Powell v. Harsco Metal

Filing 15

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 7 MOTION to Dismiss for reasons set out herein. Signed by Judge Virginia Emerson Hopkins on 6/20/2013. (JLC)

FILED
2013 Jun-20 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONALD R. POWELL,
Plaintiff,
v.
HARSCO METAL,
Defendant.

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) Case No.: 2:12-CV-4080-VEH
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MEMORANDUM OPINION AND ORDER
This employment discrimination and Alabama state law tort action was filed
by the plaintiff, Donald R. Powell, against the defendant, Harsco Metals (“Harsco”).1
(Doc. 1, p. 2.) The claims are set out in several different places in the complaint.
Under the heading “First Claim for Relief,” the plaintiff makes a claim for race
discrimination and retaliation under both Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq. (“Title VII”)
and 42 U.S.C. § 1981. (Doc. 1, p. 5.) Under the heading “Second Claim for Relief,”
the plaintiff makes an Alabama state law claim of intentional infliction of emotional
distress. (Doc. 1, p. 5.) Then, in a third section of the complaint, under the heading
1

The defendant refers to itself as Harsco Metals, in the plural. It has been sued as Harsco
Metal. Regardless, the court will refer to it as Harsco.

“Nature of the Action and Relief Sought,” the plaintiff also states a claim “under the
common law of the State of Alabama for invasion of privacy.” (Doc. 1, p. 2.)
Finally, in the “Facts” section of the complaint, the plaintiff alleges that the
defendant’s conduct created a “hostile working environment,” and that the defendant
engaged in a “pattern and practice of employment discrimination based on race.”
(Doc. 1, p. 4.)2 All of the claims arise out of the plaintiff’s employment with the
defendant.
The case comes before the court on the defendant’s motion to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim
upon which relief may be granted. (Doc. 7.) For the reasons states herein, the motion
will be GRANTED in part and DENIED in part.
I.

STANDARD
“[A] court should only grant a motion to dismiss [under Rule 12(b)(6)] where

the defendant demonstrates that the plaintiff cannot prove any set of facts in support
2

Paragraph 1.1 of the complaint alleges that this is an action “arising under the
laws of the United States of America, in particular Title VII . . . .42 U.S.C. 1981a, and 29
U.S.C. § 626(c)(1) and 626(e).” (Doc. 1, p. 1.) The court has already acknowledged
that the action is brought under Title VII. Title 42 U.S.C. § 1981a merely provides the
range of monetary and other relief available under Title VII. It does not create a separate
cause of action. Title 29 U.S.C. §§ 626(c)(1) and 626(e) relate to “recordkeeping,
investigation, and enforcement” in the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq. There are no factual allegations whatsoever relating
to age discrimination. Any claim under the ADEA will therefore be dismissed.
2

of his claim which would entitle him to relief.” Am. United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1057 (11th Cir. 2007). “Moreover, when ruling on a motion to
dismiss, a court must view the complaint in the light most favorable to the plaintiff
and accept all of the plaintiff's well-pleaded facts [and reasonable inferences drawn
from those facts] as true.” Id. (emphasis added). A court looks to the facts alleged
in the plaintiff’s complaint, and not its merely conclusory statements, when ruling on
a motion to dismiss. Thus, to survive a motion to dismiss for failure to state a claim,
“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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 1964–65, 167 L. Ed. 2d 929 (2007) (quotations omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Id. at 1965.
Mere conclusory statements in support of a threadbare recital of the elements of a
cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009).
II.

