Abengowe v. MCM Services Inc et al
MEMORANDUM ON PARTIAL MOTION TO DISMISS. Signed by Judge Madeline Hughes Haikala on 4/22/2016. (AVC)
2016 Apr-22 AM 10:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MCM SERVICES, INC., and MARK }
Case No.: 5:16-cv-00137-MHH
MEMORANDUM ON PARTIAL MOTION TO DISMISS
Plaintiff James Abengowe filed a lawsuit against defendants MCM Services,
Inc. and Mark McIntosh for racial harassment under section 1981 and for
intentional infliction of emotional distress (outrage) under Alabama law.1 The
defendants in this case have filed a partial motion to dismiss Mr. Abengowe’s
outrage claim, arguing that Mr. Abengowe’s complaint is insufficient as a matter
of Alabama law to support a claim for outrage. (Doc. 3).
STANDARD OF REVIEW
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). Pursuant to Rule 8(a)(2), a complaint must contain, “a short and plain
In Alabama, intentional infliction of emotional distress is generally referred to as the tort of
outrage. See Ex Parte Crawford & Co., 693 So. 2d 458, 460 (Ala. 1997).
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain ‘detailed
factual allegations,’ but rather ‘only enough facts to state a claim to relief that is
plausible on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, at *1
(M.D. Ala. Mar. 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
570 (2007)). “Specific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the allegations in
a complaint in the light most favorable to the non-moving party. Watts v. Fla. Int’l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must accept well-pled facts
as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff James Abengowe has been an employee at defendant MCM
Services, Inc. since July 2015. (Doc. 1, ¶ 9). MCM is a mechanical contractor that
engages in HVAC services. (Doc. 1, ¶ 10). Defendant Mark McIntosh owns
MCM and is Mr. Abengowe’s direct supervisor. (Doc. 1, ¶ 11).
Mr. Abengowe alleges that Mr. McIntosh has subjected Mr. Abengowe to
racial harassment and a racially hostile work environment throughout Mr.
Abengowe’s employment with MCM. (Doc. 1, ¶ 12). The racial harassment and
discrimination includes racial slurs, racially derogatory comments, and disparate
treatment on the basis of race. (Doc. 1, ¶ 13). The racially harassing slurs and
“conduct by the owner and supervisors,” includes the repeated and routine use of
the words “nigger” and “coon.” (Doc. 1, ¶ 14). Mr. McIntosh allegedly made the
following remarks and comments:
“[T]he best place for niggers is in the bottom of a hole.”
“Fuck that stupid nigger. Let him fry. We will get us another coon
“[T]hat stupid nigger not worth nothing anyway. Nobody will miss
Mr. McIntosh told Mr. Abengowe that he was “just a nigger with a
Mr. McIntosh repeatedly used the phrase “nigger please.”
Mr. McIntosh repeatedly told Mr. Abengowe that he was “going to
fire your nigger ass.”
Mr. McIntosh has asked, “[D]o you need more niggers or wetbacks to
finish the job?”
Mr. McIntosh has told Mr. Abengowe, “I knew you were a stupid ass
Mr. McIntosh repeatedly refers to Mr. Abengowe as “nigger James.”
Mr. McIntosh has stated, “[N]igger James’ [sic] stupid ass can’t go.
Send nigger James back. A nigger sitting around looking stupid will
fuck the money up. You don’t need him. Send nigger James back
(Doc. 1, ¶¶ 17-20, 24, 29, 34, 36, 37).
Mr. Abengowe also alleges that Mr. McIntosh made numerous other racially
derogatory comments around and towards Mr. Abengowe.
This conduct has
occurred throughout Mr. Abengowe’s employment and continues to occur. (Doc.
1, ¶ 39). MCM has had actual and constructive knowledge of the harassment and
has failed to take prompt and effective remedial action to cure the harassment.
(Doc. 1, ¶ 42). MCM did not provide Mr. Abengowe with any policy prohibiting
discrimination or establishing a complaint procedure for harassment. (Doc. 1, ¶
Based on the above conduct, Mr. Abengowe filed this federal lawsuit against
MCM and Mr. McIntosh, asserting claims for racial harassment under 42 U.S.C. §
1981 and for outrage under Alabama law.
