Jones et al v. Kent Sales & Service Corporation, The et al

Filing 29

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/17/2012. (KAM, )

FILED
2012 Sep-17 PM 01:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLIE J. JONES;
CORTNEY MOSLEY;
ROBERT HENDERSON; and
JOHN SEAY WARREN,
Plaintiffs,
v.
THE KENT SALES & SERVICE
CORPORATION;
M.A. OZTEKIN;
SHARRON HARBISON; and
JIM THOMAS,
Defendants.

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CASE NO. 2:12-cv-00251-SLB

MEMORANDUM OPINION
This case is presently before the court on defendant M.A. Oztekin’s Partial Motion
to Dismiss. (Doc. 7.)1 Upon consideration of the Motion,2 the relevant law, and the
arguments of counsel, the court is of the opinion that plaintiff’s Motion is due to be
granted in part and denied in part.

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
2

Plaintiffs point out and Oztekin acknowledges that his Motion, while styled as a partial
motion to dismiss, actually seeks dismissal of all claims relating to Oztekin. (Doc. 15 at 3 n.2;
doc. 19 at 1 n.1.) The court notes that the incorrect title does not affect this Opinion as each
count raised in the Motion will be addressed.

I. FACTS AND PROCEDURAL HISTORY3
Plaintiffs Charlie Jones (“Jones”), Cortney Mosley (“Mosley”), Robert Henderson
(“Henderson”), and John Seay Warren (“Warren”) (collectively “plaintiffs”) are current
and former employees of defendant Kent Sales & Service Corporation (“Kent”) and are
current or former coworkers of defendants M.A. Oztekin (“Oztekin”), Sharron Harbison
(“Harbison”), and Jim Thomas (“Thomas”) (collectively “defendants”). (See doc. 1.)
Oztekin is the owner of Kent. (Doc. 1 ¶ 1.)
Plaintiffs are African-Americans, and they allege that they endured a “continuing
pattern and practice of racial discrimination and retaliation” while employees of Kent.
(Doc. 1 ¶¶ 1, 10-14.) The Complaint alleges that a multitude of racially discriminatory
acts occurred during plaintiffs’ tenure at Kent and that racially derogatory slurs and
epithets were frequently directed at plaintiffs. (See id. ¶¶ 26-131.) The plaintiffs
collectively assert claims against Kent for racial discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §
1981. (Doc. 1 ¶¶ 132-51.) Plaintiffs also collectively assert a common law claim of
negligence against Kent. (Id. ¶¶ 152-58.) Additionally, plaintiffs collectively assert their
Title VII, Section 1981, and negligence claims against defendants Oztekin and Harbison
in their individual capacities. (Id. ¶¶ 159-68.) Henderson individually brings claims of
defamation against Kent, Oztekin, and Harbison. (Id. ¶¶ 169-75.) These claims are based
3

The facts are drawn from the Complaint and for purposes of ruling on the Motion to
Dismiss are accepted as true.

2

on allegations that Oztekin and others falsely accused Henderson of assaulting coworkers and brandishing a weapon in the presence of co-workers. (Id. ¶¶ 121-22, 126,
170-74.) Henderson was terminated on October 27, 2011, allegedly in connection or as a
result of these accusations. (Id. ¶ 124.)
Prior to initiating this action, plaintiffs filed charges of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) on or about April 29, 2011. (Id.
¶ 6.) Plaintiffs were issued determination letters dated September 8, 2011, which
“informed Plaintiffs that [the EEOC] found that the Defendants subjected the Plaintiffs
[to] unlawful racial harassment.” (Id.) Jones, Mosley, and Henderson were issued Right
to Sue notices dated January 12, 2012. (Id. ¶ 8.) Warren was issued a Right to Sue notice
dated January 18, 2012. (Id. ¶ 9.) Thereafter, plaintiffs filed their Complaint on January
24, 2012. (See doc. 1.)
II. MOTION TO DISMISS STANDARD
Oztekin moves to dismiss the Complaint for failure to state a claim upon which
relief can be granted. The purpose of such a motion, authorized by Rule 12(b)(6) of the
Federal Rules of Civil Procedure, is to test the facial sufficiency of plaintiffs’ statement
of a claim for relief. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364,
1367 (11th Cir. 1997) (per curiam). “Fed. R. Civ. P. 8(a)(2) requires that a pleading
contain 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

