Marquez v. Tyson Farms Inc
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 9/26/12. (KGE, )
2012 Sep-26 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAVIER P. MARQUEZ,
TYSON FOODS, INC.,
CIVIL ACTION NO.
Before the court is the motion of defendant Tyson Foods, Inc.
(“Tyson”)(incorrectly identified in the complaint as “Tyson Farms,
Inc.”)to dismiss three of the four claims brought by plaintiff
Javier P. Marquez (“Marquez”). Doc. 6. Marquez brought suit against
Tyson for employment discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.§ 2000e et seq., fraud, outrage, and
defamation. Tyson moves to dismiss all but the Title VII claim. For
the reasons stated below, defendant’s motion will be granted as to
the fraud and defamation claims but will be denied as to the
Marquez, who is Hispanic, was an employee at Tyson’s plant in
Blountsville, Alabama when he was terminated on December 22, 2010
for an incident that took place on December 16, 2010. Plaintiff was
in the break room on a scheduled break from work when he found a
Because the motion before the court is to dismiss the claims, the
court must view the complaint in the light most favorable to the plaintiff.
package of earplugs. He took the earplugs out of their package and
began making designs on the table with the string. When he left to
return to his work station, he, without thinking, draped the string
over an air conditioning fixture and left the room. He later found
out that the earplug string was in the shape of a noose.
About an hour later Marquez was summoned to a meeting in the
plant office with two management personnel, Jan Casey and Albert
Del Carmen. They asked if he had hung the earplugs in the break
room. He replied that he had. Marquez did not realize anything was
offensive about the way the string was hanging, so he never denied
it. When Casey and Del Carmen asked why he had hung the earplugs
that way, Marquez responded that he had been bored and was simply
making designs with the string. They then began to ask if he
understood its offensive nature. Marquez insisted that he did not,
and that he meant nothing by it. Casey then said “[d]on’t you
understand that they used to hang people in the United States with
these things?” Marquez said that he did not, and that in Mexico it
was common and not at all offensive to make such designs with
string. Marquez had never been involved in any sort of racial
incident. There was no evidence that the design was directed at
anyone, but Tyson suspended Marquez for 3 days. When Marquez
returned to work on December 22, he was fired with the incident
given as the reason.
Marquez subsequently filed a claim for unemployment benefits
unemployment compensation but Tyson appealed the decision. As a
result of the appeal, a hearing was held with Del Carmen serving as
Tyson’s representative. According to Marquez, Del Carmen
Plaintiff had stated about the design with
string not being uncommon in Mexico by
stating: ‘. . . he responded to me that in
Mexico they hang people all the time. I
informed Mr. Marquez he was not in Mexico, he
was in the United States of America, and we,
our policy here at Tyson prohibits that.’”
Doc. 1 ¶ 10. Marquez maintains that he did not make this statement
and that it was a misrepresentation made with intent to establish
a false basis to fire him. Del Carmen then continued to make
misrepresentations about Marquez by saying that he admitted to
engaging in “horseplay”- a term set out in the disciplinary rule
used to fire Marquez but which Marquez never admitted to engaging
Unemployment Compensation Division that the earplug design was
accompanied by an offensive remark, gesture, or activity to suggest
a racial slur. Marquez has experienced much distress regarding his
termination and the accusations Tyson made regarding the violent
symbol he allegedly made.
Tyson has moved to dismiss Marquez’s fraud, defamation, and
outrage claims. It concedes that the claim under Title VII is not
subject to a Rule 12(b)(6) motion and is due to be answered.
Marquez’s complaint fails to properly plead the elements of
fraud. The Supreme Court of Alabama states that the elements of
fraud are: “(1) a misrepresentation of a material fact, (2) made
willfully to deceive, recklessly, without knowledge, or mistakenly,
(3) that was reasonably relied on by the plaintiff under the
consequence.” McCutcheon Co., Inc v. Media General, Inc., 988 So.2d
998 at 1001 (Ala. 2008) (emphasis added). Marquez’s complaint does
not claim that he relied on Tyson’s misrepresentation. Instead, he
alleges that the ADIR Unemployment Compensation Agency relied on
the misrepresentations. Furthermore, his response to defendant’s
motion to dismiss even concedes that he did not rely on any
A similar situation came before Honorable C. Lynwood Smith of
this court earlier this year: plaintiff claimed that defendant
committed fraud when it allegedly made false statements to the
ADIR. See Huddleston v. Sunshine Mills, Inc., CV-11-S-4329-NW (N.D.
dismissed plaintiff’s fraud claim pursuant to 12(b)(6) because the
ADIR had relied on the false statements rather than plaintiff;
therefore, plaintiff had not met the elements of a fraud claim.
