Clisby v. Hewlett Packard Enterprise Company

Filing 29

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/08/2022. (AKD)

FILED
2022 Apr-08 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAMATHI CLISBY,
Plaintiff,
v.
HP INC.,
Defendant.

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Civil Action Number
2:21-CV-01147-AKK

MEMORANDUM OPINION
After Kamathi Clisby purchased computer equipment from HP Inc., he
inquired as to the purportedly erroneous sales tax charged on his purchase. Rather
than assisting Clisby, the HP associate with whom Clisby spoke threatened and
berated Clisby with racial slurs. Clisby subsequently filed suit against HP, alleging
one violation of 42 U.S.C. § 1981 and state-law claims for intentional infliction of
emotional distress; “tortious misconduct”; negligence; vicarious liability; and
negligent/wanton hiring, training, and supervision/retention for this hateful conduct.
See doc. 19. He also seeks punitive damages and attorney’s fees. Id.
Pending before the court is HP’s motion to dismiss, in which it contends that
the § 1981 claim cannot proceed because Clisby “was not prevented from making
the purchase of the computer equipment and had no loss of any actual contractual
interest,” doc. 23 at 4, and that Clisby fails to plead facts supporting his state-law

claims, id. at 8–13. The motion is briefed, docs. 27; 28, and ripe for resolution.
After considering the pleadings and the briefing,1 the court finds that the motion,
doc. 23, is due to be granted as to the state-law claims because the complaint fails to
allege facts plausibly demonstrating HP’s liability for the alleged torts.
I.
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(a)(2). This does not require
“detailed factual allegations,” but it does demand more than “unadorned”
accusations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Thus, mere “labels and conclusions” or
“formulaic recitation[s] of the elements of a cause of action” are insufficient. Id.;
Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012).

1

After HP filed the instant motion, Clisby requested leave to amend his complaint. See doc. 24.
The court denied Clisby’s motion, given that he had already thrice amended his complaint,
including once without seeking leave beforehand. See docs. 19; 20; 25. Clisby then filed a motion
for reconsideration that attached a proposed complaint. Docs. 26; 26-1. The factual allegations
and claims in the operative complaint and the proposed complaint are substantially similar and, in
many instances, identical. Compare doc. 19 with doc. 26-1. It appears the proposed complaint
primarily reaffirms that Clisby did not believe HP should have charged him sales tax and that the
HP associate used racial slurs in his conversations with Clisby. Because Clisby pleads these
allegations in the operative complaint, albeit less clearly, the alterations he seeks to make do not
change the court’s analysis. Thus, the court derives the relevant allegations from the third amended
complaint, doc. 19, and the motion for reconsideration, doc. 26, is due to be denied. See Sanzone
v. Hartford Life & Accident Ins. Co., 519 F. Supp. 2d 1250, 1255 (S.D. Fla. 2007) (“[A] motion
for reconsideration may be granted based on three major grounds: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or
prevent manifest injustice.”).

2

If a complaint fails to state a claim upon which relief can be granted, the court
must dismiss it. FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss under Rule
12(b)(6), a complaint must contain sufficient facts, taken as true, to state a claim that
is “plausible on its face.” Iqbal, 556 U.S. at 678; Resnick, 693 F.3d at 1325.
“Plausibility is the key, as the well-pled allegations must nudge the claim across the
line from conceivable to plausible.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d
1327, 1333 (11th Cir. 2010) (internal quotation marks omitted). A facially plausible
claim “pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 555 U.S. at 678. The
court draws from its “judicial experience and common sense” to resolve this contextspecific inquiry. Id. at 679; Resnick, 693 F.3d at 1324.
II.
In November 2019, Clisby purchased a computer from HP and then called HP
“regarding sales tax on [the] computer that he had just purchased.” Doc. 19 at ¶ 6.
In the call with an HP associate, Clisby “did not agree with the HP employee on how
the sales tax was determined.” Id. ¶ 7. The HP associate subsequently berated
Clisby and threatened his life. See id. ¶¶ 9–12.
Over the next two days, the HP associate sent Clisby emails in which the
associate threatened to “kick [Clisby’s] ass out” and “hold [his] neck and squeeez
[sic] it” and called Clisby racial slurs and derogatory words. See id. ¶ 11; doc. 19-1
3

at 1. Fearing for his life, Clisby reported these emails to police in Atlanta, where he
was visiting at the time, and to HP’s customer relations department. See doc. 19 at
¶¶ 12–13.