ALLEGATIONS IN THE COMPLAINT
The plaintiff is an African American who, at the time of the events described

in the complaint, was employed by the defendant. (Doc. 1, p. 2.) He began working
for the defendant on April 7, 2007, in the position of “loader.” (Doc. 1, p. 3.)
3

Eventually he moved to the position of “lube man,” which he held at the time of the
events described in the complaint. (Doc. 1, p. 3.)
On December 7, 2011, the plaintiff and a co-worker named Mason Woods had
a verbal altercation during which Woods called the plaintiff a “black mother fucker”
and threatened to kill the plaintiff. (Doc. 1, p. 3.) The complaint does not state
whether this occurred at work and if it occurred during work hours. The plaintiff
“reported the incident to his white supervisor Bruce Anderson who advised him ‘to
not worry about it.’” (Doc. 1, p. 3.) The complaint does not say when the plaintiff
reported the incident, what he described, or whether he told Anderson that he felt he
had been the victim of discrimination.
The complaint then states that “[l]ater that evening,” apparently meaning the
evening of December 7, 2011, Mason Woods and his brother Matthew Woods (who
the complaint implies was also employed by the defendant) physically assaulted and
injured the plaintiff. (Doc. 1, p. 3.) The complaint does not state whether this
occurred at work and if it occurred during work hours.
On December 8, 2011, the plaintiff was off work because of his injuries from
the assault. Eddie Ishmel, the Safety Coordinator for the defendant, called Powell
and told the plaintiff that he had been suspended without pay because of “the
altercation.” (Doc.1, p. 3.) The complaint is not specific as to whether “the
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altercation” refers to the original verbal altercation or the later physical one. The
plaintiff’s suspension lasted for three days. (Doc. 1, p. 3.) The complaint alleges that
the plaintiff was suspended “despite doing exceptionally good work and getting good
reviews.” (Doc. 1, p. 3.) Neither Mason Woods nor Matthew Woods was disciplined
by the defendant. (Doc. 1, p. 3.)
The complaint generally alleges that the defendant has “maintained” a “pattern
and practice” of discrimination against African American employees. (Doc. 1, p. 2.)
The complaint generally alleges the following general examples of said pattern and
practice: “showing favoritism to white employees,” “subjecting black employees to
harsh and unreasonable performance standards not generally applied and not
consistent with applicable personnel practices and regulations,” “[t]erminating,
suspending or otherwise disciplining employees who [are] black while not taking
such actions against white employees for the same or similar conduct,” “abuse of
authority by white supervisors to subject black employees to humiliation,
embarrassment and invasion of . . . privacy,” “[w]hite supervisors subjecting [b]lack
employees to harsher discipline then accorded [white]3 employees for the same or
comparable misconduct,” and “[s]ubjecting black employees to pressure and coercion
to abandon employment with the [d]efendant.” (Doc. 1, p. 3.) The complaint cites
3

The complaint erroneously uses “black” here when “white” was clearly intended.
5

no specific facts in support of any of this conduct.
Finally, the complaint generally alleges that the plaintiff “complained of the
acts against him,” but it is not specific as to whether it is referring to the discussion
the plaintiff had with Anderson after the initial verbal altercation, or some other
complaint. (Doc. 1, p. 4.)
III.

ANALYSIS
As noted above, it appears that the complaint attempts to set out claims under

Title VII, 42 U.S.C. § 1981, and Alabama state law. The defendant moves to dismiss
all of these claims. They will be addressed in turn.
A.

The Title VII and Section 1981 Claims

The Eleventh Circuit has explained:
Title VII prohibits employers from discriminating against any
individual with respect to the terms of employment on the basis of race
or sex. 42 U.S.C. § 2000e-2(a)(1). Section 1981 also prohibits
discrimination in the making and enforcing of contracts based on a
person’s race. 42 U.S.C. § 1981(a). . . . The same analysis applies to
claims for employment discrimination brought under Title VII as to
those brought under § 1981.
Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 207 (11th Cir. 2008). The plaintiff
alleges that he was treated differently from other employees when he was suspended
and the Woods brothers were not. This is a “disparate treatment” claim. He also
alleges that the defendant discriminated against him by creating a “hostile work
6

environment,” and that it retaliated against him. Further, the plaintiff alleges a pattern
and practice of employment discrimination.
1.