This case warrants the same result: a dismissal under 12(b)(6)
because Marquez has failed to plead a claim upon which relief can
situation in which he relied on an alleged misrepresentation by
Tyson regarding his suspension, but these allegations do not appear
in his complaint. This is not the proper time to plead a new claim;
dismissing plaintiff’s fraud claim.
Marquez does not state a valid defamation claim. His claim is
based on allegedly false and misleading statements made in an
unemployment compensation hearing with the ADIR. However, Alabama
Code § 25-4-1162 provides that communications made in connection
with the administration of the Department of Industrial Relations
The 11th Circuit has held that under Ala. Code
25-4-116, communications made during an unemployment compensation
hearing of the ADIR fall under the statute and thus are absolutely
privileged and cannot form the basis for an action for defamation.
See Watters v. Louisiana Pacific Corp., 156 F. App’x 177 (11th Cir.
2005). See also Huddleston v. Sunshine Mills, Inc., CV-11-S-4329-NW
(N.D. Al. April 10, 2012), 2012 US Dist. LEXIS 53023 for a similar
The statute, which is in the title 25, governing Industrial Relations
and Labor, and article 4, governing unemployment compensation provides “[a]ll
letters, reports, communications, and other matters, written or oral, from
employer or employee to each other or to the director or any of his agents,
representatives, or employees, or to any official or board functioning under
this chapter, which shall 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.”
Marquez cites cases that he claims demonstrate that testimony
in an unemployment compensation hearing is not privileged. See Ex
Parte Mardis, 628 So.2d 605 (Ala. 1993) and Thorne v. Big “D”
Discount Auto Parts of Daleville, 92 F.R.D. 55 (M.D. Ala. 1981).
His assertions are inapplicable in this context. As Tyson says,
“[a]lthough Plaintiff quoted Ex Parte Madris accurately, he should
evidentiary privilege and hold that testimony in an unemployment
compensation hearing is not privileged when sought for use as
evidence in a lawsuit. Ex Parte Madris deals with evidence in a
sexual harassment lawsuit, and Thorne deals with evidence in an
action under the Fair Labor Standards Act. Neither deals with using
testimony from an unemployment compensation hearing as the basis
for a defamation lawsuit, and thus both are inapplicable.
Marquez also argues that “even if some sort of privilege
attaches to the unemployment compensation hearing testimony it is
a qualified privilege that can be defeated by the showing of actual
inapplicable.3 Additionally, the 11th Circuit has held that this
privilege is absolute. See Watters 156 F. App’x 177 (2005).
Wiggins v. Mallard deals with privileges in the newspaper publication
of criminal information and is not informative regarding the privilege of ADIR
testimony. 905 So.2d 776 (Ala. 2004). Kenny v. Gurley examines whether letters
sent by a school to a student’s parents are privileged so that they can not be
the basis for a libel claim. 95 So. 34. (1923) This case is irrelevant to the
court’s analysis, and it was overruled 12 years ago by Ex parte Blue Cross and
Blue Shield of Alabama, 773 So. 2d 475. (Ala. 2000).
The communications Marquez attempts to use as the basis of his
defamation claim are prohibited by Alabama law from forming the
basis of a defamation claim. Therefore, Marquez has not pled a
defamation claim upon which relief can be granted and Tyson’s
motion to dismiss this claim will be granted.
In order to recover for the tort of outrage, a plaintiff must
demonstrate that the defendant’s conduct was “(1) intentional or
reckless; (2) was extreme and outrageous; and (3) caused emotional
distress so severe that no reasonable person could be expected to
endure it.” Potts v. Hayes, 771 So.2d 462 (Ala. 2000). Marquez has
met these elements for purposes of surviving a motion to dismiss.
He alleges that Tyson made false representations that he was
dishonest and racist and that he thought nothing was wrong with
hanging a person. Additionally, he was terminated because of these
false accusations. Although it is extremely difficult to succeed on
a claim of outrage, it is possible, that with more facts, Marquez
could succeed on this claim.
Defendant argues that the Alabama Supreme Court has precluded
at-will termination from being the basis for a claim of outrage.
See Wal-Mart Stores, Inc. v. Smitherman, 872 So. 2d 833 and Harrell
v. Reynolds Metals Co., 495 So. 2d 1381 (Ala. 1986). However, if
the reasons for Marquez’s termination contravene public policy,
then it is possible for a claim based on the tort of outrage to
succeed. See Id. Neither party cites any authority that plaintiff’s
termination offends the public policy of Alabama; however, at this
point, particularly since the claim involves the touchy issues of
race, the court can not eliminate the possibility that it might.
For these reasons, Tyson’s motions to dismiss Marquez’s claims
for fraud and defamation will be granted, and Tyson’s motion to
dismiss Marquez’s claim for outrage will be denied.
day of September, 2012
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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