HP Customer Relations Manager Jeffery Blanchard subsequently

refunded Clisby the cost of the computer equipment. Id. ¶ 14; doc. 19-1 at 2.
Although Clisby provided copies of the emails to Blanchard, Clisby alleges that “no
other person affiliated with HP has contacted [him]” and that “the employee was still
employed by HP and working after the incident.” Doc. 19 at ¶¶ 16–17. Clisby filed
this lawsuit seeking relief for his humiliation, fear, depression, anxiety, and
emotional distress. Id. ¶ 18.
III.
Clisby pleads one violation of 42 U.S.C. § 1981 and state-law claims for
intentional infliction of emotional distress; “tortious misconduct”; negligence;
vicarious liability; and negligent/wanton hiring, training, and supervision/retention.
Doc. 19. For its part, HP contends that the § 1981 claim must fail because Clisby
successfully made his purchase, doc. 23 at 4, and that he does not plead facts
supporting the state-law claims, id. at 8–13.
A.
To establish a violation of 42 U.S.C. § 1981, 2 Clisby must ultimately show
that (1) he is a “member of a racial minority”; (2) HP “intended to discriminate on

2

Section 1981 provides:

4

the basis of race”; and (3) “the discrimination concerned one or more of the activities
enumerated in the statute.” See Lopez v. Target Corp., 676 F.3d 1230, 1233 (11th
Cir. 2012); Kinnon v. Arcoub, Gopman, & Assocs., Inc., 490 F.3d 886, 891 (11th
Cir. 2007). Thus, to survive dismissal, Clisby’s complaint must contain facts
plausibly demonstrating that HP’s racial discrimination caused him a contractual
injury. See Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291, 1296 (11th Cir. 2021).
Clisby, who is African American, pleads that an HP associate berated him
with racist slurs and threats. See doc. 19. HP does not seem to contest that Clisby
“is a member of a racial minority” and that the HP associate “intended to
discriminate on the basis of [Clisby’s] race.” See also Ziyadat, 3 F.4th at 1296;
Kinnon, 490 F.3d at 891. Thus, the viability of the § 1981 claim turns on whether
Clisby plausibly alleges that he suffered a resulting contractual injury.
1.
Although “there exists scant authority in our [C]ircuit applying § 1981 to
claims brought by customers against commercial establishments,” Kinnon, 490 F.3d

All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens . . . .
42 U.S.C. § 1981(a). The phrase “to make and enforce contracts” includes “the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b).

5

at 891, several instructive cases inform the court’s analysis. The court begins with
Arguello v. Conoco, Inc., 330 F.3d 355 (5th Cir. 2003), because the Eleventh Circuit
has adopted its reasoning, and Kinnon, where the Circuit “articulated the controlling
standard for § 1981 claims in the retail context.” Kinnon, 490 F.3d at 891; Lopez,
676 F.3d at 1233.
In Arguello, the Fifth Circuit addressed the § 1981 claims of a father and
daughter on their appeal of a judgment as a matter of law. See 330 F.3d at 356.
There, a gas-station clerk made racist comments toward the daughter, prompting the
father to walk out of the store. See id. at 357. The Fifth Circuit affirmed the
judgment as a matter of law against the plaintiffs, holding that (1) the father
“voluntarily” abandoned his purchase following the clerk’s mistreatment of his
daughter, so the clerk “did not actually interfere with an attempted purchase”; and
(2) the daughter “successfully completed her transaction” by ultimately purchasing
beverages from the gas station. Id. at 359. The Fifth Circuit rejected the plaintiffs’
“broader interpretation of the § 1981 right to ‘make and enforce contracts’ on equal
terms such that it would cover conduct occurring after the consummation of a retailsales contract.” Id. Rather, recognizing that § 1981 protected “the opportunity to
enter into negotiations on equal terms,” the Fifth Circuit noted that “there is no
continuing contractual relationship” where “the relationship is based on a single
discrete transaction—the purchase of goods.” Id. at 360. The Fifth Circuit also
6

