Blow v. Virginia College

Filing 10

MEMORANDUM OPINION AND ORDER that the defendant's 6 MOTION to Dismiss Count IV of plaintiff's complaint is GRANTED and any claim for outrage or intentional infliction of emotional distress is DISMISSED with prejudice, plaintiff has leave to file an amended comlaint, said amended complaint must be filed by 1/4/2013; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2012. (AHI )

FILED
2012 Dec-21 AM 09:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DONNETTA BLOW,

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Plaintiff,
vs.
VIRGINIA COLLEGE,
Defendant.

Civil Action No. CV-12-S-3657-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Donnetta Blow, filed a complaint on October 19, 2012, asserting
claims against her former employer, Virginia College, for: (1) “Race Discrimination
in Violation of Title VII” (Count I); (2) “Race Discrimination in Violation of 42
U.S.C. § 1981” (Count II); (3) “Retaliation” (Count III); and (4) “Mental and
Emotional Distress” (Count IV).1

The case currently is before the court on

defendant’s motion to dismiss Count IV for failure to state a claim upon which relief
can be granted.2 Upon consideration of the motion, pleadings, and briefs, the court
concludes that defendant’s motion should be granted in part.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a

1

See doc. no. 1 (Complaint).

2

Doc. no. 6.

complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted). As the Supreme Court stated in Iqbal:
A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” [Twombly,
550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.”
Id., at 570. A claim has facial plausibility 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., at 556. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. 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., at
557 (brackets omitted).
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations contained
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in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id., at 555 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)).
Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed,
be a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. 490 F.3d, at 157-158. But
where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but it
has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-79 (emphasis added).
II. RELEVANT ALLEGATIONS OF PLAINTIFF’S COMPLAINT
In her complaint, plaintiff generally describes being given unfavorable job
assignments, receiving unwarranted reprimands and low performance evaluations,
being subjected to hostile treatment by a supervisor, not being permitted to work

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overtime, and ultimately, being terminated from her job, all as a result of race
discrimination and/or retaliation.3 Count IV of the complaint bears the heading
“Mental and Emotional Distress,” and it contains the following legal allegations:
80. The allegations contained in paragraphs 1 through 79 are
inclusive and are hereby incorporated by reference.
81. Defendant’s actions described herein were intentional and
inflicted upon Plaintiff severe mental and emotional distress.
82. As a result of Defendant’s actions, Plaintiff has suffered irreparable
injuries, including but not limited to loss of pay, benefits and other economic losses,
emotional pain and suffering, mental anguish, humiliation, embarrassment, personal
indignity and other intangible injuries for all of which she should be compensated.4
Plaintiff’s Prayer for Relief includes a request for “an order requiring the Defendant
to make the Plaintiff whole by awarding her back pay (plus interest), compensatory
and punitive damages, declaratory and injunctive relief, lost seniority, lost benefits and
lost pension profits.”5
III. DISCUSSION
Defendant characterizes Count IV of plaintiff’s complaint as a claim for
“outrage/intentional infliction of emotional distress,”6 and asserts that the claim should
be dismissed because she has not alleged sufficient facts to support the claim under
3

See Complaint ¶¶ 12-37.

4

Complaint ¶¶ 80-82.

5

Id. ¶ 85.