3

which it rests.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)
(internal quotation marks and citations omitted). The allegations in the Complaint are
accepted as true and are construed in the light most favorable to plaintiff. Ironworkers
Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011).
“[T]he complaint ‘must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.’” Id. (quoting Am. Dental Ass’n, 605 F.3d at 1289).
However, “courts ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan
v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009) (“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.”). Also, the court does not assume
that plaintiffs can prove facts that they have not alleged or that defendants have violated
the law in ways that have not been alleged. Id. at 563 n.8 (citing Associated Gen.
Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).
“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
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Id. at 555 (citations, brackets, and
internal quotation marks omitted). “Factual allegations must be enough to raise a right to

4

relief above the speculative level . . . .” Id. (citation omitted). Thus, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face,’” i.e., that is to “allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “[W]hile notice pleading may not require that the pleader
allege a ‘specific fact’ to cover every element or allege ‘with precision’ each element of a
claim, it is still necessary that a complaint ‘contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery under some viable
legal theory.’” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.
2001) (quoting In re Plywood Antitrust Litig., 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8,
1981)).
III. DISCUSSION
A. Count VI–Racial Discrimination and Retaliation Under Title VII
Oztekin’s Motion seeks dismissal of plaintiffs’ claims of unlawful racial
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”), pled against Oztekin in his individual capacity under
Count VI of the Complaint. (Doc. 7 ¶ 4.) Count VI of the Complaint incorporates by
reference Counts I - V. (Doc. 1 ¶ 160.) Counts I and IV assert against Kent claims of
racial discrimination and retaliation in violation of Title VII, respectively. (Id. ¶¶ 133-35,
147-51.) Oztekin argues that plaintiffs fail to state claims against him under Title VII,

5

because “Title VII provides for claims only against an ‘employer’” as that term is defined
in the statute. (Doc. 7 ¶ 4.) The court agrees. The allegations in the Complaint, even if
accepted as true, fail to state Title VII claims against Oztekin.
Title VII states that it is unlawful for “an employer . . . to discriminate against any
individual with respect to his . . . terms, conditions, or privileges of employment, because
of such individual’s race [or] color.” 42 U.S.C. § 2000e-2(a)(1). The retaliation
provision of Title VII further makes it unlawful “for an employer to discriminate against
any . . . employee . . . because [the employee] has opposed any practice made an unlawful
employment practice” under the statute. Id. § 2000e-3(a). Title VII defines an employer
as “a person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person.” Id. § 2000e(b). Despite the
statute’s inclusion of agents within the definition of “employer,” the Eleventh Circuit has
“expressly [held] that relief under Title VII is available against only the employer and not
against individual employees whose actions would constitute a violation of the Act.”
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (per curiam) (emphasis added); see
also Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000) (“‘The
relief granted under Title VII is against the employer, not individual employees whose
actions would constitute a violation of the Act.’” (quoting Busby v. City of Orlando, 931
F.2d 764, 772 (11th Cir.1991))); Tompkins v. Barker, No. 2:10cv1015-MEF, 2011 WL