distinguished discrimination in the retail context from “discriminatory service” in
restaurants, because dining “generally involves a contractual relationship that
continues over the course of the meal and entitles the customer to benefits in addition
to the meal purchased.” Id. at 360–61.
In Kinnon, this Circuit held that a plaintiff who ordered food and refused to
accept the two-hour-late delivery failed to establish a § 1981 violation after the
restaurant manager demanded payment by leaving her racist messages. See 490 F.3d
at 888, 892. The Circuit noted that the plaintiff initially “successfully entered into a
verbal contract . . . for the delivery of pizza, and when the delivery was
late, . . . successfully took steps to terminate the contract” by refusing the delivery.
Id. Although the manager “sought to enforce putative contractual rights against [the
plaintiff] at the time the discrimination occurred,” the Circuit held this could not
support a § 1981 claim because “[the plaintiff] herself was not denied any of the
rights enumerated in the statute.”

Id.

The Circuit also remarked that,

“as in Arguello, the discriminatory conduct occurred after the contract at issue had
been terminated.” Id.
In Lopez, this Circuit rejected a plaintiff’s § 1981 claim at the motion-todismiss stage after a cashier made racist comments and refused to process the
plaintiff’s purchases. See 676 F.3d at 1231–32. Because the plaintiff “proceeded to
a different register, where he was able to purchase his items,” the Circuit opined that
7

he successfully completed his transaction, “buying his desired goods at the same
price and using the same payment method as any other customer.” Id. at 1234. The
Circuit held that this precluded the plaintiff’s claim because he was not “‘actually
denied the ability to engage in [some] contractual activity’ protected by the statute.”
See id. at 1235. The Circuit explained:
We are not faced here with circumstances where a customer was
refused service by the retail store, was required to contract on different
terms, got frustrated and left the store, or was in any other way denied
the right to make, enforce, or terminate a contract. Fundamentally, [the
plaintiff’s] claim boils down to the assertion that he was delayed and
mistreated during the process of making his purchase. But this
allegation, standing alone, cannot establish a § 1981 claim.
Id.
In Middleton v. Wells Fargo Bank, N.A., a court in this Circuit concluded that
a plaintiff sufficiently pleaded a § 1981 claim after bank employees baselessly
claimed her check was fraudulent and declined to cash it. 474 F. Supp. 3d 1290,
1296–97 (N.D. Ga. 2020). The court distinguished Lopez by noting that the plaintiff
could not complete her transaction because two managers refused her service and
asked her to leave while they called the police. Id. at 1296. Indeed, “[o]nly after
the . . . investigation concluded that the check was not fraudulent, did the defendant,
inexplicably, alter course and cash the plaintiff’s check.” Id. at 1297. The court
concluded that the bank “thwarted” the plaintiff’s first attempt at service and that
“[t]he fact that she was successful in her second attempt [was] immaterial.” Id.
8

Finally, in Don v. Equinox Brickell, Inc., another court in this Circuit declined
to dismiss a plaintiff’s § 1981 claim where the plaintiff enrolled in a discounted gym
membership, but a gym manager denied the plaintiff’s attempt to challenge the
gym’s decision to “unilaterally and discriminatorily terminate[]” his membership
contract. See No. 20-25322-Civ-Scola, 2021 WL 2453150, at *1, *3 (S.D. Fla. June
16, 2021). The court explained that the plaintiff, although able to enter the contract,
was unable to enjoy his rights under it because he “was refused the opportunity” to
challenge the termination. Id. at *3. The court also remarked that the defendantgym’s arguments, which relied on Arguello, Kinnon, and Lopez, were “premature”
at the motion-to-dismiss stage and “[were] better left decided at the summary
judgment stage” following the benefit of discovery. Id.
2.
Upon review of these authorities, the court concludes that Clisby pleads
sufficient facts for his § 1981 claim to survive a motion to dismiss. At first blush,
HP marshals aspects of the law that suggest that the contractual relationship had
ended by the time of the associate’s conduct. But several of Clisby’s allegations
distinguish his claim from those in Arguello, Kinnon, and Lopez and more closely
resemble those in Middleton and Don.
As a preliminary matter, limiting the transaction simply to the initial computer
purchase ignores that Clisby allegedly contacted HP to inquire as to the potentially
9

mistaken terms of the purchase, the sales tax.

