Burnett v. The Harvard Drug Group, L.L.C. et al
MEMORANDUM OPINION AND ORDER that the motion for partial dismissal is GRANTED in part and DENIED in part; Count Five of plaintiff's complaint is DISMISSED with prejudice, for failure to state a claim upon which relief can be granted; Counts One, Two, Three, and Four remain pending, and defendants are ordered to file an answer to those claims by 2/4/2014 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/21/2014. (AHI )
2014 Jan-21 PM 12:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
THE HARVARD DRUG GROUP, )
LLC, and AEROTEK, INC.,
Civil Action No. CV-13-S-1620-NE
MEMORANDUM OPINION AND ORDER
Plaintiff, Michael Burnett, filed a complaint on August 29, 2013, asserting
claims against The Harvard Drug Group, LLC (“Harvard”), and Aerotek, Inc.
(“Aerotek”), two entities that he claims were formerly his joint employers.1 His
complaint asserted three claims against both defendants: (1) “Race Discrimination
Disparate Treatment” pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and 42 U.S.C. § 1981 (Count One);
(2) “Race Discrimination Hostile Work Environment” pursuant to Title VII and 42
U.S.C. § 1981 (Count Two); and (3) “Race Discrimination Wrongful Termination”
pursuant to Title VII and 42 U.S.C. § 1981 (Count Three).2 He also asserts one claim
solely against defendant Aerotek: i.e., “Aerotek, Inc. Retaliation in Violation of Title
Doc. no. 1 (Complaint).
VII” (Count Four), and one claim solely against Harvard: i.e., “The Harvard Drug
Group, L.L.C. Negligent Hiring, Training, Supervision and Retention” (Count Five).3
The case currently is before the court on “The Harvard Drug Group L.L.C.’s Partial
Motion to Dismiss” Counts One and Five for failure to state a claim upon which relief
can be granted.4 Upon consideration of the motion, pleadings, and briefs, the court
concludes that Harvard’s motion should be granted in part, but also denied in part.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
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,
Doc. no. 11 (Motion to Dismiss).
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
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 COMPLAINT5
Plaintiff is a bi-racial male, being half Caucasian and half African American.6
He was placed by Aerotek to work at Harvard’s Decatur, Alabama facility on April 10,
2012.7 Plaintiff alleges that Harvard and Aerotek were his “joint employers.”8 When
plaintiff first began working at Harvard, he claims that there were no problems
because his co-workers perceived him as white due to the color of his skin.9 By the
end of April of 2012, however, plaintiff’s white co-workers discovered that he was biracial.10 Plaintiff alleges that, upon that discovery, the way in which he was treated
All allegations of plaintiff’s complaint have been taken as true for purposes of ruling on
Harvard’s motion to dismiss.
Doc. no. 1 (Complaint) ¶ 6.
Id. ¶ 7. The complaint does not clearly explain this, but Aerotek apparently is either a
temporary employment agency or a placement firm. In any event, knowing Aerotek’s exact role is
not necessary to resolve the instant motion.
Id. ¶ 9.
Id. ¶ 11.
immediately changed.11 Specifically, the majority of his white co-workers refused to
talk to him and excluded him from conversations.12
Plaintiff’s white co-workers showed him a list of about 29 people whose
employment had been terminated, and all, or almost all, of those individuals were
black.13 White co-workers joked and made racially derogatory comments on a daily
basis, and parodied African Americans by talking in exaggerated accents which they
called “ebonics.”14 A white, male co-worker pretended to be a black woman, and the
other workers laughed at that man’s portrayal.15 A white co-worker remarked that
other employees shouldn’t ask anything of a black former co-worker named Shanna,
because Shanna would slash their tires, and another white co-worker called a different
black former co-worker by the nickname “She-na-na.”16
When a new black employee began working at Harvard, the white employees
joked about who would train her, and eventually asked plaintiff and the only other
black employee to do that job because no one else wanted to.17
The white employees allegedly made derogatory and threatening comments
Id. ¶¶ 12-13.
Id. ¶ 13.
Doc. no. 1 (Complaint) ¶ 10.
Id. ¶ 14.
Id. ¶ 34.
Id. ¶ 15.
Id. ¶ 17.
within plaintiff’s hearing; however, they would not speak directly to him.18 For
example, a white, male co-worker made the comment that, “it’ll eat the ink off your
arms,” when plaintiff was the only individual in the room with visible tattoos on his
Additionally, once it became common knowledge that plaintiff was bi-racial,
they ignored him or waited several minutes before responding whenever he asked his
white co-workers for assistance.20 White co-workers would sometimes pretend to be
members of the Ku Klux Klan, and state that they had a “meeting” that night.21
Upon arriving to work on May 7, 2012,22 plaintiff allegedly witnessed a white,
female co-worker run down the hallway and erase a picture on the white board that
depicted plaintiff behind bars.23 Plaintiff understood this conduct to mean that his coworkers did not expect him at work that day.24 In fact, after plaintiff left Harvard’s
premises that day, Scott Urquhart from Aerotek called and informed plaintiff that his
Id. ¶ 20.