6

3583413, at *2-3 (M.D. Ala. July 26, 2011) (following Dearth and dismissing Title VII
discrimination and retaliation claims against all individual defendants); Cannova v.
Breckenridge Pharm., Inc., No. 08-81145-CIV, 2009 WL 64337, at *3 (S.D. Fla. Jan. 9,
2009) (dismissing Title VII retaliation claim alleged against defendant in his individual
capacity based on the “clear” and binding authority in Dearth); Moss v. W & A Cleaners,
111 F. Supp. 2d 1181, 1186 n.8 (M.D. Ala. 2000) (“The Eleventh Circuit has established
that the reference [in Title VII] to an employer’s agent serves to establish repondeat
superior liability and not individual liability of agents.” (citing Mason v. Stallings, 82
F.3d 1007, 1009 (11th Cir. 1996))).
Plaintiffs’ Title VII claims against Oztekin are due to be dismissed. As Oztekin
correctly points out in his Brief, Title VII does not provide for claims against employees
sued in their individual capacities. (Doc. 8 at 4-5.) Plaintiffs’ Response offers no
substantive argument in opposition except that the allegations in the Complaint comply
with Rule 8 of the Federal Rules of Civil Procedure and are sufficient to state claims for
discrimination and retaliation against Oztekin. (Doc. 15 at 3-5.) The Title VII claims in
Count VI of the Complaint will be dismissed with prejudice.
B. Count VI–Racial Discrimination and Retaliation Under Section 1981
Oztekin’s Motion seeks dismissal of plaintiffs’ claims of unlawful racial
discrimination and retaliation in violation of 42 U.S.C. § 1981 (“Section 1981”) pled
against Oztekin in his individual capacity. (Doc. 7 ¶ 5.) As stated above, Count VI of the

7

Complaint incorporates by reference Counts I - V. (Doc. 1 ¶ 160.) Counts II and III
assert against Kent claims of racial discrimination and retaliation in violation of Section
1981, respectively. (Id. ¶¶ 137-39, 141-45.) Oztekin argues inter alia that plaintiffs fail
to state a claim of hostile work environment against him because the alleged
discriminatory acts are not sufficiently severe or persuasive to constitute an actionable
claim under Section 1981. (Doc. 8 at 9-11.) Oztekin also argues that the Complaint fails
to state a claim of retaliation against him because plaintiffs do not allege Oztekin engaged
in any retaliatory conduct and that any purported retaliatory acts were not materially
adverse under Section 1981. (Id. at 6-8.)
Section 1981 safeguards an individual’s freedom from racial discrimination and
retaliation regarding his rights “to make and enforce contracts . . . and to the full and
equal benefit of all laws and proceedings.” It has long been held that Section 1981
applies to workplace discrimination based on race. See Johnson v. Ry. Express Agency,
Inc., 421 U.S. 454, 459-60 (1975). “Thus, § 1981 provides a cause of action for racebased employment discrimination including wrongful termination, retaliation, and a
racially hostile work environment.” Melton v. Nat’l Dairy LLC, 705 F. Supp. 2d 1303,
1315 (M.D. Ala. 2010). The Eleventh Circuit has held that claims for race discrimination
are cognizable under both Title VII and Section 1981 and “‘have the same requirements
of proof and use the same analytical framework.’” Blue v. Dunn Constr. Co., Inc., 2011
WL 5903535, at *1 (11th Cir. 2011) (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d

8

1318, 1330 (11th Cir. 1998)). This also applies to claims of retaliation under Section
1981. See CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951, 1955 (2008); Selby v. Tyco
Healthcare Grp., L.P., 301 F. App’x 908, 912 (11th Cir. 2008) (per curiam). However,
unlike claims under Title VII, Section 1981 includes claims made against defendants in
their individual capacity. See Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1176 (11th
Cir. 2003).
1. Racial Discrimination Claims Against Oztekin Under Section 1981–
Hostile Work Environment
Count VI of the Complaint appears to allege claims of racial discrimination hostile
work environment against Oztekin: “The conduct alleged herein has altered terms and
conditions of Plaintiffs’ employment and is substantially interfering with Plaintiffs’
employment.” (Doc. 1 ¶ 162.) To establish a claim of hostile work environment under
Section 1981, a plaintiff must allege the following:
(1) that he [or she] belongs to a protected group; (2) that he [or
she] has been subject to unwelcome harassment; (3) that the
harassment [was] based on a protected characteristic of the
employee . . . ; (4) that the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and
create a discriminatorily abusive working environment; and (5)
that the employer is responsible for such environment under
either a theory of vicarious or of direct liability.
Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (alteration in original) (quoting Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Oztekin contends that
the Complaint fails to allege that his conduct was sufficiently severe or pervasive such that
9