See doc. 19.

Construing the

allegations in Clisby’s favor, he purchased a computer from HP and immediately
called HP because he believed the company erroneously charged or miscalculated
the sales tax. The associate prevented him from correcting the purchase amount or
learning why HP perhaps improperly charged him sales tax, ostensible components
of his contract with the company. See doc. 27 at 3 (“HP charged [Clisby] sales tax[,]
and HP would not allow [him] the opportunity to discuss or address same based on
the threats and racial slurs directed at [him].”). In other words, Clisby claims his
call sought to correct or ascertain the source of an error in his transaction—an inquiry
allegedly impeded by the associate who threatened him while using racist epithets.
These contentions plausibly allege that Clisby “was actually denied the ability to
engage in [some] contractual activity protected by [§ 1981].” See Lopez, 676 F.3d
at 1235. See also Don, 2021 WL 2453150, at *1, *3.
Moreover, this matter comes before the court on HP’s motion to dismiss. It
is possible that, with the benefit of discovery, one or both parties will shed light on
Clisby’s qualm with the sales tax on his purchase or demonstrate that the purchase
was subject to non-negotiable sales tax—facts that might bear on HP’s § 1981

10

liability. At this stage, however, Clisby alleges facts that plausibly indicate HP’s
interference with his contractual interest as a result of his race under § 1981. 3
B.
The court turns now to Clisby’s claims under Alabama law. Before delving
into each one, however, the court must frame Clisby’s potential bases for liability
against HP, because most of his claims are predicated on the allegedly tortious
conduct of the associate alone. 4 Alabama law provides two mechanisms by which
an employer can be liable for its employee’s acts:
[An] employer is vicariously liable for acts of its employee that were
done for the employer’s benefit, i.e., acts done in the line and scope of
employment or . . . done for the furtherance of the employer’s interest.
The employer is directly liable for its own conduct if it authorizes or
participates in the employee’s acts or ratifies the employee’s conduct
after it learns of the action.
Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 984–85 (Ala. 1999);
Potts v. BE & K Const. Co., 604 So. 2d 398, 400 (Ala. 1992). 5 With the exception

3

The full refund that HP provided, see docs. 23 at 7; 28 at 2, does not negate that the associate
allegedly hindered Clisby in correcting or ascertaining the terms of his contract in the first instance.
As pleaded, the associate purportedly prevented Clisby from enforcing, terminating, or modifying
his contract on the same footing “as is enjoyed by white citizens.” See 42 U.S.C. § 1981(a); Lopez,
676 F.3d at 1235; Middleton, 474 F. Supp. 3d at 1296–97; Don, 2021 WL 2453150, at *3.
Permitting a company to discriminate and escape § 1981 liability by initiating a refund after the
customer had suffered the loss of a contractual right would defy the language of the statute.
4

Curiously, HP sidesteps this issue in its motion, opting instead to meet Clisby’s claims on their
merits. See doc. 23 at 8–13.
5

Put another way, for an employer to be liable for the intentional torts of its employee, the plaintiff
must ultimately show that (1) the employee’s wrongful acts “were in the line and scope of his
employment,” (2) the acts “were in furtherance of the business of [the employer],” or (3) the

