Miller v. Home Depot USA Inc et al
MEMORANDUM OPINION AND ORDER: As further set out in order, Home Depot's Motion to Dismiss, 10 , is GARNTED in part. The claims against Harris, Thompson, Bates, Marsh, Cook, Jones, and Christian, in their individual and official capacities, are DISMISSED-leaving only Title VII and ADEA claims against Home Depot. Additionally, Miller is ORDERED to file an amended complaint by April 5, 2013. Sheila Cook, Andrea Nicole Harris, Charles Jones, Lisa Marsh, Ray Bates and Markesia Christian terminated. Signed by Judge Abdul K Kallon on 03/11/13. (CVA)
2013 Mar-11 PM 04:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
HOME DEPOT USA INC,
CHRIS L THOMPSON,
ANDREA NICOLE HARRIS,
RAY BATES, LISA MARSH,
SHEILA COOK, CHARLES
JONES, and MARKESIA
Civil Action Number
MEMORANDUM OPINION AND ORDER
Ron Miller (“Miller”) brings this action against his former employer Home
Depot USA, Inc. (“Home Depot”) and several individual employees (collectively
“Defendants”) for race, gender, national origin, and age based employment
discrimination, harassment, and retaliation under Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Doc. 1. Defendants seek to
dismiss the complaint or, alternatively, to compel a more definite statement. Doc.
10. The motion is fully briefed and ripe for review. Docs. 11, 28, 29. For the
reasons stated more fully below, Defendants’ motion is GRANTED in part.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks
omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal,556 U.S. at 678
(citations and internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Bell
Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
II. PROCEDURAL AND FACTUAL BACKGROUND1
Home Depot hired Miller, a multi-racial 53-year old male, as a special
services associate in 2010. Doc. 1 at ¶¶ 16-17. This “front end” position included
operating the front of the store, handling customer complaints, and alleviating staff
shortages in other departments. Id. Miller reported directly to Andrea Harris, the
special services supervisor, but also worked under the “head cashiers” – Lisa
Marsh, Sheila Cook, and Markesia Christian. Id. at ¶ 18. According to Miller,
these four women, all of whom are African American, harassed him due to his race
and skin color, gender, and national origin. Id. at ¶ 21. Specifically, Harris
purportedly “harass[ed] Miller by criticizing him for anything she could without
providing constructive education on corrective actions” and “lied to management
“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint
‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). However, legal
conclusions unsupported by factual allegations are not entitled to that assumption of truth. See
Iqbal, 556 U.S. at 678-79.
[by] inform[ing] them that Miller . . . no longer wanted to work in Special
Service,” which resulted in management removing Miller from the department. Id.
at ¶¶ 23, 28. Harris, Marsh, Cook, and Christian purportedly mocked Miller
regularly, refused to do their fair share of work, and made comments such as “look
at the old gimp,” “men ain’t good for nothing but lifting boxes[,]” or “oh, we
thought you were speaking Indian.” Id. at ¶¶ 23-29, 33.
In response to this alleged harassment, Miller notified Defendant Ray Bates,
who purportedly failed to take action. Id. at ¶ 30. Eventually, in December 2010,
Miller complained about Harris to the Home Depot corporate office, but it too
purportedly failed to take action. Id. at ¶ 31. The following summer, after further
incidents with Harris and several female customers, Miller prepared a letter
regarding the harassment to send to Defendant Chris Thompson. Id. at ¶ 35.
However, Harris allegedly crumpled up the letter and threw it at Miller. Id.
Thereafter, Miller advised Thompson “that he was no longer able to tolerate
Harris’ and Marsh’s racism.” Id. at ¶ 37.
The following week, Home Depot cut Miller’s work schedule to 22.5 hours.
Id. at ¶ 39. When Miller attempted to contact Bates and Thompson again
regarding the alleged discrimination, his schedule was cut to 14 hours. Id. at ¶¶
40-41. Some time during this process, Miller applied for a full time sales position.
Id. at ¶ 42. However, after Home Depot cut his hours, Defendant Charles Jones
informed Miller that the sales position was awarded to a female employee with
less experience “and that Home Depot’s internal policies for interviewing
employees for open positions had been circumvented.” Id. at ¶ 42. Due to Home
Depot’s failure to address the purported discrimination, Miller resigned from
Home Depot in June 2011. Id. at ¶¶ 20, 43.
Miller appears to allege Title VII and ADEA claims against Home Depot
and against employees Harris, Thompson, Bates, Marsh, Cook, Jones, and
Christian individually and in their “official capacities.” See doc.1. As a
preliminary matter, any claims against individuals under Title VII or the ADEA
necessarily fail since both statutes apply to “employers” and, as such, do not
recognize individual liability. See Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.
2006); Albra v. Advan, 490 F.3d 826, 830 (11th Cir. 2007). For the same reasons,
neither statute sanctions “official capacity” claims to the extent that the claims are
against the individual. Additionally, since there is no individual liability, “official
capacity” suits are generally treated as suits against the employing entity. See
generally, Scott v. Taylor, 405 F.3d 1251 (11th Cir. 2005). In other words, the
claims against Harris, Thompson, Bates, Marsh, Cook, Jones, and Christian in
their “official capacities” are actually claims against Home Depot, who is already a
party to this action. Accordingly, the Title VII and ADEA individual and “official
capacity” claims against these defendants are DISMISSED.
