Long v. Walmart Claims Services Inc et al

Filing 44

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 09/30/2024. (AKD)

FILED
2024 Sep-30 AM 10:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VINCENT LONG,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 2:22-cv-00080-SGC

MEMORANDUM OPINION 1
Vincent Long (the “plaintiff”), brought this action against Wal-Mart Stores
East, LP (the “defendant”), asserting state law tort claims. 2 (Doc. 1-1 at 8-17). 3 The
case is before the court on the defendant’s motion for summary judgment. (Doc.
31). The parties have briefed the motion fully, and it is ripe for review. (Docs. 33,
35-1, 40, 42). For the reasons stated below, the court will grant the motion and
dismiss this action with prejudice.

1

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 10).
2
3

Jurisdiction is based on diversity of citizenship. (Doc. 1).

Citations to the record refer to the document and page numbers assigned by the court’s CM/ECF
electronic document system and appear in the following format: (Doc. __ at __).

I.

Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court

shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking
summary judgment bears the initial burden of informing the district court of the basis
for its motion and identifying those portions of the record the party believes
demonstrate the absence of a genuine dispute of material fact. Celotex Corp., 477
U.S. at 323. If the moving party carries its initial burden, the non-movant must go
beyond the pleadings and come forward with evidence showing there is a genuine
dispute of material fact for trial. Id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the
evidence is merely colorable or not significantly probative, summary judgment is
appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about
the facts should be resolved in favor of the non-movant, and all justifiable inferences
should be drawn in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
2

II.

Summary Judgment Facts 4
The plaintiff entered a Walmart Neighborhood Market in the Center Point area

of Birmingham, Alabama, on December 21, 2019, to get something to eat. (Doc.
32-1 at 24, 29). Ashley Agee was working in the store on that date as a Team
Associate. (Doc. 32-2 at 2). She was in her twenties. (Doc. 32-1 at 68; Doc. 32-3
at 18; Doc. 32-4 at 27). According to the plaintiff, then a 58-year-old youth deacon
who promoted financial literacy amongst the youth at his church, he told Agee he
could “rock [her] world” with knowledge about making money through stock market
investments. (Doc. 32-1 at 14, 34-35, 68).
Agee did not connect the comment about “rock[ing] [her] world” with an offer
to educate her about stock market opportunities. She interpreted the comment as
sexual and otherwise inappropriate.

(Doc. 32-2 at 2).

It made her feel

uncomfortable. (Doc. 32-2 at 2). She told her Team Lead, Tashaka Leeth, who told
the Store Manager, Tracy Smelcer. (Doc. 32-2 at 2; Doc. 32-3 at 13).
Smelcer asked the plaintiff to leave the store, but the plaintiff refused. (Doc.
32-4 at 19). Leeth then called the Jefferson County Sheriff’s Department and
reported that a customer was harassing employees by directing sexual comments
toward them. (Doc. 42-1 at 2). The purpose of involving law enforcement officers

4

The following facts are undisputed, unless otherwise noted. The court views the facts in the light
most favorable to the plaintiff, as the non-movant, and gives the plaintiff the benefit of all
reasonable inferences.

3

was to obtain assistance in removing the plaintiff from the store. (Doc. 32-3 at 17;
Doc. 32-4 at 20). Agee did not pursue charges against the plaintiff. (Doc. 32-2 at
3). Neither did Leeth, Smelcer, or any other employee of the defendant. (Doc. 391 at 3).
Deputies Maddox and Cleveland responded to Leeth’s call. (Doc. 32-5 at 4).5
They approached the plaintiff and told him a female employee had complained he
had directed inappropriate comments toward her. (Doc. 32-5 at 4). Smelcer
informed the plaintiff he was not allowed back in the store. (Doc. 32-4 at 21; Doc.
32-5 at 4). The plaintiff became upset and stated he wanted to “face his accuser.”
(Doc. 32-5 at 4). Deputy Maddox denied that request and asked the plaintiff to
produce identification, but the plaintiff refused. (Doc. 32-5 at 4). Deputy Maddox
then arrested the plaintiff for obstructing governmental operations by refusing to
produce identification. (Doc. 32-5 at 4). Because the plaintiff struggled when
Deputies Maddox and Cleveland were attempting to place him in handcuffs, Deputy
Maddox also charged the plaintiff with resisting arrest. (Doc. 32-5 at 4). The
criminal charges against the plaintiff ultimately were dismissed. (Doc. 32-10 at 2).
Based on the events described above, the plaintiff enumerates four claims
against the defendant in his complaint: defamation, harassment, negligence, and
false imprisonment. (Doc. 1-1 at 11-15). The negligence claim is based on