it altered the terms and conditions of plaintiffs’ employment. See Melton, 705 F. Supp. 2d
at 1340 (“Generally speaking, element four is where most hostile work environment claims
get caught up.”). The severity of the alleged discriminatory conduct is measured objectively
from the perspective of a reasonable person and subjectively from the plaintiff’s perspective.
Bryant, 575 F.3d at 1297. Objective severity is based on the surrounding circumstances;
however, the court looks to factors such as, “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Edmond v.
Univ. of Miami, 441 F. App’x 721, 725 (11th Cir. 2011). “Teasing, offhand comments, and
isolated incidents that are not extremely serious will not amount to discriminatory changes
in the terms and conditions of employment.” Alexander v. Opelika City Sch., 352 F. App’x
390, 392 (11th Cir. 2009). “A plaintiff may have a viable hostile environment claim even if

the racial remarks were not directed at him.” Melton, 705 F. Supp. 2d at 1341 (citing
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995)).
In addition to the generalized statements regarding discrimination by employees and
supervisors at Kent, the Complaint contains a number of specific allegations recounting
Oztekin’s racially charged comments disparaging defendants and other black employees as
well as comments downplaying other instances of discriminatory conduct at Kent. At a
meeting with Jones, Oztekin told Jones to “‘Shut [his] mouth’” about an incident where
another Kent employee attempted to place a noose around Jones’s neck. (Doc. 1 ¶ 46.)

10

Mosley also attended a meeting with Oztekin regarding the same incident, and Oztekin
instructed Mosley “‘to forget about [it]’”. (Id. ¶ 87.) At the same meeting, Oztekin said
“repeatedly . . . ‘You people are bringing down the company’” and “You people have too
much pride.” (Id. ¶ 89-90.) Oztekin openly objected to the placement of a black employee
in the front office and stated, “You don’t put those kind of people in there.” (Id. ¶ 58.)
Oztekin openly excluded Jones from a Foremen’s meeting, and exclaimed to the Plant
Manager, “Don’t bring the big Black guy to the meetings.” (Id. ¶ 59.) On another occasion,
Oztekin “scream[ed], ‘You people are causing the company problems’” and “‘what would
you people do for money?’” (Id. ¶ 93.) Henderson observed Oztekin refer to Henderson and
other black Kent employees as “You People.” (Id. ¶ 119.) Plaintiffs collectively allege a
number of remarks which could certainly be considered as creating a racially hostile
environment. However, upon consideration of the allegations made by each plaintiff
separately as to defendant Oztekin, the court finds that accepting all allegations as true, there
are insufficient allegations to survive defendant’s Oztekin’s Motion to Dismiss plaintiffs’
claims (again, considered separately) under Section 1981 for a racially hostile work
environment. Therefore, these claims will be dismissed without prejudice.4

4

Since these claims are dismissed without prejudice the individual plaintiffs may
attempt to replead these claims. If a § 1981 hostile environment claim is replead against
defendant Oztekin, the Amended Complaints should contain allegations as to what the
particular plaintiff saw, heard, knew, or experienced with regard to any racial comments
or conduct by Oztekin.
11