Home Depot contends that Miller’s remaining state law claims are due to be
dismissed and asks the court to compel Miller to provide a more definite statement
regarding his claims. Doc. 11. The court addresses each contention below.
Claims Under Alabama Law
Miller alleges that Defendants are liable for negligence for failing to refrain
from, prevent, and investigate the alleged discrimination.2 Doc.1 at ¶ 52.
However, Alabama law does not recognize an independent action of negligence
for employment discrimination. See Thrasher v. Ivan Leonard Chevrolet, 195 F.
Supp. 2d 1314, 1320 n.3 (N.D. Ala. 2002), citing Machen v. Childersburg
Bancorporation, Inc., 761 So. 2d 981, 983 n.1 (Ala. 2000). Therefore, Miller’s
negligence claim fails as a matter of law. Moreover, to the extent alleged, “to
establish a claim against an employer for negligent supervision, training, and/or
This claim is actually plead against all seven individual defendants. However, as
discussed above, since the action is brought against these persons in their individual and official
capacities, the negligence claim is construed as one against the persons individually and against
retention, the plaintiff must establish that the allegedly incompetent employee
committed a common-law, Alabama tort.” Thrasher, 195 F. Supp. 2d at 1320,
citing Stevenson v. Precison Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999). Yet,
here, Miller failed to allege a recognized Alabama tort against three of the
individual defendants and the outrage claim asserted against the remaining
defendants is insufficient to state a claim. See section A(2), infra. Therefore, to
the extent Miller alleged a negligence supervision claim, that claim also fails.
Accordingly, Defendants’ motion to dismiss count four is GRANTED.
Intentional Infliction of Emotional Distress
Miller lastly asserts a claim for intentional infliction of emotional distress
against Harris, Marsh, Cook, and Christian, doc.1 at ¶ 53, which, in Alabama, is
known as the tort of outrage, Harrelson v. R.J., 882 So. 2d 317, 321-22 (Ala.
2003). “The tort of outrage is a very 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). Accordingly, the tort is appropriate only when
the conduct alleged 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.” Tinker v. Beasley, 429 F.3d 1324, 132930 (11th Cir. 2005) (citing American Rd. Svc. Co. v. Inmon, 394 So. 2d 361, 365
(Ala. 1980)). Moreover, “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities” are insufficient to create liability for outrage,
instead “plaintiffs must necessarily be expected and required to be hardened to a
certain amount of rough language and to occasional acts that are definitely
inconsiderate and unkind.” Surrency v. Harbison, 489 So. 2d 1097, 1105-06 (Ala.
1986) (quoting Restatement (Second) of Torts, § 46, Comment (d) (1965)).
Based on Miller’s contention that these four defendants made inappropriate
comments and failed to work as hard as he, Miller’s complaint fails to reach the
level of egregiousness required to state a claim for outrage. While discriminatory
and derogatory remarks regarding gender, age, or race are indeed inappropriate in
the workplace and have no place in civilized society, the comments these
defendants purportedly made are best characterized as “mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities” that cannot be said to
“go beyond all possible bounds of decency.” Surrency, 489 So. 2d at 1105-06
(affirming a directed verdict for defendants on an outrage claim alleging that
defendant committed assault and battery and made several disparaging comments
and threats); Tinker, 429 F.3d at 1329-30; see also Thomas v. Williams, 21 So. 3d
1234, 1239-40 (Ala. Civ. App. 2008) (affirming dismissal of an outrage claim
where the plaintiff alleged the defendant made derogatory remarks about the
plaintiff to the employer, resulting in the plaintiff’s termination). Accordingly,
Defendants’ motion to dismiss the outrage claim is also GRANTED.
Motion for More Definite Statement
Finally, Home Depot contends that Miller’s Title VII and ADEA claims are
“so vague and ambiguous that [it] cannot reasonably prepare a response.” Doc.11
at 14 (quoting Fed. R. Civ. P. 12(e)). Specifically, Home Depot asserts that the
complaint fails to provide necessary information regarding the timing of Miller’s
EEOC intake questionnaire and charge, to plead discrete claims in separate counts,
or to delineate which claims are brought under Title VII and which fall under the
ADEA. The court agrees. Accordingly, Home Depot’s motion to compel a more
definite statement is GRANTED and Miller is ORDERED to file an amended
complaint by April 5, 2013. Among other things, the amended complaint must
specifically note (1) when Miller filled out his EEOC intake questionnaire; (2) the
date Miller filed his EEOC charge, (3) the facts forming the basis for his Title VII
claim and the individuals who he claimed engaged in the discriminatory conduct;
and (4) the facts forming the basis for his ADEA claim and the individuals who he
claims engaged in the discriminatory conduct.
For the reasons stated above, Home Depot’s motion is GRANTED in part.
The claims against Harris, Thompson, Bates, Marsh, Cook, Jones, and Christian,
in their individual and official capacities, are DISMISSED – leaving only Title
VII and ADEA claims against Home Depot. Additionally, Miller is ORDERED
to file an amended complaint by April 5, 2013.
DONE this 11th day of March, 2013.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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