The defendants have filed a partial motion to dismiss Mr. Abengowe’s
outrage claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 3). The
defendants concede that Mr. Abengowe states a claim for racial harassment under
section 1981; however, the defendants argue that because mere words do not give
rise to a claim of outrage under Alabama law, the Court should dismiss Mr.
Abengowe’s outrage claim. Mr. Abengowe argues that Alabama law does not
preclude an outrage claim under the facts in this case and that the Court should
deny the defendants’ motion to dismiss because the defendants’ conduct was 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. (Doc. 5). The motion has been fully briefed and is ripe for the
The tort of outrage requires a plaintiff to 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.’” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (citing Am. Rd.
Svc. Co. v. Inmon, 394 So. 2d 361 (Ala. 1980)). “[O]utrage is a very limited cause
of action that is available only in the most egregious circumstances.” Thomas v.
BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993). As to the second
element of outrage—which is the only element that the defendants contest—an
outrage claim is appropriate only when the conduct alleged 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.”
Tinker v. Beasley, 429 F.3d 1324, 1329-30 (11th Cir. 2005) (citing Inmon, 394 at
The defendants cite to Potts v. Hayes, 771 So. 2d 462 (Ala. 2000), in which
the Alabama Supreme Court stated that it has recognized the tort of outrage “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).”2 Potts, 771 So. 2d at 465. The
defendants argue that because racial harassment is not among the categories that
the Alabama Supreme Court has recognized in the outrage context, Mr.
The Busby court held that the following conduct—which relates to the defendant’s behavior
toward four different female employees—was sufficiently extreme and outrageous to support an
[The defendant]: (1) invited Busby and Money to swim in his pool in the nude
with him; (2) told Busby that his hands were cold and asked if he could put them
in her pockets to keep them warm; (3) told the plaintiffs that he would “put a stick
on their machines” so they could masturbate while working; (4) said that he could
perform intercourse as fast as one of the machines at the plant could operate; (5)
said that he wished that the plaintiffs would come to work braless and wear less
clothing; (6) told one of the plaintiffs that if she had not stayed up all night having
sex she could do her work properly; (7) told one employee that if she would give
him 30 minutes with her that he would fill her pants in nine months for her; (8)
acted as if he was going to pinch one plaintiff’s breasts with a pair of pliers and
with his hands; (9) said that he should send one of the plaintiffs across the street
to where a group of men were standing because she stayed sexually aroused all of
the time; (10) told one of the plaintiffs that he was very tired and asked her if she
would accompany him to the restroom and hold his penis while he urinated; (11)
told one of the plaintiffs that her nipples were as large as another employee’s
entire breasts; (12) attempted to follow one of the plaintiffs into the restroom and
when she asked him where he was going, said that he was going to help her; (13)
followed one of the plaintiffs one night; (14) said that a table in his office had
been damaged when one of the plaintiffs and a male co-employee had sex on top
of it; (15) openly stared at the plaintiffs’ sexual anatomy; (16) put his arm around
the plaintiffs, grabbed their arms, and stroked their necks; and (17) made other
lewd remarks and gestures to the plaintiffs.
Busby, 551 So. 2d at 324. The Alabama Supreme Court made its finding in Busby on a review of
the trial court’s grant of summary judgment for the defendant. Id.
Abengowe’s outrage claim fails as a matter of law. Mr. Abengowe correctly points
out, however, that the Potts categories of outrage are not exhaustive and that “the
success of each case will depend on the extreme and severe nature of the conduct
found in each case.” (Doc. 5, p. 2). On this point, in Little v. Robinson, the
Alabama Supreme Court qualified Potts by stating the following:
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, 72 So. 3d at 1172-73. Thus, the relevant question is not whether the alleged
conduct falls within one of the Potts categories, but whether the alleged 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
“Whether a claim rises to the requisite level of outrageousness and
egregiousness to sustain a claim for intentional infliction of emotional distress is a
question of law.” McGinnis v. Am. Home Mortgage Servicing, Inc., No. 14-13404,
2016 WL 1105394, at *11 (11th Cir. Mar. 22, 2016). The defendants argue that
even if racial harassment were an actionable vehicle for this tort, mere words, no
matter how crude, do not give rise to a cause of action for outrage. A survey of the
relevant case law indicates that the defendants’ proposition is too broad. Namely,
the fact that alleged conduct contains only words does not necessarily preclude a
claim for outrage.