Pattern and Practice

The defendant argues that the plaintiff cannot bring a pattern and practice claim
on behalf of himself alone, only on behalf of a class. (Doc. 8, pp. 9-12.) The plaintiff
does not address this argument in his brief.
The Eleventh Circuit has noted:
Section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a),
entitles the Government to bring a pattern or practice claim on behalf of
a class of similarly situated employees for declaratory and injunctive
relief against an ongoing act of intentional discrimination in violation
of Title VII. A pattern or practice claim for such relief may also be
brought under Title VII as a class action, pursuant to Federal Rule of
Civil Procedure 23(b)(2), by one or more of the similarly situated
employees.
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 964-65 (11th Cir. 2008).
The instant case is neither brought by the government nor on behalf of similarly
situated plaintiffs. Further, the pattern and practice allegations contain no factual
support. They are mere conclusions which “are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Accordingly, the pattern and practice claims fail.
2.

Disparate Treatment

The defendant argues that the complaint should be dismissed because it “fails

7

to state sufficient facts to establish a prima facie case under the McDonnell-Douglas
framework.” (Doc. 8, p. 7.)
Disparate treatment claims can be proven using direct evidence
(requiring no inference or presumption) or circumstantial evidence. Id.
Racial discrimination claims based on circumstantial evidence are
evaluated under the McDonnell Douglas burden shifting framework. See
id. To establish a prima facie case for disparate treatment in a race
discrimination case, the plaintiff must show that: (1) she is a member of
a protected class; (2) she was subjected to an adverse employment
action; (3) her employer treated similarly situated employees outside of
her protected class more favorably than she was treated; and (4) she was
qualified to do the job. Id. If the plaintiff satisfies these elements, then
the defendant must show a legitimate, non-discriminatory reason for its
employment action. Id. If it does so, then the plaintiff must prove that
the reason provided by the defendant is a pretext for unlawful
discrimination. Id.
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).
The Supreme Court has expressly rejected the requirement that the plaintiff
provide facts to support each element of the prima facie case at this stage. In
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the court noted that “[t]he prima
facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” Swierkiewicz, 534 U.S. at 510. Further, the court noted that “it is not
appropriate to require a plaintiff to plead facts establishing a prima facie case because
the McDonnell Douglas framework does not apply in every employment
discrimination case. For instance, if a plaintiff is able to produce direct evidence of

8

discrimination, he may prevail without proving all the elements of a prima facie
case.” Id. at 511.
In a pre-Twombly analysis of Swierkiewicz, the Eleventh Circuit noted:
It is important to explicate the holding of Swierkiewicz, and how its
pleading standards have been understood within this Circuit. First, while
Swierkiewicz made clear that pleading a McDonnell Douglas prima facie
case was not necessary to survive a motion to dismiss, it did not even
remotely suggest that a pleading could survive dismissal when it
consisted of only the barest of conclusory allegations without notice of
the factual grounds on which they purport to be based. See Swierkiewicz,
534 U.S. at 508 n. 1, 122 S.Ct. at 996 n. 1 (“Because we review here a
decision granting respondent's motion to dismiss, we must accept as true
all of the factual allegations contained in the complaint.” (emphasis
added)); id. at 514, 122 S.Ct. at 999 (finding pleadings sufficient
because “[t]hese allegations give respondent fair notice of what [the
plaintiff's] claims are and the grounds upon which they rest.” (emphasis
added)). . . . [I]n Swierkiewicz, “the Court did not hold that the
complaint's factual allegations were entirely ancillary.”(emphasis in
original).
...
[W]hile “a plaintiff is not held to a very high standard in a motion to
dismiss for failure to state a claim, some minimal pleading standard does
exist.” . . . “Pleadings must be something more than an ingenious
academic exercise in the conceivable.” . . . “[U]nsupported conclusions
of law or of mixed law and fact are not sufficient to withstand a
dismissal under Rule 12(b)(6).” . . . The liberal standard of notice
pleading still requires a plaintiff to provide the defendant with fair
notice of the factual grounds on which the complaint rests.
Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1270-71 (11th Cir. 2004).
Twombly and Iqbal were decided after Jackson. The court has found no
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published post-Twomby/Iqbal Eleventh Circuit case on this issue. However, in a
recent unpublished case, the Eleventh Circuit wrote:
“Although a Title VII complaint need not allege facts sufficient to make
out a classic McDonnell Douglas prima facie case, it must provide
‘enough factual matter (taken as true) to suggest’ intentional ...
discrimination.” Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d
955, 974 (11th Cir.2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002), and Twombly, 127 S.Ct.
at 1965). In addition to containing well-pleaded factual allegations,
complaints must also meet the “plausibility standard” set forth in
Twombly and Iqbal. See Iqbal, 129 S.Ct. at 1949–50. This plausibility
standard requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id. at 1949. “Where a complaint pleads facts that are
merely consistent with a defendant's liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id.
(quotations omitted). Our analysis of the plausibility standard is
“context-specific” and “requires [us] to draw on [our] judicial
experience and common sense.” Id. at 1950.
Bowers v. Bd. of Regents of Univ. Sys. of Georgia, No. 12-12244, 2013 WL 563180
at *3 (11th Cir. Feb. 15, 2013).4 In Bowers, the court, while not requiring the
pleading of facts supporting every element, still considered the elements of the prima
facie case in determining whether the claim was plausible. Accordingly, at the very
least, the elements are a helpful guide to the determination of the issue before the
court.
Here, there is no dispute that the plaintiff, as an African American male, is a