2. Retaliation Claims Under Section 1981 Against Oztekin
Oztekin also challenges the sufficiency of plaintiffs’ retaliation claims under Section
1981. Section 1981 can include claims by employees who have endured retaliatory treatment
for opposing discrimination against themselves and other coworkers. See, e.g., Humphries,
128 S. Ct. at 1954 (“[Section 1981] encompasses a complaint of retaliation against a person
who has complained about a violation of another person’s contract-related ‘right.’ ”); Tucker
v. Talladega City Sch., 171 F. App’x 289, 295 (11th Cir. 2006) (“§ 1981 encompasses a
cause of action for retaliation . . . for a plaintiff’s opposition to race discrimination, whether
or not he personally is the victim of that race discrimination.”). A retaliation claim under
Section 1981 requires that the claimant employee allege and prove that “‘[ (1) ] he engaged
in statutorily protected activity, [ (2) ] he suffered a materially adverse action, and [ (3) ]
there was some causal relation between the two events.’” Selby, 301 F. App’x at 912
(alteration in original) (quoting Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277
(11th Cir. 2008)).
Plaintiffs Mosley and Warren
The Complaint fails to allege that Oztekin undertook or facilitated any adverse action
against Mosley and Warren in retaliation for engaging in protected activity. Count III,
(retaliatory discrimination in violation of Section 1981) as incorporated under Count VI pled
against Oztekin, asserts general and conclusory allegations regarding the conduct of Kent,
the employer. (Doc. 1 ¶¶ 141-45.) Count VI adds nothing to the incorporated paragraphs

12

that could plausibly suggest Oztekin retaliated against Mosley and Warren. Finally, the
broad allegations elsewhere in the complaint, which refer to retaliation by “Kent” and
unnamed Kent employees or management, are insufficient to state a plausible retaliation
claim against Oztekin by plaintiffs Mosley and Warren. The Section 1981 retaliation claims
alleged by Mosley and Warren against Oztekin will be dismissed without prejudice.
Plaintiff Jones
Jones fails to state a claim of retaliation against Oztekin. The only instance pled in
the Complaint suggesting that Oztekin retaliated against Jones is Jones’s claim that Oztekin
excluded Jones from foremen meetings. (Doc. 1 ¶ 59.) Even assuming that excluding Jones
from the meetings was causally related to a protected expression or activity, the court finds
that the alleged retaliatory acts, exclusion from foremen meetings, do not constitute adverse
employment actions. In Burlington Northern & Santa Fe Ry. Co. v. White, the Supreme
Court explained that “to separate significant from trivial harms,” an actionable retaliatory act
must be deemed materially adverse. 548 U.S. 53, 68 (2006). The conduct must be such that
“it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (internal quotation marks and citations omitted); see also Crawford v.
Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008) (requiring in the absence of an ultimate
employment decision such as termination or demotion that the plaintiff show an adverse
employment action by demonstrating a “serious and material change in the terms, conditions,
or privileges of [his] employment” (internal quotation marks and citations omitted)). The

13

court finds that excluding Jones from the meetings was not materially adverse and would not
dissuade a reasonable worker from reporting discrimination. Bell v. Crowne Mgmt., LLC,
844 F. Supp. 2d 1222, 1238 (S.D. Ala. 2012) (“Nor is exclusion from a meeting an adverse
employment action or anything remotely approaching one.”). Jones’s claim of retaliation
against Oztekin will be dismissed without prejudice.
Plaintiff Henderson
The court finds that Henderson fails to state a claim of retaliation against Oztekin.
However, the claim bears further discussion based on plaintiffs’ claim that false accusations
against Henderson were made after Henderson filed his EEOC complaint, (doc. 1 ¶ 122),
Henderson’s subsequent termination “under the cloud” of the same accusations, (doc. 1 ¶
124), and Oztekin’s alleged defamatory statements against Henderson, (doc. 1 ¶ 170).
Henderson engaged in protected expression when he filed a complaint with the EEOC, (doc.
1 ¶ 123). See Tucker, 171 F. App’x at 296. Henderson also suffered an adverse employment
action when he was terminated by Kent on October 27, 2011, (doc. 1 ¶ 124). See id. Thus,
the only issue before the court is whether the allegations in the Complaint are sufficient to
infer a causal relation between plaintiff Henderson’s protected activity and any alleged
adverse action by Oztekin. Selby, 301 F. App’x at 912.
Oztekin contends that the Complaint fails to state that Oztekin had any role in any
retaliatory action against plaintiff Henderson. While it is true that Count VI does nothing
more than summarily assert that Oztekin violated Section 1981, elsewhere in the Complaint,