A more appropriate characterization of the defendants’
proposition is that “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities” are insufficient to create liability for outrage.
Surrency v. Harbison, 489 So. 2d 1097, 1105-06 (Ala. 1986) (citing Restatement
(Second) of Torts, § 46, Comment (d) (1965)).
The Court finds that the allegations in Mr. Abengowe’s complaint are
sufficient to state a claim for outrage under Alabama law. The language that Mr.
Abengowe describes in his complaint is deeply offensive. Mr. Abengowe alleges
that Mr. McIntosh frequently used the words “nigger” and “coon” in a vile and
disparaging manner and that Mr. McIntosh directed the words towards Mr.
Abengowe, his subordinate employee. Mr. Abengowe asserts that these verbal
assaults have occurred for at least seven months and are ongoing.
reasonably could conclude that the conduct, if proven, goes beyond all bounds of
decency and may be fairly regarded as atrocious and utterly intolerable in a
civilized society. There is no meaningful distinction between the conduct alleged
in the complaint and egregious sexual harassment, a mode of conduct that often
involves derogatory language and is designed to disparage and belittle the target of
the speaker’s remarks. See, e.g., Livingston v. Marion Bank & Trust Co., 30 F.
Supp. 3d 1285, 1324 (N.D. Ala. 2014); see also Jones v. Kent Sales & Serv. Corp.,
2012 WL 4226125 (N.D. Ala. Sept. 17, 2012); Allen v. Cypress Village, LTD, 2011
WL 2559614, at *3 (M.D. Ala. June 27, 2011).3
The defendants argue that because Mr. Abengowe’s outrage claim presents a
novel issue of state law, the Court should exercise its discretion under 28 U.S.C. §
1367(c)(1) in declining to exercise supplemental jurisdiction over Mr. Abengowe’s
outrage claim. The Court declines the invitation. As the Busby, Livingston, and
Jones decisions indicate, there is nothing particularly novel about Mr. Abengowe’s
Like the defendants in Allen, the defendants in this case rely on a case that was decided at the
summary judgment stage, Burden v. Int’l Longshoremen’s Ass’n, Local No. 1410, 510 F. Supp.
2d 618 (S.D. Ala. 2007). The defendants’ conduct in Burden is distinguishable from Mr.
McIntosh’s conduct. The evidence supporting the plaintiff’s outrage claims in Burden was as
follows. On one occasion, one defendant picked up the plaintiff, firmly pressed his body against
hers, and made a sexual statement. A different defendant twice told the plaintiff that “he heard
that she had a million dollar fuck;” “made a statement about twenty dollar women;” and “said a
man could give her twenty dollars for sexual privileges.” Id. at 626. The court in Burden
viewed each defendant’s conduct separately and determined that the defendants’ respective
conduct was insufficient to support an outrage claim against either defendant. The conduct in
Burden was limited to one incident with respect to the first defendant and four incidents with
respect to the second defendant. Mr. McIntosh, on the other hand, is alleged to have made many
more offending statements (according to Mr. Abengowe’s complaint, Mr. McIntosh has used the
word “nigger” more than 25 times and has done so frequently throughout Mr. Abengowe’s
employment at MCM).
Based on the allegations in the complaint, which the Court views in the light
most favorable to Mr. Abengowe on the defendants’ motion to dismiss, the Court
is satisfied that Mr. Abengowe has adequately alleged conduct that forms the basis
for a colorable outrage claim under Alabama law. Therefore, the Court denies the
defendants’ motion to dismiss.
DONE and ORDERED this April 22, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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