4

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2.
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member of a protected class and that he was subjected to adverse employment action
when he was suspended without pay. The defendant argues only that the plaintiff has
shown no similarly situated employees who were treated more favorably than the
plaintiff for the same conduct. The plaintiff does not respond to this argument in his
brief.
As to this issue,
[t]he Eleventh Circuit explained that “ ‘[i]n determining whether
employees are similarly situated for purposes of establishing a prima
facie case, it is necessary to consider whether the employees are
involved in or accused of the same or similar conduct and are
disciplined in different ways.’ ” Brown, 171 F.3d at 1368 (quoting Jones
v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.)),
opinion modified by 151 F.3d 1321 (1998) (quoting Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir.1997)). “ ‘The most important factors in
the disciplinary context are the nature of the offenses committed and the
nature of the punishments imposed.’ ” Id. (internal quotations and
citations omitted). The Eleventh Circuit “requires that the quantity and
quality of the comparator's misconduct be nearly identical to prevent
courts from second-guessing employers' reasonable decisions and
confusing apples with oranges.” Id. (citation omitted).
Humphrey v. Napolitano, 847 F. Supp. 2d 1349, 1355-56 (S.D. Fla. 2012) aff'd, 1211726, 2013 WL 1715321 (11th Cir. Apr. 19, 2013). The plaintiff and the Woods
brothers were involved in the same fight and only the plaintiff, who is an African
American, was suspended. Under these allegations, the disparate treatment claim
survives a motion to dismiss.

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3.

Retaliation

The defendant argues that the plaintiff has provided no factual support for his
retaliation claim. Instead of setting out specific facts supporting his claim, the
plaintiff’s response brief merely quotes case law on pleadings standards.
The Eleventh Circuit has stated:
Title VII's anti-retaliation provision makes it unlawful for an
employer to discriminate against an employee “because he has opposed
any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e–3(a). To make a prima facie showing of
retaliation, the plaintiff must show: (1) that she engaged in statutorily
protected conduct; (2) that she suffered adverse employment action; and
(3) that there is “some causal relation” between the two events. See
McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.2008).
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010). In this
case, the complaint fails because the plaintiff has failed to allege that he engaged in
statutorily protected conduct. He generally alleges that he was suspended “because
of his having complained about unlawful discrimination,” (doc. 1, p. 2) and that he
“complained of the acts against him.” (doc. 1, p. 4). Iqbal tells us to ignore such
conclusory allegations.
Only one specific complaint is set out by the plaintiff, the complaint to his
supervisor about the verbal altercation with Mason Woods. Importantly, the plaintiff