5

A third deputy – Deputy Norris – arrived on the scene at some point. (Doc. 32-5 at 4).

4

allegations the defendant “negligently or wantonly executed[] [and] managed the []
store,” “negligent or wantonly made misrepresentations regarding the nature of the
[p]laintiff’s communication with [the] [defendant’s] [] employees,” and “negligently
or wantonly made misrepresentations regarding [the] [p]laintiff’s legal ability to
enter and remain within the . . . store.” (Doc. 1-1 at 14). The court construes these
allegations as asserting one claim for negligent or wanton training and supervision
and another claim for negligent or wanton misrepresentation.
III.

Discussion
A.

Defamation

The elements of a defamation claim under Alabama law are (1) a false and
defamatory statement concerning the plaintiff, (2) an unprivileged communication
of the statement to a third party, (3) fault amounting to at least negligence on the part
of the defendant, and (4) either actionability of the statement irrespective of special
harm or special harm caused by publication of the statement. Wal-Mart Stores, Inc.
v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003). The qualified privilege codified at
§ 13A-11-161 of the Alabama Code is an affirmative defense to a defamation claim,
Luxottica of America, Inc. v. Bruce, 389 So. 3d 1127, 1133 (Ala. 2023), and one
invoked by the defendant in this case. The privilege immunizes a defendant from
liability for “[t]he publication of a fair and impartial report . . . of any charge of crime
made to any judicial officer or body.” § 13A-11-161. The Alabama Supreme Court
5

has applied the privilege to situations in which store employees have reported
suspected shoplifters to law enforcement officers. Dolgencorp, LLC v. Spence, 224
So. 3d 173, 187 (Ala. 2016) (collecting cases).
The privilege is qualified insofar as malice on the part of the defendant will
defeat its application. Bruce, 389 So. 3d at 1133. The malice required to defeat the
privilege is “common law actual malice.” Id. at 1134. Common law actual malice
“indicates a specific intent to injure” and is established by “evidence of previous ill
will, hostility, threats, [or] rivalry,” “former libels or slanders,” “[the] violence of
the defendant’s language,” “the mode and extent of publication,” or “proof of the
recklessness of the publication and prior information regarding its falsity.” Id.
(internal quotation marks omitted).
“[T]o be clear, truth is not the test to determine whether the fair-report
privilege applies.” Jones v. BuzzFeed, Inc., 591 F. Supp. 3d 1127, 1151 (N.D. Ala.
2022). The privilege protects against liability for publication of a false statement –
even a false statement that is defamatory – provided publication was not made with
malice. The plaintiff bears the burden of proving malice. Bruce, 389 So. 3d at 1134.
The court construes the plaintiff’s argument to be that the defendant defamed
him when one or more of its employees reported to law enforcement officers that the
plaintiff was making inappropriate sexual comments inside the store. Assuming for
present purposes the plaintiff has come forward with evidence to support each
6

element of a claim for defamation, § 13A-11-161 nonetheless shields the defendant
from liability unless the plaintiff also has come forward with evidence the defendant
acted with malice. He has not. The record simply lacks any evidence the defendant
had a “specific intent to injure” the plaintiff when it made the report to law
enforcement officers.
B.

Harassment

Harassment is not a tort under Alabama law. Edwards v. Prime, Inc., 2008
WL 9393800, at *11 (N.D. Ala. Dec. 11, 2008); Wade v. City of Oakman, 2010 WL
11565306, at *12 (N.D. Ala. May 10, 2010). However, it is possible harassment
might be actionable as the tort of outrage. Wade, 2010 WL 11565306, at *12. The
Alabama Supreme Court recognized the tort of outrage in American Road Serv. Co.
v. Inmon, 394 So. 2d 361 (Ala. 1980). To prevail on a claim for the tort of outrage,
a plaintiff must show 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. Harrelson v. R.J., 882 So. 3d 317,
322 (Ala. 2003). Extreme and outrageous conduct is “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.” Id.
(internal quotation marks omitted).