11

of the negligent/wanton hiring, training, and supervision/retention claim, Clisby
does not allege HP’s direct participation in the conduct that underlies his claims. See
generally doc. 19. Rather, Clisby suggests that HP ratified the associate’s conduct
by failing to terminate him, see id. at 5, and that the associate’s conduct fell within
the scope of his employment, id. at 8. The court describes these theories before
turning to the specific tort claims.
“In order to show that [HP] ratified [the associate’s] conduct, [Clisby] must
show that [HP] either expressly adopted [the associate’s] behavior or that it
implicitly approved of it.” See Potts, 604 So. 2d at 400. To this end, in addition to
sufficiently pleading the associate’s allegedly tortious conduct, Clisby must allege
facts plausibly demonstrating that HP
(1) had actual knowledge of the tortious conduct of the [associate] and
that the tortious conduct was directed at and visited upon [Clisby];
(2) that based upon this knowledge, [HP] knew, or should have known,
that such conduct constituted . . . a continuing tort; and (3) that [HP]
failed to take ‘adequate’ steps to remedy the situation.
See id. Clisby pleads facts permitting the plausible inferences that HP knew of the
associate’s conduct and that it was potentially tortious: Clisby allegedly reported the
behavior to HP; spoke with a customer-relations manager, who vowed to investigate
it; and received a full refund. Docs. 19 at 4–5; 19-1 at 2. The remaining issues are

employer “participated in, authorized, or ratified the wrongful acts.” Potts, 604 So. 2d at 400
(quoting Joyner v. AAA Cooper Transp., 477 So.2d 364, 365 (Ala. 1985)).

12

whether Clisby sufficiently pleads that the conduct was tortious and whether HP
took adequate, “reasonably calculated” steps to stop the behavior, questions that the
court addresses in greater depth below. See Potts, 604 So. 2d at 401.
As to vicarious liability, which Clisby pleads as a separate count, doc. 19 at
8, Clisby must allege facts plausibly demonstrating that the associate’s conduct
“[was] done for [HP’s] benefit, i.e., . . . in the line and scope of [the associate’s]
employment or . . . for the furtherance of [HP’s] interest.” See Potts, 604 So. 2d at
400. Generally, where an employer hires an individual to perform a service,
“whatever he does to that end, or in furtherance of the employment” is within the
scope of the employment. See E. Ala. Behavioral Med., P.C. v. Chancey, 883 So.
2d 162, 167 (Ala. 2003) (quoting Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d
638, 642–43 (Ala. 1970)). However, this does not apply to acts “impelled by
motives that are wholly personal” or to “gratif[y] [the employee’s] own feelings or
resentment . . . .” Id.
Applying these principles, the court turns to whether Clisby’s complaint
pleads plausible tort claims for which HP can be directly or vicariously liable.
1.
First, Clisby pleads that the associate’s conduct constituted intentional
infliction of emotional distress. See doc. 19 at 6. “[O]ne who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress to
13

another is subject to liability for such emotional distress and for bodily harm
resulting from the distress,” where the emotional distress is “so severe that no
reasonable person could be expected to endure it.” Little v. Robinson, 72 So. 3d
1168, 1172 (Ala. 2011). This “extremely limited cause of action” 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.’” Id. at 1173. 6
Clisby pleads that the associate berated him with racist epithets and threats for
several days. See doc. 19 at 3. The emails Clisby attaches to his complaint contain
grotesque, bigoted insinuations about Clisby’s race and nationality, threaten to
strangle him, and warn that the associate “will remember [Clisby’s] name and find
[him],” all while using racial slurs and pejorative language. See doc. 19-1 at 1. Upon
receiving these emails, Clisby allegedly feared for his life and reported the incident
to local police. Doc. 19 at 4. He also asserts that he “experienced humiliation,
extreme fear for safety and liberty, depression, extreme anxiety, and emotional
distress” as a result of the incident. Id. at 5. The alleged conduct therefore exceeded
“mere insults, indignities, threats, annoyances, petty oppressions, and other

6

Alabama courts have recognized this tort with respect to three kinds of conduct: “wrongful
conduct in the family-burial context,” “barbaric methods employed to coerce an insurance
settlement,” and “egregious sexual harassment.” Id. at 1172 (quoting Potts v. Hayes, 771 So. 2d
462, 465 (Ala. 2000)). But the tort can extend beyond these contexts. Id. at 1173.