14

plaintiffs allege that in retaliation for filing his EEOC complaint, Henderson was “unfairly
accused without proof of provocation of assaulting fellow employees and of encouraging the
same” (doc. 1 ¶ 122), and that Henderson was “subsequently terminated . . . by Kent under
the cloud of these same false allegations.” (Id. ¶ 124.) Oztekin is implicated in these alleged
retaliatory statements by Henderson’s claim (under Count VIII–Defamation) that Oztekin
“accused [him] of assaulting a fellow Kent employee.” (Id. ¶ 170.)
“To establish a causal connection, a plaintiff must show that the decision-maker[s]
[were] aware of the protected conduct, and that the protected activity and the adverse action
were not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir.
2000) (alteration in original) (internal quotation marks and citation omitted), cert. denied,
121 S. Ct. 772 (2001).

The Complaint alleges that “Kent” (the employer) terminated

Henderson and there is no suggestion that Oztekin was a decision maker or involved in the
decision in any way or that Oztekin even knew of Henderson’s protected activity. Thus, the
court finds that the Complaint fails to state a claim of retaliation against defendant Oztekin
because there are no factual allegations on which to infer a causal relationship between
plaintiff Henderson’s protected activity and any adverse action by defendant Oztekin.
Henderson’s claim of retaliation against Oztekin will be dismissed without prejudice.
C. Count VI–Negligence
In addition to discrimination and retaliation under Title VII and 1981, Count VI of the
Complaint purports to state a claim of negligence against Oztekin. (Doc. 1 ¶¶ 160-63.) It

15

is unclear on the face of the Complaint, however, whether plaintiffs assert against Oztekin
a claim of ordinary negligence or negligent training, retention, and supervision. Count VI
of the Complaint incorporates by reference Count V, titled “Negligence (as to Defendant
Kent).” (Id. ¶¶ 153-58, 160.) Despite the heading, Count V states that “Kent has been
negligent in training, retaining and supervising managers and others described herein.” (Id.
¶ 155.) Oztekin’s Motion and Brief in Support address ordinary negligence and negligent
training; however, plaintiffs’ Response states that Count VI only asserts a claim of
negligence and that “Plaintiffs do not purport, by adopting previous allegations in the
Complaint, to bring Negligent Supervision, Training, or Retention Claims against Defendant
Oztekin.” (Doc. 15 at 7 n.4.) Accordingly, the court only considers whether plaintiffs state
a claim of negligence against Oztekin.
Plaintiffs fail to state a claim of negligence against Oztekin. In Alabama, the elements
of negligence include “‘duty, a breach of that duty, causation, and damage.’” Prill v.
Marrone, 23 So. 3d 1, 6 (Ala. 2009) (quoting Armstrong Bus. Servs., Inc. v. AmSouth Bank,
817 So. 2d 665, 679 (Ala. 2001)). “‘Whether there is a duty is the threshold inquiry in a
negligence case. It is settled that for one to maintain a negligence action the defendant must
have been subject to a legal duty.’” Roebuck v. Case Corp., No. 4:06-CV-0221-RDP, 2006
WL 6861849, at *4 (N.D. Ala. Mar. 20, 2006) (quoting Morris v. Merritt Oil Co., 686 So.
2d 1139, 1141 (Ala. 1996)). Nowhere in Count VI or elsewhere in the Complaint do
plaintiffs identify what duty Oztekin owed plaintiffs or whether he breached said duty.