12

is not clear as to whether it was a complaint about a “practice made an unlawful
employment practice” under Title VII. In other words, it is not clear whether the
plaintiff complained merely about the altercation, or was specific about the words
used by Woods, or even alleged that he felt that this was discrimination. Even if the
court concluded that the plaintiff complained of the “black mother fucker” comment,
which is not clear from the complaint, it is not stated that the plaintiff considered that
to be discrimination, or said so to his supervisor. It has been noted that “‘[t]he
employee must, at the very least, communicate her belief that discrimination is
occurring to the employer. It is not enough for the employee merely to complain
about a certain policy or certain behavior of co-workers and rely on the employer to
infer that discrimination has occurred.’” Murphy v. City of Aventura, 616 F. Supp.
2d 1267, 1280 (S.D. Fla. 2009) aff'd, 383 F. App'x 915 (11th Cir. 2010) quoting
Webb v. R & B Holding Co., Inc., 992 F.Supp. 1382, 1389 (S.D.Fla.1998). The
retaliation claim fails.
4.

Hostile Work Environment

The Eleventh Circuit has noted that
to prove a hostile work environment under 42 U.S.C. § 2000e–2(a)(1),
a plaintiff must show that her employer discriminated because of her
membership in a protected group, and that the offensive conduct was
either severe or pervasive enough to alter the terms or conditions of
employment; second, Title VII is not a civility code, and not all profane
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or sexual language or conduct will constitute discrimination in the terms
and conditions of employment; third, workplace conduct cannot be
viewed in isolation, but rather is to be viewed cumulatively, and in its
social context; and fourth, a plaintiff can prove a hostile work
environment by showing severe or pervasive discrimination directed
against her protected group, even if she herself is not individually
singled out in the offensive conduct.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010). In this
case, the complaint discussed only one isolated incident where Woods allegedly
referred to the plaintiff as a “black mother fucker.” No other incidents are alleged
generally or specifically. The plaintiff has not stated a plausible hostile work
environment claim.
B.

State Law Claims

The plaintiff alleges Alabama state law claims of invasion of privacy and
intentional infliction of emotional distress. The defendant moves to dismiss both.
1.

Invasion of Privacy

In Alabama, “the tort of invasion of privacy [is] the intentional wrongful
intrusion into one’s private activities in such a manner as to outrage or cause mental
suffering, shame, or humiliation to a person of ordinary sensibilities.” Rosen v.
Montgomery Surgical Ctr., 825 So.2d 735, 737 (Ala.2001). The plaintiff makes no
argument in support of this claim in his reply brief. The court is aware of no Eleventh
Circuit opinion holding that failure to oppose a motion to dismiss constitutes
14

abandonment of a claim. However, in an unpublished decision, Byrd v. Peet, 249
Fed. Appx. 155 (11th Cir. 2007), in dicta, the Eleventh Circuit stated that a plaintiff’s
failure, in responding to a motion for judgment on the pleadings, to respond to that
motion as to specific claims did not constitute an abandonment of those claims. Id
at 157. This court finds the reasoning set out in Byrd, as expanded by Chief Judge
William H. Steele in Gailes v. Marengo County Sheriff’s Dept., — F. Supp. 2d —,
2013 WL 81227 *4 (S.D. Ala. Jan. 4, 2013), persuasive.
In sum, until the Eleventh Circuit (or Supreme Court) speaks more
clearly to the issue or a sister Court (or litigant) provides a more
compelling rationale, the Court will not treat a claim as abandoned
merely because the plaintiff has not defended it in opposition to a
motion to dismiss. Instead, the Court will review the merits of the
defendant's position and, if it is clearly incorrect or inadequate to satisfy
the defendant’s initial burden, will deny the motion despite the
plaintiff’s failure to respond. If, however, the defendant’s presentation
is adequate to satisfy its initial burden, the Court will not deny the
motion based on arguments the plaintiff could have made but by silence
elected not to raise.
Gailes, 2013 WL 81227, at *4 -5 (footnotes omitted). See also, Stewart v. Sanofi
Aventis U.S., LLC, No. 4:13-CV-539-VEH, 2013 WL 1834562 *2 (N.D. Ala. Apr. 30,
2013) (stating that a plaintiff’s failure to file any opposition to a motion to dismiss
“does not automatically mean the motion is due to be granted”). Accordingly, this
court will not consider the plaintiff’s invasion of privacy claim abandoned. However,
the complaint contains no factual allegations that would support such a claim. It is
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therefore due to be dismissed on that basis.
2.