6

See, e.g., doc. no. 6, at 1.
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Alabama law. To the extent Count IV is properly characterized as a claim for outrage
or intentional infliction of emotional distress, the court agrees that it is due to be
dismissed.
Under Alabama law, the so-called “tort of outrage” and an action for the
intentional infliction of emotional distress are conceptually deemed to be synonymous.
See, e.g., Ex Parte Lumbermen’s Underwriting Alliance, 662 So. 2d 1133, 1134 (Ala.
1995) (recognizing that intentional infliction of emotional distress is “otherwise
known as the tort of outrage”); Sanders v. Shoe Show, Inc., 778 So. 2d 820, 823 (Ala.
Civ. App. 2000) (same); see also Sphere Drake Ins., P.L.C. v. Shoney’s, Inc., 923 F.
Supp. 1481, 1491 (M.D. Ala. 1996) (stating that, under Alabama law, the tort of
outrage and the intentional infliction of emotional distress are “the same cause of
action”).7 To establish a claim, regardless of whether it is characterized by a plaintiff
as “outrage” or intentional infliction of emotional distress, the plaintiff must
demonstrate: “(1) that the defendants either intended to inflict emotional distress, or
knew or should have known that emotional distress was likely to result from their
conduct; (2) that the defendants’ conduct was extreme and outrageous; and (3) that the
defendants’ conduct caused emotional distress so severe that no reasonable person
7

This court believes that, as a matter of policy, the torts of outrage and intentional infliction
of emotional distress should be viewed as conceptually distinct. However, since the Alabama courts
have failed to recognize this distinction, this court will analyze the two counts as if they were a single
cause of action.
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could be expected to endure it.” Callens v. Jefferson County Nursing Home, 769 So.
2d 273, 281 (Ala. 2000) (citing Jackson v. Alabama Power Co., 630 So. 2d 439 (Ala.
1993), and Inmon, supra).
The Alabama Supreme Court recognizes the tort only in “egregious
circumstances” and, thus, has limited its application to the following areas: (1)
wrongful conduct within the context of family burials; (2) an insurance agent’s
coercing an insured into settling an insurance claim; and (3) egregious sexual
harassment. Callens, 769 So. 2d at 281 (citing Thomas v. BSE Indus. Contractors,
Inc., 624 So. 2d 1041 (Ala. 1993)). None of those limited factual situations have been
described in plaintiff’s complaint.8 Plaintiff even acknowledges as much, stating that
she “did not claim outrage in Count Four of her complaint.”9 Instead, plaintiff asserts
that she intended to assert only a claim for “Mental and Emotional Distress” in Count

8

Defendant makes the additional assertion that “the Alabama Supreme Court has specifically
rejected claims of outrage/intentional infliction of emotional distress based on the discharge of an
at-will employee, Plaintiff’s claim in this matter.” Doc. no. 7 (defendant’s brief), at 5. The case
defendant cites — Wal-Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003) — indeed
supports the first clause of that assertion. The key language of that decision is: “‘[I]t would be
intolerable in a civilized society to hold that an employer is guilty of outrageous conduct for merely
discharging an employee at will.’” Id. at 840 (quoting Harrell v. Reynolds Metals Co., 495 So.2d
1381, 1387 (Ala.1986)). Even so, the court cannot agree with the second clause of defendant’s
assertion, i.e., that plaintiff’s claim in this case is merely a claim for discharge of an at-will
employee. Instead, plaintiff asserts claims of race discrimination and retaliation, additional factors
that distinguish her claims from those asserted in Smitherman. Those distinctions, however, have
no bearing on the ultimate decision in this case. Even without considering the Smitherman decision,
plaintiff still has not stated a viable claim for outrage under Alabama law.
9

Doc. no. 8 (plaintiff’s response brief) ¶ 3.
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IV.10 She requests leave of court to amend her complaint in order to resolve any
pleading deficiencies.
IV. CONCLUSION AND ORDERS
For the reasons stated above, the court agrees that plaintiff cannot assert a claim
for outrage/intentional infliction of emotional distress under Alabama law based on
the facts alleged in her complaint. Accordingly, defendant’s motion to dismiss Count
IV of plaintiff’s complaint is GRANTED in part. Any claim for outrage or intentional
infliction of emotional distress is DISMISSED with prejudice.
To the extent plaintiff intended only to seek emotional distress damages as an
item of recovery on her other claims, she has leave to amend her complaint for the sole
purpose of making that clarification. Plaintiff’s amended complaint must be filed on
or before January 4, 2013.
DONE this 21st day of December, 2012.

______________________________
United States District Judge

10

Id. ¶ 4.
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