Sani v. NPC International Inc
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 1/17/13. (KGE, )
2013 Jan-17 AM 11:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NPC INTERNATIONAL, INC. and
CIVIL ACTION NO.
Before the court is a motion for partial judgment on the
pleadings, and a supplement to said motion, filed by defendants NPC
International, Inc. (“NPC”), doing business as Pizza Hut, and
Crystal Boyd (“Boyd”) (collectively “defendants”).
(Docs. 22 and
26). The motions seek dismissal of four of the nine claims brought
employer, Boyd, his former manager, and
Jared Lewis, his former
co-worker against whom this action has been dismissed for want of
Defendants contend that these four claims should be
dismissed because Sani has failed to state a claim upon which
relief can be granted under the pleading standard articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937
Defendants seek dismissal of Sani’s claims of: (1) a race
discrimination (hostile work environment) brought under 42 U.S.C.
§ 1981 (“Section 1981") and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (Count I); (2) sexual
harassment (hostile work environment) brought under Title VII
Americans with Disabilities Act (“ADA”), and (4) state law outrage
For the reasons below, defendants’ motion for partial judgment
on the pleadings will be granted in part and denied in part.
In November 2010, Sani began working for NPC at its Pizza Hut
location in Birmingham, Alabama.
Sani alleges that, while working
at Pizza Hut, he was the victim of discrimination.
Sani alleges that he was not allowed to “man the oven” or take
deformity” and because he is Indian (Asian).
He alleges that his
immediate supervisor, Boyd, would walk up to him, tell him “I got
this” when he was manning the oven on in-store orders, but when he
walked away she would ask another employee to take over the oven.
Sani further alleges that Boyd and other employees, at Boyd’s
direction, would squeeze in between him and the cut table to
prevent him from handing food to customers. The complaint includes
appearance and the adverse effect it had on the handing of orders
Based on the procedural posture of the case, the court will
accept the factual allegations the complaint as true and draw all
reasonable inferences in Sani’s favor.
to customers. Although Sani complained, there was no investigation
and no one was disciplined.
In November 2011, NPC hired two new
drivers, Jared Lewis, a black male, and Jacob Ray, a white male.
Both of these new drivers were allowed to access the pizza oven and
to hand orders to customers whereas Sani was not.
Sani contends that other employees would make sexual
remarks about him within earshot.
After he complained to Boyd
about what he perceived as harassment, he heard the offending
employees loudly laughing about the admonishment, bragging, and
telling others that they could not wait to tell other people about
the apparently comical situation.
Sani alleges that he continued
to hear other employees make sexual comments about him.
complained to Boyd again, he told her that he wanted to talk to the
Sani continued to ask Boyd for the district
manager’s phone number for eight weeks, but Boyd kept telling him
that she had already given him the number.
Sani avers that Boyd
never gave him the district manager’s phone number.
To state a claim for which relief can be granted, a pleading
must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(c).
purpose of this requirement is to “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests[.]”
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)).
This standard does
not require a plaintiff to engage in “heightened fact pleading of
specifics,” but instead requires him to plead “enough facts to
state a claim for relief that is plausible on its face.”
at 570, 127 S. Ct. at 1974. (emphasis added).
complaint must contain sufficient factual matter to “allow the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
allegations “must be enough to raise a right to relief above
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964.
insufficient to state a claim for relief.
As an initial matter, Sani fails specifically to identify the
actor against whom he asserts his separate claims of race, sex, and
Because neither Title VII nor the ADA
provides for supervisor or non-employer liability, and because
there is no indication otherwise, the court dismisses these claims
as against Boyd.
See Busby v. City of Orlando, 931 F.2d 764, 722
(11th Cir. 1991) (Title VII); Albra v. Advan, Inc., 490 F.3d 826,
830 (11th Cir. 2007).
Hostile Work Environment - Racial and Sexual Harassment
To establish a claim for race or sex discrimination based on
a hostile work environment under Title VII,2 Sani must plead
sufficient factual content to allow the court to draw reasonable
inferences that (1) he was subjected to unwelcomed harassment; (2)
the harassment was based on his race or sex; (3) the harassment was
sufficiently severe or pervasive to alter the terms and conditions
of his employment so as to create a discriminatorily abusive work
environment; and (4) that the employer is responsible for the said
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir. 2002).
Defendants contend that Sani has not alleged sufficient facts
defendants argue that under the facts as pled, it is not plausible
that the alleged racial harassment was sufficiently severe or
pervasive to constitute a hostile environment.