14

trivialities,” see Am. Road Serv. Co. v. Inmon, 394 So. 2d 361, 364–65 (Ala. 1980),
and Clisby plausibly pleads that the HP associate committed outrageous behavior.
However, Clisby must plead facts plausibly rendering HP liable for this
conduct, directly or vicariously. As to direct liability, Clisby must allege facts
permitting the inference that HP ratified the associate’s behavior by failing to take
“adequate” steps to prevent its reoccurrence. See Potts, 601 So. 2d at 400–01. 7 On
this front, Clisby pleads that (1) he contacted HP’s customer relations department to
report the associate, (2) a manager subsequently gave him a refund, (3) the manager
“also requested a copy of the emails and told [Clisby] that the incident would be
investigated,” and (4) the associate “was still employed by HP . . . after the
incident.” Doc. 19 at 4–5.
These allegations fail to suggest that HP ratified or approved the associate’s
misconduct. To the contrary, the allegations, if true, demonstrate that HP reviewed
the offensive emails and vowed to investigate the conduct, thus taking steps
reasonably calculated to prevent the incident from reoccurring. See Joyner, 477 So.
2d at 365. That HP allegedly continued to employ the associate, without more, does

7

For example, in Joyner, the Supreme Court of Alabama held in favor of an employer who, upon
receiving complaints of harassment, conducted a preliminary investigation and informed the
alleged offender that it would terminate him and conduct a full investigation if it received another
complaint. See 477 So. 2d at 365.

15

not illustrate that HP approved his purported conduct, and Clisby’s complaint
therefore fails to plead HP’s direct liability. See id.
For an employer to be vicariously liable, an employee’s outrageous conduct
must generally be “perpetrated as a means to further the defendant corporation’s
business.” See Busby v. Truswal Sys. Corp., 551 So. 2d 322, 327 (Ala. 1989) (citing
Levite Undertakers Co. v. Griggs, 495 So. 2d 63 (Ala. 1986); Nat’l Sec. Fire & Cas.
Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); Ridout’s-Brown Serv., Inc. v. Holloway,
397 So. 2d 125 (Ala. 1981)). By contrast, an employer is not vicariously liable where
the employee’s purportedly outrageous conduct was aimed purely at personal desires
and “no corporate purpose could conceivably be served” by the behavior. See id.
Clisby’s complaint cursorily restates certain elements of vicarious liability 8
and does not plead facts from which the court can plausibly infer that the associate
acted to further HP’s business. Certainly, the original dispute between Clisby and
the associate allegedly began with a disagreement over the calculation of the sales
tax on Clisby’s purchase, which arguably came within the scope of the associate’s

8

The operative complaint reads, in relevant part:
At the time and place of the incident made basis of this suit, [the] HP employee
who berated [Clisby] with racial epithets and threats was acting in the line and
scope of this employment . . . . The HP employee was an agent and/or employee of
HP. HP was the master or principal of the HP employee. HP is vicariously liable
for his actions.

Doc. 19 at 8. The proposed amended complaint does not allege any additional factual content to
support these legal conclusions. See doc. 26-1 at 9.

16

employment. However, Clisby does not allege that the associate’s racist tirade—
which continued after the initial conversation—stemmed from anything other than
personal motives. Given that “[t]he tort of outrage . . . should not be the basis for
vicarious or respondeat superior liability except in the most compelling
circumstances,” Busby, 551 So. 2d at 327, Clisby’s complaint fails to plead facts
plausibly demonstrating HP’s vicarious liability.
In sum, although Clisby’s complaint plausibly states a claim for intentional
infliction of emotional distress against the associate, it fails to plead facts suggesting
that HP is directly or vicariously liable for that conduct. Because Clisby sues only
HP, this claim is due to be dismissed.
2.
Clisby also pleads one count for “tortious misconduct.” Doc. 19 at 6–7.
Allegedly, HP owed a duty to “protect [Clisby] against the use of any discriminatory
requirements tending to humiliate, mollify, [or] wound the feelings of [Clisby] and
from threats,” id. at 7, and the associate’s “abusive words, threats, and racial slurs”
were “grossly negligent, wanton and willful,” doc. 27 at 7–8. However, as HP points
out, Clisby does not plead facts or cite law distinguishing this claim from his
negligence claim, see docs. 23 at 10; 28 at 4, and the court has not located a separate
cause of action for “tortious misconduct” in its own research. See, e.g., Anthony v.
Datcher, 321 So. 3d 643, 654 (Ala. 2020) (using “tortious misconduct” generally to
17