16

Although Count VI incorporates Count V–“Negligence (as to Defendant Kent)”–the claims
under the latter refer exclusively to the alleged negligence of Kent, not Oztekin. (Doc. 1 ¶¶
153-58.) Further highlighting the absence of any facts pertaining to negligent conduct is the
summary allegation in Count VI that “Oztekin’s previously alleged egregious conduct is in
violation of all incorporated statutes.” (Id. ¶ 161 (emphasis added).) Plaintiffs’ Response
claims that Oztekin breached his managerial duty to plaintiffs “to create a safe working
environment, free from racial discrimination . . . by perpetuating the racially discriminatory,
harassing, and retaliatory environment.” (Doc. 15 at 7.)5 Such allegations are not found
within the Complaint and cannot be considered on a Motion to Dismiss. See Thaeter, 449
F.3d at 1352 (“‘When considering a motion to dismiss, . . . the court limits its consideration
to the pleadings and exhibits attached thereto.’” (quoting Grossman, 225 F.3d at 1231)).
Plaintiffs’ negligence claim under Count VI will be dismissed without prejudice.
D. Count VIII–Defamation and Defamation per se6
In Count VIII of the Complaint, plaintiff Henderson asserts common law claims of
defamation and defamation per se against Kent, Oztekin, and Harbison for allegedly accusing

5

The court is unaware of any law establishing such a duty.

6

Plaintiffs’ Response purports to supplement their claims of defamation with additional
facts as well as two exhibits attached thereto. Again, for purposes of ruling on Oztekin’s Motion,
the court will not address matters outside the pleadings. See Thaeter, 449 F.3d at 1352. Further,
the court ignores and excludes the exhibits attached to plaintiffs’ Response. See FED. R. CIV. P.
12(d).

17

Henderson “of assaulting a fellow Kent employee.” (Doc. 1 ¶¶ 170-75.) The court addresses
the claims of defamation separately as they relate to Oztekin.
1. Defamation
Under Alabama common law, a claim of defamation requires that the plaintiff allege:
“(i) that the defendant was at least negligent; (ii) in publishing; (iii) a false and defamatory
statement to another; (iv) concerning the plaintiff; (v) which is either actionable without
having to prove special harm or actionable upon allegations and proof of special harm.”
Watters v. La. Pac. Corp., 156 F. App’x 177, 179 (11th Cir. 2005) (per curiam) (quoting
Gary v. Crouch, 867 So. 2d 310, 315 (Ala. 2003)). The element of publication requires “a
communication of a defamatory matter to a third person.” Nelson v. Lapeyrouse Grain
Corp., 534 So. 2d 1085, 1093 (Ala. 1988); see also Cabble v. Claire’s Stores, Inc., 919 F.
Supp. 397, 402 (M.D. Ala. 1996) (“publication can be shown by a plaintiff only ‘by proof
of communication of the defamatory matter to someone other than himself.’” (quoting
Nelson, 534 So. 2d at 1092)); Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117,
1120 (Ala. 1976) (“If there is no publication, there is no defamation.”).
The court focuses on whether Henderson sufficiently pled the element of publication
to a third party. Regarding Henderson’s ordinary defamation claim, there are only two
instances in the Complaint where it is alleged Oztekin communicated falsehoods to others
concerning Henderson. The Complaint states that Kent, Oztekin, and Harbison “accused
[Henderson] of assaulting a fellow Kent employee” and that said accusations “were

18

communicated verbally in such a manner that they were heard by third parties.” (Doc. 1 ¶
171.) Henderson provides no other facts implicating Oztekin in this instance of purported
publication. Based on such vague allegations, it cannot be plausibly inferred from the face
of the Complaint that Oztekin communicated the accusations to a third party. Such a
“‘formulaic recitation’” and “naked assertion” without “further factual enhancement” fails
to adequately plead the element of publication, and thus, Henderson fails to state a claim of
defamation as to this specific allegation. Twombly, 550 U.S. at 555, 557.
Next, the Complaint alleges that Kent, Oztekin, and Harbison additionally “subjected
. . . Henderson to two ‘interrogations’ in which more defamatory remarks were leveled
against . . . Henderson, with these remarks being overheard by Court Reporters brought to
the Kent facility to record . . . Henderson’s ‘statements’ in defense of the defamatory
remarks.” (Doc. 1 ¶ 173.) The Alabama Supreme Court has recognized that communication
of an alleged defamatory statement by a defendant to his co-employee or agent retained to
“compile information” for purposes of investigating matters in the workplace upon which the
defamatory statement is based does not constitute publication to a third party. See Brackin
v. Trimmier Law Firm, 897 So. 2d 207, 222-23 (Ala. 2004). By Henderson’s own admission
in the Complaint, the court reporters who overheard the accusations at issue were “brought
to the Kent facility to record . . . Henderson’s ‘statements’ in defense of the defamatory
remarks.” (Doc. 1 ¶ 173 emphasis added.) Based on the allegations in the Complaint, the
court reporters acted as agents of Kent and duly accomplished the task for which they were

