williams cut corners and consciously disregarded NCO’s collection
As Williams herself testified, if she repeatedly failed
to meet her goal, she could be terminated.
The second piece of
evidence is NCO’s commission program itself, under which Williams
had the opportunity to earn money in addition to her hourly wage
when her collections exceeded her goal.
Lindsey argues that
Williams had a financial incentive to violate NCO’s collection
policies and the FDCPA.
In response to these arguments, NCO contends that it would be
illogical for Williams’ consciously to violate NCO’s collection
policy (and allegedly the FDCPA) in her collection efforts.
addition to a collection goal, NCO has policies in place that
require its collectors to comply with the FDCPA and NCO rules.
Violation of these policies can also result in termination.
NCO contends that it would be counterintuitive for Williams to
termination for failure to meet her collection goal.
argument could be compelling to a jury, it is for a jury to
determine its weight, not the court at summary judgment.
that NCO has not filed a motion for summary judgment as to the
FDCPA claim is arguably an admission that what Williams said during
these two telephone calls constitutes a violation or violations of
Although Lindsey’s evidence of wantonness is scant, scant
evidence is all he needs. Under Alabama law, “if there is any
evidence from which a jury can reasonably infer wantonness, the
issue should be presented to the jury.” Sellers v. Sexton, 576 So.
2d 172, 174 (Ala. 1991) (citing McDougle v. Shaddrix, 534 So. 2d
228 (Ala. 1988)).
Under this standard, Lindsey has presented
sufficient evidence to overcome summary judgment.
As such, NCO’s
motion for summary judgment will be denied as to the wantonness
Reckless or Wanton Training and Supervision
Because Lindsey’s wantonness claim against Williams does not
fail as a matter of law, even if weak, the court must examine NCO’s
challenge to Lindsey’s claim for reckless and wanton training and
supervision, which now has the door open to it.
See Leahey, 756 F.
Supp. 2d at 1329. Even if Williams acted wantonly, NCO has offered
detailed and uncontradicted evidence on its training and monitoring
programs as well as its training and monitoring of Williams.
Although Lindsey does not dispute the veracity of the evidence that
NCO has presented in this regard, he contends that certain pieces
of testimony and certain insufficiencies create a question of fact
with regard to whether or not NCO was itself wanton in its training
Lindsey’s arguments in turn.
To establish a claim for wanton training and supervision,
Lindsey must “establish by affirmative proof that [NCO] actually
knew of [Williams’ alleged] incompetence or reasonably should have
known of it.”
See Speigner v. Shoal Creek Drummond Mine, No. 09-
15483, 2010 WL 4342242, *4 (11th Cir. Nov. 3, 2010) (citing
Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 683
Lindsey offers several arguments as to why, despite
the undisputed evidence, an issue of fact remains as whether NCO
actually knew or reasonably should have known of Williams’ alleged
Lindsey would imply, although his argument is not clearly
articulated, that NCO should not be able to rely on Deprospo’s
programs because he does not personally train employees himself or
work in the training department, but instead is only “generally
familiar” with training and monitoring at NCO.
This contention is
Deprospo is the General Manager of the office
location where Williams works and is responsible for essentially
anything and everything that occurs at that site.
does not personally conduct the training sessions or monitor
individual calls, he is responsible for the site, employees,
hiring, firing, disciplinary action, client performance, and profit
and loss statements. Furthermore, he oversees managers who conduct
much of the continual training and monitoring.
Based on his high
level position and experience in the collection industry, there is
no doubt that Deprospo has personal knowledge and is competent to
offer testimony regarding NCO ’s training and monitoring policy and
Next, Lindsey argues that there is a material fact issue
because Williams testified at her deposition that she did not
remember what she learned during her initial one to two week
training and that, other than that initial training, she did not
receive training on contacting third parties.
This argument does
not accurately reflect Williams’ deposition testimony.
Williams testified that she did not “remember much about training
because it was a long time ago,” she followed this statement by
thoroughly explaining several aspects of her initial training.
(Doc. 27, Ex. B at 9-10).
Williams also testified that during her
employment, managers would conduct “side-by-sides” where they would
provide specific training and assist her with contacting third
parties. Lindsey does not provide the court with a citation to any
evidence in support of his assertion that Williams did not receive
training (other than the initial one to two weeks) on contacting
third parties, and Williams deposition testimony establishes the
fact to the contrary.
Furthermore, Lindsey does not deny that
Williams participated in thorough training before she was allowed
to make collection calls.
Lindsey’s conclusory argument regarding
Williams’ training does nothing to create a genuine issue of
material fact as to whether NCO knew or should have known about
Williams’ alleged incompetence.
A few shortcomings by an employee
does not render that employee so incompetent as to be terminated.
It might be different if Williams had suffered twenty disciplinary
actions before these telephone calls.
Lindsey strongly argues that summary judgment is improper
because Williams was not timely notified by NCO of her alleged
violations of policy.
She cannot remember the specifics regarding
disciplinary warnings she received in the past, and she did not
receive any additional training as a result of the disciplinary
warning she received as a result of the Lindsey calls.
evidence does not create a genuine issue of material fact as to
whether NCO was wanton in its training or supervision of Williams.
The two calls in question took place in June 2011, and as Lindsey
himself points out, Williams was notified that she violated policy
The court fails to see how NCO’s delay in discussing
supervision that preceded the matter complained of.
Williams had not received any “discipline” as a result of these
particular calls, the undisputed evidence establishes that she did
receive additional training based on these calls, which NCO admits
were in violation of its practices and procedures.
testified at her deposition that she was required to meet with
someone and review what she did wrong on the calls.
In what appears to be an effort to demonstrate that NCO
not follow its own policies, Lindsey argues that Williams has not
had to pay any of the costs related to this case pursuant to NCO’s
Under the policy, however, an employee is not
determination that NCO violated the law and incurs settlement,
judgment, or litigation costs.
Because no such event has yet
occurred, this argument is premature to say the least.
Based on the evidence presented, no reasonable jury could find
that NCO recklessly or wantonly training or supervised Williams.
implemented a thorough, if not perfect, training program.
NCO’s monitoring practices, it is both unreasonable and unrealistic
shoulders every minute of every work day.
This is an unreasonable
expectation that is simply not required under Alabama tort law.
There is no evidence from which to find that NCO knew or reasonably
should have known of Williams’ alleged incompetence or that it
judgment will be granted as to the claim that NCO recklessly or
wantonly failed to train and supervise Williams.
For the foregoing reasons, NCO’s motion for partial summary
judgment will be granted in part and denied in part.
seek summary judgment on the FDCPA claim.
effectuating this opinion will be entered.
NCO does not
A separate order
DONE this 12th day of September, 2012.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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