refer to two separate claims for negligence and breach of fiduciary duty). Because
Clisby’s tortious misconduct claim does not specify a particular tort, it appears to be
subsumed within his other claims and is due to be dismissed.
3.
Clisby next pleads a claim for negligence, alleging that HP owed a duty to
“properly treat [Clisby] in a reasonable manner” and that HP “breached its duty when
it made racial threats, racial slurs and threatened and made [Clisby] fearful for his
own life.” Doc. 19 at 7–8.
The traditional elements of negligence “are a duty to a foreseeable plaintiff,
breach of that duty, causation, and damage.” AALAR, Ltd. v. Francis, 716 So. 2d
1141, 1144 (Ala. 1998); Burton v. MAPCO Exp., Inc., 47 F. Supp. 3d 1279, 1286
(N.D. Ala. 2014). “A duty of care arises when it is foreseeable that harm may result
if care is not exercised.” Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839,
857 (Ala. 2002). Alabama law limits the recovery of “mental anguish damages” to
plaintiffs sustaining physical injury due to a defendant’s negligence or those “who
are placed in immediate risk of physical harm by that conduct.” 9 Birmingham Coal

9

“[F]ear for one’s own physical safety” has been “recognized as a discrete element of harm.”
AALAR, Ltd., 716 So. 2d at 1148. To recover for emotional distress, the plaintiff must ultimately
show “not only that ‘it was reasonably foreseeable to [the defendant] that [the plaintiff] would be
placed at risk of physical injury’ but also that ‘[the plaintiff], in fact, suffered emotional distress.’”
Ex parte Grand Manor, Inc., 778 So. 2d 173, 180 (Ala. 2000).

18

& Coke Co., Inc. v. Johnson, 10 So. 3d 993, 999 (Ala. 2008); Wallace v. SunTrust
Mortg., Inc., 974 F. Supp. 2d 1358, 1370 (S.D. Ala. 2013).
As HP’s customer, Clisby plausibly pleads that the company owed him a duty
of care as he transacted for computer equipment and followed up about his purchase.
Cf. Flagstar Enters., Inc. v. Davis, 709 So. 2d 1132, 1139 (Ala. 1997) (noting that it
“[could not] be seriously disputed” that a restaurant owed a duty of care to a
customer). But Clisby alleges that HP breached this duty by using racial slurs and
threatening his life—conduct of the associate alone. To the extent that Clisby seeks
to hold HP liable for its own negligence based on this conduct, this claim might be
subsumed within his negligent/wanton hiring, training, and supervision/retention
claim. Alternatively, Clisby may be seeking to hold HP vicariously liable for the
associate’s alleged negligence. 10
Assuming the latter, the court turns to the associate’s alleged negligence. On
this point, Clisby claims that the associate’s racist slurs and threats breached the duty
of care and that this caused Clisby to suffer humiliation, depression, anxiety, distress,

10

The complaint is not a model of clarity on this—or perhaps any—point. While Clisby pleads a
count for “respondent [sic] superior,” doc. 19 at 8, suggesting that vicarious liability is his preferred
theory, his negligence claim states that “HP breached its duty when it made racial threats, racial
slurs and threatened and made [Clisby] fearful for his own life,” id. at 7 (emphasis added). Again,
this allegation can be reasonably construed to plead a negligent hiring/retention-type claim, given
that Clisby essentially states that HP breached a duty of care because of its employee’s misconduct.
However, for the sake of completeness, and taking the allegations in Clisby’s favor, the court also
analyzes his claim under theories of HP’s potential direct and vicarious liability for the associate’s
alleged negligence.