Intentional Infliction of Emotional Distress

The defendant argues that none of the conduct alleged in the complaint
amounts to the tort of intentional infliction of emotional distress. (Doc. 8, pp. 15-16.)
The Alabama Supreme Court has stated:
The intentional infliction of emotional distress is also known as
the tort of outrage. See Chaney v. Ala. West–AL, LLC, 22 So.3d 488
(Ala.Civ.App.2008).
“This Court first recognized the tort of outrage in 1980, in
American Road Service Co. v. Inmon, 394 So.2d 361
(Ala.1980). In Inmon this Court recognized the tort
proposed by the Restatement (Second) of Torts § 46
(1948), holding:
“ ‘[O]ne who by extreme and outrageous
conduct intentionally or recklessly causes
severe emotional distress to another is subject
to liability for such emotional distress and for
bodily harm resulting from the distress. The
emotional distress thereunder must be so
severe that no reasonable person could be
expected to endure it. Any recovery must be
reasonable and justified under the
circumstances, liability ensuing only when the
conduct is extreme. Comment, Restatement[
(Second) of Torts § 46], at 78 [ (1948) ]. By
extreme we refer to conduct 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. Comment
16

(d), Restatement, supra at 72.’
“394 So.2d at 365. The Court noted in Inmon that the tort
of outrage
“ ‘does not recognize recovery for “mere
insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Comment,
Restatement, supra, at 73. The principle
applies only to unprivileged, intentional or
reckless conduct of an extreme and
outrageous nature, and only that which causes
severe emotional distress.’
“394 So.2d at 364–65. As this Court has since held:
“ ‘The tort of outrage is an extremely limited
cause of action. It is so limited that this Court
has recognized it in regard to only three kinds
of conduct: (1) wrongful conduct in the
family-burial context, Whitt v. Hulsey, 519
So.2d 901 (Ala.1987); (2) barbaric methods
employed to coerce an insurance settlement,
National Sec. Fire & Cas. Co. v. Bowen, 447
So.2d 133 (Ala.1983); and (3) egregious
sexual harassment, Busby v. Truswal Sys.
Corp., 551 So.2d 322 (Ala.1989). See also
Michael L. Roberts and Gregory S. Cusimano,
Alabama Tort Law, § 23.0 (2d ed.1996). In
order to recover, a plaintiff must demonstrate
that the defendant's conduct “(1) was
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.” Green Tree
Acceptance, Inc. v. Standridge, 565 So.2d 38,
44 (Ala.1990) (citing American Road Service
17

Co. v. Inmon [, 394 So.2d 361 (Ala.1980) ] ).’
“Potts v. Hayes, 771 So.2d 462, 465 (Ala.2000). That is not
to say, however, that the tort of outrage is viable in only the
three circumstances noted in Potts. Recently, this Court
affirmed a judgment on a tort-of-outrage claim asserted
against a family physician who, when asked by a teenage
boy's mother to counsel the boy concerning his stress over
his parents' divorce, instead began exchanging addictive
prescription drugs for homosexual sex for a number of
years, resulting in the boy's drug addiction. See O'Rear v.
B.H., 69 So.3d 106 (Ala.2011). It is clear, however, that the
tort of outrage is viable only when the conduct 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.’
” Horne v. TGM Assocs., L.P., 56 So.3d 615, 631
(Ala.2010) (quoting Inmon, 394 So.2d at 365).”
Little v. Robinson, 72 So.3d 1168, 1172–73 (Ala.2011).
Ex parte Bole, 103 So. 3d 40, 51-53 (Ala. 2012). See also, Short v. Mando Am.
Corp., 805 F. Supp. 2d 1246, 1277 (M.D. Ala. 2011) (race discrimination and
retaliation claims do not fall within the three limited circumstances recognized by the
Alabama Supreme Court for the tort of outrage).
The plaintiff cites Rice v. United Ins. Co. of Am., 465 So. 2d 1100, 1103 (Ala.
1984), for the proposition that [t]he Alabama Supreme Court has held that some types
of discrimination in the work place may constitute the tort of outrage.” (Doc. 13, p.
7.) In that case, the Alabama Supreme Court held that a plaintiff could bring an