7

The Alabama Supreme Court has recognized the tort of outrage with regard
to only three kinds of conduct: “(1) wrongful conduct in the family-burial context;
(2) barbaric methods employed to coerce an insurance settlement; and (3) egregious
sexual harassment.” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (internal
quotation marks omitted). The tort can be viable outside the context of these
circumstances. Wilson v. Univ. of Alabama Health Servs. Foundation, P.C., 266 So.
3d 674, 677 (Ala. 2017). However, the tort is an “extremely limited cause of action,”
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000), constrained by the standard
articulated above.
The court construes the plaintiff’s argument to be that it was outrageous for
the defendant, through Agee, Leeth, and Smelcer, to accuse him of making
inappropriate sexual comments inside the store and, based on the accusation, have
him removed from the store because the comments underlying the accusation were
not sexual or otherwise inappropriate but, instead, pertained to his efforts as a youth
deacon to promote financial literacy among young people.

The alleged

outrageousness, therefore, lies in the interpretation – or misinterpretation, as the case
may be – of the plaintiff’s comments. There is no evidence the interpretation of the
comments by Agee, the employee to whom the plaintiff directed them, was other
than genuine or that Leeth or Smelcer had any reason to question Agee’s
interpretation. Therefore, at most, Agee, Leeth, and Smelcer relied in good faith on
8

an honest misinterpretation when they accused the plaintiff of impropriety and had
him removed from the store. Under these circumstances, their actions clearly did
not exceed “all possible bounds of decency.”
C.

Negligent or Wanton Training and Supervision

The torts of negligent or wanton training and supervision require a plaintiff to
show an employee knew or should have known its employee was incompetent.
Armstrong Bus. Servs. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001) (negligent
or wanton supervision); Pritchett v. ICN Med. All., Inc., 938 So. 2d 933, 940 (Ala.
2006) (negligent training and supervision). There is no evidence that would support
a finding the defendant had actual or constructive knowledge Agee, the Team Lead,
or the Store Manager was incompetent.
D.

Negligent or Wanton Misrepresentation

A misrepresentation claim requires proof of (1) a misrepresentation of
material fact, (2) “made willfully to deceive, recklessly, without knowledge, or
mistakenly,” (3) on which the plaintiff justifiability relied, and (4) which was the
proximate cause of damage to the plaintiff. Bryant Bank v. Talmage Kirkland &
Co., Inc., 155 So. 3d 231, 238 (Ala. 2014). “In Alabama it is not always necessary
to prove that a misrepresentation was made directly to the person who claims to have
been injured.” Delta Health Grp., Inc. v. Stafford, 887 So. 2d 887, 899 (Ala. 2004)
(internal quotation marks omitted). “[I]n certain limited circumstances . . . a plaintiff
9

may properly state a fraud claim even though the defendant makes a false
representation to a third party rather than to the plaintiff.” Id. Even so, a plaintiff
still must establish his reliance on the misrepresentation. Id. The plaintiff in this
case has not shown he relied to his detriment on the alleged misrepresentation made
to law enforcement officers regarding comments he made inside the store or the
alleged misrepresentation made to him regarding his ability to patronize the store.
E.