Doc. no. 1 (Complaint) ¶ 20.
Id. ¶¶ 21-23.
Id. ¶ 32.
The complaint contains inconsistencies as to the date plaintiff’s employment was
terminated. For the purposes of this motion to dismiss, the court will assume, however, that plaintiff
was discharged on May 7, 2012, as this was the date provided in his EEOC charge and was also
mentioned in the complaint. Compare doc. no. 1 (Complaint) ¶ 24 with Complaint ¶ 30; see also
doc. no. 1-1 (Charge of Discrimination).
Doc. no. 1 (Complaint) ¶ 24.
assignment was ending because he “didn’t fit in.”25
Disparate Treatment Claim
Defendant asserts that plaintiff has failed to state sufficient facts to support his
claim for disparate treatment discrimination (Count One). To establish a prima facie
case of race-based disparate treatment, a plaintiff generally must show that: (1) he is
a member of a protected class, (2) he suffered an adverse employment action, (3) the
employer replaced him with someone outside his protected class or otherwise treated
similarly situated employees outside his protected class more favorably, and (4) he
was qualified to perform the duties of his job. See, e.g., Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); Crapp v. City of Miami Beach, 242
F.3d 1017, 1020 (11th Cir. 2001); Nix v. WLCY Radio/Rahall Communications, 738
F.2d 1181, 1185 (11th Cir. 1984).26
“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,
Id. ¶ 25.
The elements for a claim of discrimination are the same under both Title VII and § 1981.
See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
complaints must also meet the “plausibility standard” set forth in
Twombly and Iqbal. See Iqbal, 129 S. Ct. at 1949–50.
Bowers v. Board of Regents of University System of Georgia, 509 F. App’x 906, 910
(11th Cir. 2013).
In addition to the factual allegations set forth above, plaintiff states the
following to support his disparate treatment claim:
46. Plaintiff has been discriminated against on the basis of race in
regard to disparate treatment and other adverse terms and conditions of
employment, in violation of Title VII of the Civil Rights Act, as
amended, and 42 U.S.C. § 1981. The plaintiff has been discriminated
against because of his race and has been subjected to unequal treatment
because of his race.
47. Plaintiff seeks to redress the wrongs alleged herein and this
suit for back pay plus damages, interest, an[d] injunctive and declaratory
judgment are his only means of securing adequate relief. Plaintiff is now
suffering and will continue to suffer irreparable injury from the
defendant’s unlawful policies and practices as set forth herein unless
enjoined by this Court.27
The court concludes these allegations are sufficient to suggest intentional
discrimination. Accordingly, plaintiff’s Count One will not be dismissed for failure
to state a claim upon which relief can be granted.
Negligent Hiring, Training, Supervision, and Retention Claim
In addition to the factual allegations set forth above, plaintiff stated the
Doc. no. 1 (Complaint) ¶¶ 46-47 (alteration supplied).
following to support his claim for negligent hiring, training, supervision, and
57. This is a claim arising under the law of the State of Alabama
to redress the Defendant’s negligent hiring, retention, training and
supervision of Chasity Davis, John Evans, and other employees.
58. Defendant inadequately or completely failed to conduct
background checks and/or references prior to hiring Chasity Davis, John
Evans, and other employees, which proximately caused the
discrimination, harassment and pretextual termination of the Plaintiff.
59. Defendant inadequately or completely failed to provide race
discrimination training. The Defendant negligently failed to train
Chasity Davis, John Evans, and other employees adequately on the
subject of race discrimination, which proximately caused the
discrimination, harassment and pretextual termination of the Plaintiff.
60. The Defendant negligently failed to supervise Chasity Davis,
John Evans, and other employees adequately, which proximately caused
the discrimination, harassment and pretextual termination of the Plaintiff.
61. The Defendant negligently failed to terminate Chasity Davis,
John Evans, and others after receiving actual or constructive notice of
their proclivity for discriminating against bi-racial and African American
employees, which proximately caused their continued discrimination
against the Plaintiff.
62. Defendant failed to properly hire, train, supervise, and failed
to terminate the employment of Chasity Davis, John Evans, and other
supervisors and/or co-workers of Plaintiff who engaged in race
63. The disparate treatment, harassment and pretextual termination
of the Plaintiff caused him great emotional distress and trauma, for which
he seeks compensatory and punitive damages against the Defendant.28
Harvard argues that the claim must be dismissed because it is not based upon
an independently actionable Alabama tort. Persuasive authority from every federal
district court in Alabama supports Harvard’s argument.
First, in Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314 (N.D.
Ala. 2002), this court granted summary judgment on a claim for negligent hiring,
training, supervision, and retention based on similar allegations in the context of a
pregnancy discrimination claim. The court stated:
In order to establish a claim against an employer for negligent
supervision, training, and/or retention, the plaintiff must establish that the
allegedly incompetent employee committed a common-law, Alabama
tort. Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala.
