Roberson v. BancorpSouth Bank, Inc.

Filing 27

Order: The defendants' Motion for Judgment on the Pleadings (doc. 26, at #6) is granted, as set out. There being no other claims or causes of action pending against Phillip Webb, the Clerk is directed to terminate that defendant. This action shall proceed with respect to Roberson's Title VII claims against Bancorp on theories of sexually hostile work environment, gender discrimination, and retaliation. Signed by Chief Judge William H. Steele on 6/19/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADRIA E. ROBERSON,
Plaintiff,
v.
BANCORPSOUTH BANK, INC., et al.,
Defendants.

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CIVIL ACTION 12-0669-WS-N

ORDER
This matter comes before the Court on defendants’ Motion for Judgment on the Pleadings
(doc. 26, at #6) with respect to all state-law claims interposed by plaintiff. The Motion has been
briefed and is now ripe for disposition.
I.

Background.
In this consolidated action, plaintiff, Adria Roberson, asserts both state-law and federal-

law claims arising from allegations of workplace sexual harassment. In addition to Title VII
claims of sexually hostile work environment, sex discrimination and retaliation leveled at
defendant BancorpSouth Bank, Inc., Roberson brings common-law claims under Alabama law.
Specifically, the Complaint purports to assert a claim of negligent/wanton hiring, training and
supervision against Bancorp, as well as a claim of outrage against Bancorp and defendant Phillip
Webb.
The outrage claim is predicated on the following well-pleaded factual allegations in the
Complaint: (i) when Roberson reported Webb’s sexually harassing conduct, Bancorp
“intentionally took no corrective action” and instead allowed or participated “in the tarnishing of
Mrs. Roberson’s reputation and/or fabrication of fraudulent basis for her termination” (doc. 26,
at #1-1, ¶ 22); (ii) in response to Roberson’s harassment complaints, Bancorp and Webb
“systematically targeted her person in the hope that she would voluntarily resign her position”
(id., ¶ 23); and (iii) the “hostile targeting” by defendants “was so extreme and outrageous so as
not to be tolerated in a civilized society” (id., ¶¶ 23-24).

With respect to the negligent/wanton hiring, training and supervision claim, the
Complaint alleges that Webb was unfit to supervise Roberson; that Bancorp knew or should have
known of Webb’s incompetence and unfitness had it performed proper screening, background
checks and investigation; that Bancorp failed to train and supervise Webb to prevent him from
engaging in harassment; and that Bancorp failed to remedy the sexually hostile work
environment to which Roberson was subjected, and allowed her to be systematically targeted and
terminated when she objected to that mistreatment. (Id., ¶¶ 14-20.)
Certain other facts pleaded in the Complaint shed light on the nature of the alleged
harassment about which Roberson is complaining. In particular, plaintiff’s pleading alleges that
Webb exposed her to “emails discussing the degree to which office … personnel were physically
attractive,” “verbal commentary regarding the use of Viagra and its effects,” “disbursement of
Viagra … while making sexually suggestive … comments,” “emailing office jokes” with coarse
punchlines, and exposure to “nude or partially nude photographs which inappropriately
highlighted human anatomy.” (Doc. 26, at #1-1, ¶ 10.)
II.

Analysis.
A.

Applicable Legal Standard.

Defendants’ Motion is styled as one for judgment on the pleadings, pursuant to Rule
12(c), Fed.R.Civ.P. “Judgment on the pleadings is proper when no issues of material fact exist,
and the moving party is entitled to judgment as a matter of law based on the substance of the
pleadings and any judicially noticed facts.” Cunningham v. District Attorney’s Office for
Escambia County, 592 F.3d 1237, 1255 (11th Cir. 2010) (citation omitted); see also Palmer &
Cay, Inc. v. Marsh & McLennan Companies, Inc., 404 F.3d 1297, 1303 (11th Cir. 2005)
(“Judgment on the pleadings is appropriate where there are no material facts in dispute and the
moving party is entitled to judgment as a matter of law.”) (citations omitted). As a general rule,
courts “will not consider matters outside the pleadings when passing on a Rule 12(c) motion.”
Horsley v. Feldt, 304 F.3d 1125, 1136 n.6 (11th Cir. 2002).1

1

The limited purposes and obvious utility of Rule 12(c) motions have been
summarized as follows: “Judgment on the pleadings is, of course, not lightly to be given. On
the other hand, litigants should not be required to go through the full and elaborate process of
trial of issues when there is a dominating legal principle governing liability which is dispositive
of the case without the necessity of trial.” M.R. v. Board of School Com’rs of Mobile County,
(Continued)
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B.

Outrage Claim.

As an initial matter, defendants contend that they are entitled to judgment on the
pleadings on Roberson’s outrage claim. To recover on a claim of outrage under Alabama law, a
plaintiff must prove 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.” S.B. v. Saint James School, 959 So.2d 72, 93 (Ala. 2006)
(citations omitted); see also Little v. Robinson, 72 So.3d 1168, 1172 (Ala. 2011) (same).
To establish the “extreme and outrageous” element for this Alabama tort, the plaintiff
must prove “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.” S.B., 959 So.2d at 93 (citations omitted). “[M]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” do not equate to a cognizable claim of
outrage. Ex parte Bole, 103 So.3d 40, 52 (Ala. 2012) (citations omitted); see also B.V. v.
Davidson, 77 So.3d 1187, 1191-92 (Ala.Civ.App. 2010) (“A plaintiff seeking to establish the tort
of outrage bears a heavy burden. The tort of outrage was not developed to provide a person with
a remedy for the trivial emotional distresses that are common to each person in his everyday
life.”) (citations and internal quotation marks omitted). Indeed, this tort is limited to “egregious
circumstances” and is “only found in rare circumstances.” Hamilton v. City of Jackson, 508 F.
Supp.2d 1045, 1060 (S.D. Ala. 2007); see also Bole, 103 So.3d at 52 (“The tort of outrage is an
extremely limited cause of action.”) (citations omitted).
As noted supra, the outrage claim presented in Roberson’s Complaint focuses solely on
defendants’ alleged tarnishing of her reputation, fabrication of a fraudulent basis for her
termination, and hostile targeting of her in unspecified ways after she complained of sexual
harassment in the workplace. In their Rule 12(c) Motion, defendants argue that such conduct
does not meet the stringent legal standard for a cognizable claim of outrage. Case law lends at
least facial support to defendants’ position, as various courts applying Alabama law have deemed