False Imprisonment

False imprisonment is “the unlawful detention of the person of another for any
length of time whereby he is deprived of his personal liberty.” Ala. Code § 6-5-170.
Someone other than the person who makes an arrest or otherwise effects a detention
may be liable for false imprisonment if he or she instigates or participates in the act.
Crown Cent. Petroleum Corp. v. Williams, 679 So. 2d 651, 654 (Ala. 1996);
Dolgencorp, Inc. v. Pounders, 912 So. 2d 523, 528 (Ala. Civ. App. 2005). Neither
the “good faith act of giving information to a police officer tending to show that a
crime has been committed” nor the “good faith act of identifying one suspected of a
crime” constitutes instigation or participation in an arrest or other detention that will
expose a person to liability for false imprisonment. Williams, 679 So. 2d at 654.
Instigation consists of words or acts which direct, request, invite or
encourage the false imprisonment itself. In the case of an arrest, it is
the equivalent, in words or conduct, of “Officer, arrest that man!” It is
not enough for instigation that the actor has given information to the
police about the commission of a crime, or has accused the other of
10

committing it, so long as he leaves to the police the decision as to what
shall be done about any arrest, without persuading or influencing them.
RESTATEMENT (SECOND) OF TORTS § 45A cmt. c. (quoted favorably in Pounders).
The defendant’s employees did not themselves detain the plaintiff. They
sought to effectuate the opposite of detention: expulsion. The only detention of the
plaintiff was effectuated by the law enforcement officers who responded to Leeth’s
call for assistance in relation to the plaintiff, who Leath reported was harassing
employees by directing sexual comments toward them.6 That report falls far short
of the conduct required to impose liability for false imprisonment on someone other
than the person who effects a detention.
F.

The Plaintiff’s Arguments

The plaintiff framed his arguments opposing summary judgment in such a
way that the court could not address them in a coherent manner within the framework
above. The court addresses them below instead.
The plaintiff first argues factual disputes regarding the meaning of his
comments to Agee and whether he tried to kiss her precludes summary judgment on
his claims. (Doc. 35-1 at 2-4). 7 This argument is without merit. The plaintiff’s

6

There is no question the plaintiff was detained at the point at which officers placed him under
arrest. The court assumes for present purposes the plaintiff also was detained when officers were
questioning him before the arrest.
7

Agee states in an affidavit submitted in support of the defendant’s summary judgment motion
that, in addition to directing inappropriate comments toward her, the plaintiff tried to kiss her on

11

claims fail for reasons independent of the meaning of the plaintiff’s comments to
Agee or whether he tried to kiss her. Those reasons are discussed above. In other
words, the plaintiff may have identified disputed facts, but those disputed facts are
not material.
The plaintiff next asserts no one told law enforcement officers he attempted
to kiss Agee and argues that absent that detail the defendant “had no good faith basis
for causing the investigation and subsequent arrest of [the plaintiff].” (Doc. 35-1 at
4). The court struggles to follow the logic of this argument. All the court can say is
that the omission of a statement the plaintiff contends is false from the report made
to law enforcement officers could not have caused any harm to the plaintiff and, as
stated, the validity of the allegations the plaintiff harassed Agee by directing sexual
comments toward her and tried to kiss her is immaterial to disposition of the
plaintiff’s claims.
Finally, the plaintiff asserts the defendant failed to prosecute the charges
against him and argues that failure shows the defendant knew his arrest was without
merit and requires survival of his malicious prosecution claim. (Doc. 35-1 at 5-6).
The plaintiff was charged with obstructing governmental operations for refusing to
produce identification and resisting arrest. The charges were pressed by Deputy

the cheek. (Doc. 32-2 at 2). Smelcer did not know that detail until after this lawsuit was filed, and
the detail does not appear in the police report of the incident. (Doc. 32-5 at 4; Doc. 39-1 at 2).

12

Maddox, not the defendant. The defendant did not press charges of any kind against
the plaintiff. Neither the defendant nor any of its employees were named as parties,
witnesses, or victims in relation to the charges, and they were not issued notices of
any kind in connection with the charges. (Doc. 39-2 at 2-3; Doc. 39-3 at 2-3). In
short, the defendant’s failure to appear or otherwise participate in the plaintiff’s
criminal prosecution had nothing to do with the ultimate dismissal of the charges.
Moreover, the plaintiff has not pleaded a malicious prosecution claim against the
defendant and has never sought to amend his complaint to add a malicious
prosecution claim.
IV.

Conclusion
For the reasons stated above, the court will GRANT the defendant’s motion

for summary judgment (Doc. 31) and DISMISS this action WITH PREJUDICE.
A separate order will be entered.
DONE this 30th day of September, 2024.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

13