In his complaint,
Sani describes a work environment in which his manager elaborately
worked to preclude him from serving customers, either herself or by
instructing other employees to do so, and that these actions were
based on his Indian (Asian) race.
Sani provides several specific
facts describing how Boyd and other employees would abruptly
Title VII and § 1981 race discrimination claims are
analyzed using the same analytical framework. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Therefore, the court will explicitly address Sani’s Title VII
claim with the understanding that the analysis applies to the §
1981 claim as well.
position themselves so as to prevent him from handing food to
customers or touching food in the presence of customers.
complaint further alleges that this behavior was continuing in
nature and occurred until his termination.
In addition to these
allegations, Sani alleges that during a conflict with another
employee, heard by Boyd without comment, the other employee “kept
telling [him] to ‘go back to [his] own country.’”
Sani’s allegations are far from conclusory.
recitation of elements.
Sani has done
Instead, his complaint contains specific
factual allegations that, when taken as true as they must, present
a plausible claim for racial harassment.
Defendants also argue that the allegations in Sani’s complaint
do not permit the inference that any alleged sexual harassment was
severe and pervasive.
Sani alleges that his co-workers would make
sexually-based remarks about him and that this behavior continued
after he repeatedly complained to management.
details these comments, his multiple complaints to management, and
his attempts to contact the district manager when the alleged
harassment did not stop.
Under these facts, it is plausible that
the alleged harassment was sufficiently severe and pervasive to
alter the conditions of Sani’s employment and create an abusive
See e.g., Portera v. Winn Dixie of Montgomery,
Inc., 996 F. Supp. 1418 (M.D. Ala. 1998).
These facts are
sufficient to put defendants on notice of the claim against them
and present a plausible claim for sexual harassment.
To prevail on an ADA claim, Sani must show that (1) he is
discriminated against him because of his disability. Holly v.
Clairson Indus., LLC, 492 F.3d 1247, 1255-56 (11th Cir. 2007).
elements to support a reasonable inference that he is entitled to
relief under the ADA.
First, Sani has alleged that he is “disabled.”
is deemed “disabled” for purposes of the ADA if he has a “(1)
physical or mental impairment that substantially limits one or more
of the major life activities of an individual; (2) a record of such
impairment; or (3) [is] regarded as having such impairment.”
Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir.
1996) (citing 42 U.S.C. § 12102(2)) (emphasis added).
alleged “facial deformity” is a physical cosmetic disfigurement
that meets this requirement.
See 29 C.F.R. § 1630.2.
It is also
apparent from Sani’s complaint that this impairment, substantially
communicating and working.
See 42 U.S.C. § 12102(2)(A)-(B).
It can also be reasonably inferred from the complaint that
Sani is a “qualified individual,” that is, he could perform the
42 U.S.C. § 12111(8).
Sani’s alleged disability
did not prevent him from being able to “man the oven” or take
orders to customers.
Finally, Sani’s complaint includes the
because of his disability, as well as specific factual support.
III. State Law Outrage
To maintain his outrage claim, Sani must plead facts making it
distress or knew or should have known that emotional distress was
the likely result from its conduct; (2) the conduct was “extreme
emotional distress so “severe” that no reasonable person could be
expected to endure it.
Am. Road Serv. Co. v. Inmon, 394, So. 2d
361, 365 (Ala. 1981).
Defendants argue that the offending conduct that Sani alleges
is insufficient to support his outrage claim.
defendants argue that the Alabama Supreme Court has only recognized
a cause of action for outrage in three circumstances, not one of
which is present in this case.
Namely, they contend that outrage
has only been recognized for (1) wrongful conduct in the familyburial context; (2) barbaric methods employed to coerce employment
settlement; and (3) egregious sexual harassment or assault. Thomas
v. Williams, 21 So. 2d 1234, 1240 (Ala. Civ. App. 2008) (citing
Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); Nat’l Sec. Fire &
Casulty Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); Busby v. Truswal
Sys. Corp., 551 So. 2d 322 (Ala. 1989)).
While the tort of outrage is extremely limited in Alabama,
The Alabama Supreme court has suggested that limited
forms of sexual harassment do constitute outrage.
At this point,
the court is reluctant to deny Sani the opportunity seek discovery
on his claim.
For the reasons stated, defendants’ motion for judgment on the
pleadings will be denied except as to Boyd’s motion with respect to
the Title VII, § 1981, and ADA claims.
Surviving a Rule 12(c)
motion does not, of course, imply that plaintiff’s action will
survive a timely filed Rule 56 motion after discovery is complete.
DONE this 17th day of January, 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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