1999) (citing Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala. 1993)). As
Alabama does not recognize a common-law tort for sex discrimination
in employment, the Court finds that Plaintiff cannot maintain an action
for negligent supervision, training, and/or retention based upon conduct
that is employment discrimination, but does not support a common-law
Thrasher, 195 F. Supp. 2d at 1320 (footnote omitted).29
Complaint ¶¶ 57-63.
The omitted footnoted contained the following citations:
See Machen v. Childersburg Bancorporation, Inc., 761 So. 2d 981, 983 n. 1
([Ala. ]2000)(“It is well settled that Alabama does not recognize an independent
cause of action for sexual harassment. Instead, claims of sexual harassment are
maintained under common-law tort theories such as assault and battery, invasion of
privacy, negligent training and supervision, and outrage. See, e.g., Ex parte Atmore
Community Hosp., 719 So. 2d 1190 (Ala. 1998); Mardis v. Robbins Tire & Rubber
More recently, in Rhodes v. Arc of Madison County, Inc., 920 F. Supp. 2d 1202
(N.D. Ala. 2013), this court made clear that the same principles apply to claims of
sexual harassment, stating:
“Alabama does not recognize an independent cause of action for
sexual harassment.” Ex parte Carlisle, 26 So. 3d 1202, 1204 n. 1 (Ala.
2009). This state also does not recognize a claim for the tort of outrage
by an employee who allegedly was “harassed, investigated without cause,
humiliated, accused of improper dealings, treated uncustomarily, and
terminated without justification.” American Road Service Co. v. Inmon,
394 So. 2d 361, 367 (Ala. 1980). Accordingly, defendant is likewise
entitled to summary judgment on plaintiff”s negligence claims because
[the offending supervisor] is not accused of a tort.
Rhodes, 920 F. Supp. 2d at 1244 (alteration supplied). Decisions from the Middle and
Southern districts of Alabama are in agreement. See, e.g., Guy v. Alabama Power Co.,
No. 2:13cv8–MHT, 2013 WL 3929858, *2 (M.D. Ala. July 29, 2013) (“[I]t is clear
that the employee’s wrongdoing must be based on state, and not federal, law.
Otherwise, the tort of negligent or wanton hiring, training, and supervision could be
a corridor through which federal laws prohibiting various types of conduct by
employees could be incorporated into state law as a privately redressable requirement
Co., 669 So. 2d 885 (Ala. 1995); Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala.
1993); Potts v. BE & K Constr. Co., 604 So. 2d 398 (Ala. 1992).”); see also Howard
v. Wolff Broadcasting Corp., 611 So. 2d 307, 313 (Ala.1992) (refusing to “judicially
create a wrongful discharge action” based on sex discrimination), cert. denied, 507
U.S. 1031, 113 S. Ct. 1849, 123 L. Ed.2d 473 (1993).
Thrasher, 195 F. Supp. 2d at 1320 n.3 (alteration supplied).
on employers to stop their employees from engaging in such conduct.”) (alteration
supplied); Rabb v. Georgia Pacific, LLC, No. CA 09–0420–C, 2010 WL 2985575, *16
(S.D. Ala. July 26, 2010) (“Because Alabama does not recognize a common-law tort
for race discrimination in employment, this Court finds that Rabb cannot maintain an
action for negligent supervision ‘based upon conduct that is employment
discrimination, but does not support a common-law tort.’”) (quoting Thrasher, 195 F.
Supp. 2d at 1320).
Here, plaintiff’s claim for negligent hiring, training, supervision, and retention
is based entirely on the same alleged conduct that supports his claims for race
discrimination, hostile work environment, and retaliation under Title VII and 42
U.S.C. § 1981. Plaintiff does not allege any independent conduct that would support
an Alabama tort law claim.30 Accordingly, his negligent hiring, training, supervision,
In his response brief, plaintiff appears to misunderstand the requirement that there be
alleged conduct to support an independently actionable Alabama tort law claim. Plaintiff states:
[Harvard] also claims Plaintiff’s negligence claim may not rest upon a race
discrimination claim. However, Plaintiff’s negligent hiring, training, supervision and
retention claim has factual allegations in support of the claim that meet the commonlaw Alabama tort, including that [Harvard] knew or should have known of the
employee’s incompetence, [Harvard] failed to prevent the incompetency through
supervision which caused Plaintiff’s injury, and the tort was committed by [Harvard]
Doc. no. 15 (Response in Opposition), at 3 (alterations supplied). But the requirement is not simply
that plaintiff plead sufficient facts to support the negligent hiring, training, supervision, and retention
claim itself. Instead, plaintiff must plead sufficient facts to support an underlying tort claim upon
which the negligent hiring, training, supervision, and retention claim is based. That is what he has
failed to do.
and retention claim must be dismissed.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, Harvard’s motion for partial dismissal is
GRANTED in part and DENIED in part. Count Five of plaintiff’s complaint is
DISMISSED with prejudice, for failure to state a claim upon which relief can be
granted. Counts One, Two, Three, and Four remain pending, and defendants are
ordered to file an answer to those claims on or before February 4, 2014.
DONE this 21st day of January, 2014.
United States District Judge
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