18

outrage claim in addition to a Title VII claim because a “cause of action for
intentional infliction of emotional distress is not subsumed by Title VII.” It does not
stand for the proposition that the facts of this case support an outrage claim.
The types of conduct in the workplace that would constitute outrage were
summarized by Judge Steele of the Southern District of Alabama in his opinion in
Lees v. Sea Breeze Health Care Ctr., Inc., 391 F. Supp. 2d 1103, 1108 (S.D. Ala.
2005), where he stated:
[T]he line of demarcation between non-actionable outrage claims and
actionable outrage claims in the employment arena is found in the
determination of whether the termination is for reasons that contravene
public policy. Where a plaintiff complains that her discharge
contravenes public policy, particularly if the discharge was the
culmination of a protracted pattern of discrimination in violation of
public policy, she may properly pursue a claim of outrage because the
violation of public policy furnishes the requisite “sound of fury” to
accompany the termination. Smitherman, 872 So.2d at 840 (outrage
claim not cognizable if termination is “not for a reason which
contravenes public policy,” and if termination was not accompanied
with “sound of fury”) (quoting Harrell, 495 So.2d at 1387); see also
Wyatt v. BellSouth, Inc., 998 F.Supp. 1303, 1312 (M.D.Ala.1998) (under
Alabama law, “the discharge of an employee rises to the level of the tort
of outrage only if the discharge violates public policy”). Alabama
courts have construed this standard to authorize outrage claims where
a plaintiff is complaining about discrimination in retaliation for
exercising the fundamental right to marry, or about intrusion on her
federally protected right to be free from gender discrimination. See Rice
v. United Ins. Co. of America, 465 So.2d 1100, 1102 (Ala.1984) (trial
court erred in dismissing outrage claim where pregnant employee
claimed employer discriminated because of her pregnancy by engaging
in a pattern of conduct over a period of several months aimed at forcing
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her to leave her job, thereby violating plaintiff's federally protected right
to be free from discrimination based on sex); Cunningham v. Dabbs, 703
So.2d 979, 983 (Ala.Civ.App.1997) (finding jury question on outrage
claim where plaintiff did not claim wrongful discharge of at-will
employee, but instead alleged a pattern of harassment and a termination
of employment in violation of her fundamental right to marry).
Lees v. Sea Breeze Health Care Ctr., Inc., 391 F. Supp. 2d 1103, 1108 (S.D. Ala. 2005).
The allegations alleged in the complaint center on two altercations. In the first,
the plaintiff alleges that only (racially offensive) words were uttered on one occasion.
In the second, he alleges that he was physically assaulted (later that same day). The
plaintiff correctly argues that the court must treat these allegations as true in
determining that there is an outrage claim. (Doc. 13, p. 7.) Even so, these are not
allegations of conduct which was “extreme and outrageous,” like those which have
been recognized in Alabama in the past. There is no allegation of conduct which
contravenes public policy or carries with it a “sound of fury.” The outrage claim
fails.
IV.

CONCLUSION
Based on the foregoing the defendant’s motion to dismiss is GRANTED in

part and DENIED in part. The motion is DENIED to the extent that it seeks
dismissal of the plaintiff’s Title VII disparate treatment and 42 U.S.C. § 1981 race
discrimination claims based upon his suspension for engaging in the fight on

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December 7, 2011. It is GRANTED in all other respects and as to all other counts.
DONE and ORDERED this 20th day of June, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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