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“brought” to Kent to perform: take statements from Henderson regarding the contested
allegations “leveled against” him by Oztekin and others. (Id.) The court finds that Oztekin’s
alleged statements overheard by the court reporters were not published to a third party for
purposes of Henderson’s claim of defamation.
For the foregoing reasons, the court concludes that Henderson fails to state a claim
of defamation against Oztekin. The claims will be dismissed without prejudice.
2. Defamation per se
Henderson also claims that certain statements related to his employment at Kent
communicated by Kent to the Alabama Department of Industrial Relations (“ADIR”)
constituted defamation per se. (Doc. 1 ¶ 174.) Defamation or slander per se is a variation
of a typical claim of slander requiring that the defamatory statement involve “‘an imputation
of an indictable offense involving infamy or moral turpitude.’” Liberty Nat. Life Ins. Co. v.
Daugherty, 840 So. 2d 152, 157 (Ala. 2002) (quoting Ceravolo v. Brown, 364 So. 2d 1155,
1157 (Ala. 1978)). “Words found to be slander per se relieve the plaintiff of the requirement
of proving actual harm to reputation or any other damage in order to recover nominal or
compensatory damages.” Id. (internal quotation marks and citations omitted). Henderson
alleges that after his termination from Kent, he applied to the ADIR for unemployment
benefits but was denied benefits based on assertions made by Kent to ADIR that Henderson
“was terminated for brandishing a weapon at his co-workers.” (Doc. 1 ¶¶ 124-26.)

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Henderson further asserts that publication of such false accusations to ADIR necessarily
involving his employment at Kent constituted defamation per se.
Henderson fails to state a claim of defamation per se against Oztekin. First, there is
no allegation in the Complaint that Oztekin personally communicated any information to the
ADIR. Second, it is well-settled under Alabama law that employee information sent by
employers to ADIR is privileged and not subject to an action for defamation:
All letters, reports, communications, and other matters,
written or oral, from employer . . . to the director [of the ADIR]
or any of his agents, representatives, or employees, or to any
official or board functioning under this chapter, which shall
have been written, sent, delivered, or made in connection with
the requirements and administration of this chapter, shall be
absolutely privileged and shall not be made the subject matter
or basis for any civil action for slander or libel in any court.
ALA. CODE § 25-4-116 (1975) (emphasis added); see also Watters, 156 F. App’x at 179
(“Alabama statute provides that communications made in connection with the
administration of the Department of Industrial relations are absolutely privileged and
cannot form the basis for an action for slander or libel in any court.” (citing ALA. CODE §
25-4-116)); Smith v. Boyd Bros. Transp., Inc., 406 F. Supp. 2d 1238, 1246 (M.D. Ala.
2005) (“[Section 25-4-116’s] plain language provides [defendant] with an absolute
privilege from liability for slander or libel.” (citations omitted)). Thus, to the extent that
Henderson claims that Oztekin defamed him by way of Kent publishing the statements to
ADIR, the Complaint fails to state a cause of action because such statements are

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absolutely privileged under Alabama law. Henderson’s claim of defamation per se as to
Oztekin will be dismissed without prejudice.
IV. CONCLUSION
Based on the foregoing and in accordance with the court’s Order entered
contemporaneously herewith, Oztekin’s Motion to Dismiss will be granted as to all claims
alleged against him in the Complaint. All claims, with the exception of plaintiffs’ Title
VII claim against Oztekin, may be replead against the defendant.
DONE, this 17th day of September, 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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