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and fear. Doc. 19 at 7–8. HP, for its part, does not challenge these elements and
instead zeroes in on Clisby’s alleged damages, arguing that he “was not in any ‘zoneof-danger’” because the associate’s comments did not create an “immediate risk of
physical harm.” Doc. 23 at 11. However, Clisby allegedly reported the associate’s
conduct to police out of fear for his safety, and he may not have known where the
associate was located, whether the associate had access to his location and
identifying information, and how fast the associate could find him. Thus, HP’s
argument is unavailing, and Clisby might plead a plausible negligence claim against
the associate.
The issue again becomes whether Clisby plausibly alleges that HP is directly
liable for ratifying the associate’s negligence or vicariously liable because the
associate acted in the scope of his employment. See Potts, 604 So. 2d at 400. But
Clisby fails to plead facts plausibly demonstrating that HP ratified the employee’s
alleged conduct. In fact, on Clisby’s account of the facts, HP vowed to investigate
the incident. See supra § III.B.2. 11 And save for a conclusory statement that the
associate “was acting in the line and scope of [his] employment,” neither the
complaint nor the proposed amended complaint states facts reasonably
demonstrating that the associate acted to serve HP’s interests when he harassed and

11

Again, that HP purportedly failed to discharge the employee does not establish that it ratified
the conduct. See Joyner, 477 So. 2d at 365.

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threatened Clisby.

See docs. 19 at 8; 26-1 at 9.

See also supra § III.B.2.

Accordingly, the negligence claim is due to be dismissed because either it is
subsumed within the negligent/wanton hiring, training, and supervision/retention
claim or it fails to state a claim for which HP can plausibly be liable.
4.
Clisby next alleges that HP negligently and/or wantonly hired, trained,
supervised, and/or retained the associate. Doc. 19 at 9–10. “[T]o prove a claim
under Alabama law for negligent/wanton entrustment, negligent hiring, negligent
supervision or negligent retention, a plaintiff must demonstrate that the employer
knew, or in the exercise of ordinary care should have known, that its employee was
incompetent.” Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273, 1288
(N.D. Ala. 2013). “Wanton,” as opposed to negligent, supervision requires “reckless
indifference” to the employee’s incompetence. See Armstrong Bus. Servs., Inc. v.
AmSouth Bank, 817 So. 2d 665, 679–80, 682 (Ala. 2001).

To establish

“incompetency,” the plaintiff must prove that the employee committed a tort that
caused the plaintiff’s injury. See Jones Express, Inc. v. Jackson, 86 So. 3d 298, 304–
05 (Ala. 2010).
Clisby plausibly alleges that the associate committed at least one underlying
tort. See supra §§ III.B.2, III.B.4. However, he does not plead facts reasonably
suggesting that HP knew or should have known that the associate was incompetent
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upon hiring him or that it knew or should have known of the associate’s
incompetence as it trained, supervised, or retained him—much less that HP was
recklessly indifferent. Rather, Clisby pleads that after he reported the incident to
HP, an HP manager told him the company would investigate, and the company
nevertheless continued to employ the associate. Doc. 19 at 4–5. These allegations
do not suggest that HP negligently or recklessly disregarded the issue once the
associate’s behavior came to its attention. 12 Therefore, Clisby does not plausibly
allege a negligent or wanton hiring, training, or supervision/retention claim.
C.
Last, HP briefly argues that Clisby’s claims for punitive damages and
attorney’s fees “cannot be sustained” because “there are no claims pled that state a
claim upon which relief can be granted.” Doc. 23 at 13. Because Clisby plausibly
pleads a § 1981 claim, and considering HP’s sparse arguments on this point, the
court declines to dismiss his requests for fees and punitive damages at this juncture.
See 42 U.S.C. § 1988(b) (permitting the recovery of attorney’s fees under § 1981);
Ferrill v. Parker Grp., Inc., 168 F.3d 468, 476 (11th Cir. 1999).

12

See Armstrong Bus. Servs., Inc., 817 So. 2d at 683 (“The arguments offered by [the plaintiff]
amount to no more than accusations that [an employee] did not handle the loan request properly.
[The plaintiff] argues that because [the employee] may have made mistakes, [the defendant
corporation] must have negligently or wantonly supervised him. However, these accusations do
not amount to proof that [the defendant corporation] was aware of and, negligently or wantonly,
disregarded acts of incompetence by [the employee] that damaged [the plaintiff].”).

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IV.
In sum, HP’s motion to dismiss, doc. 23, is due to be denied as to Clisby’s
§ 1981 claim and his requests for attorney’s fees and punitive damages. In all other
respects, the motion is due to be granted. The court will enter a separate order.
DONE the 8th day of April, 2022.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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