2012 WL 2931263, *1 n.4 (S.D. Ala. July 18, 2012) (citation omitted); see also Scranton Times,
L.P. v. Wilkes-Barre Pub. Co., 2009 WL 3100963, *2 (M.D. Pa. Sept. 23, 2009) (“A court
should only grant a motion for judgment on the pleadings if it is clear that the merits of the
controversy can be fully and fairly decided in this summary manner.”).

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garden-variety retaliation by an employer not to give rise to an outrage cause of action. See, e.g.,
Palmer v. Infosys Technologies Ltd. Inc., 888 F. Supp.2d 1248, 1254 (M.D. Ala. 2012) (“Palmer
asserts that the campaign of harassment and, in particular, the numerous threats he has received
are sufficient to state a claim of outrage under Alabama law. … Courts have frequently rejected
outrage claims based on similar accusations of threats and disparate treatment at work.”)
(footnote omitted); Short v. Mando American Corp., 805 F. Supp.2d 1246, 1277 (M.D. Ala.
2011) (claims of outrage predicated on employment discrimination and retaliation “do not fall
within the three limited circumstances recognized by the Alabama Supreme Court for the tort of
outrage”); Walker v. ITT Educational Services, Inc., 2013 WL 979087, *4 (N.D. Ala. Mar. 13,
2013) (“[I]f the tort of outrage were recognized under the circumstances alleged in this case, it
would mean that the tort of outrage would exist in every … case when an employer …
discriminates or retaliates against a[n] … employee – a result not consistent with the ‘extremely
limited’ nature of the tort of outrage in Alabama.”) (citation omitted).
Confronted with this line of argument, plaintiff neither identifies authorities nor presents
legal argument to show that allegations of systematic targeting and retaliation for reporting
sexual harassment can support a viable claim of outrage under Alabama law. She thus provides
this Court with no principles, theories or cases that might allow this outrage claim to survive
Rule 12(c) scrutiny.2 Instead, Roberson shifts gears in her response brief, where she recasts her
outrage claim as arising from Webb’s alleged sexually harassing conduct itself. (Doc. 26, at #9,
at 2-3.)3 Assuming that the Complaint can reasonably be read as framing Roberson’s outrage
2

The undersigned cannot and will not endeavor to articulate and develop such
arguments for her. See, e.g., Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011)
(“district courts cannot concoct or resurrect arguments neither made nor advanced by the
parties”); Branch Banking and Trust Co. v. Howard, 2013 WL 951652, *4 (S.D. Ala. Mar. 8,
2013) (“a court is not obligated to read minds and ordinarily will not construct arguments or
theories that a party has failed to raise”); Selman v. CitiMortgage, Inc., 2013 WL 838193, *15
n.24 (S.D. Ala. Mar. 5, 2013) (“This Court cannot and will not fill in the blanks for an argument
that plaintiffs have not developed.”).
3

In that regard, she characterizes the Rule 12(c) Motion as arguing that her
pleadings “did not allege in graphic enough detail the instances of sexual harassment,” cites
authority for the proposition that the tort of outrage “is recognized under Alabama law in cases
of sexual harassment,” states that she “has listed various instances of sexual harassment,” argues
that “the nature of the sexual harassment is not before this Court, so it cannot be weighed as
either trivial or egregious,” and insists that “she is asserting that the sexual harassment itself was
(Continued)
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claim in terms of Webb’s alleged sexually harassing conduct, this theory would not save the
claim from Rule 12(c) dismissal. The insuperable obstacle facing plaintiff is Judge Granade’s
Order (doc. 26, at #28) entered on June 13, 2013. The June 13 Order addressed the jurisdictional
issue of whether removal of the state-law claims to federal court on diversity of citizenship
grounds (prior to consolidation of the Alabama claims with Roberson’s separately filed Title VII
claims) was jurisdictionally permissible. In so doing, Judge Granade examined whether Webb (a
non-diverse defendant) was fraudulently joined, rendering his citizenship immaterial under 28
U.S.C. § 1332. The June 13 Order unambiguously answered this question in the affirmative. On
that score, Judge Granade opined that “the facts … do not constitute the type of egregious sexual
harassment that courts in Alabama have found to satisfy a claim for outrage.” (Doc. 26, at #28,
at 11 (footnote omitted).) Her conclusion was as follows: “On the uncontested facts before the
court here, there simply is no possibility that plaintiff can state a viable cause of action against
Webb for outrage.” (Id. at 12.)
Judge Granade’s determination in the June 13 Order that defendant Webb was
fraudulently joined because there was no possibility that plaintiff’s allegations of sexual
harassment could state a viable cause of action for outrage is dispositive in the Rule 12(c)
analysis. Where fraudulent joinder exists, the appropriate course of action is to dismiss the
fraudulently joined defendant, especially where the defendant submits a proper motion for such
relief (as Webb has done). See, e.g., Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1297
(11th Cir. 2007) (in fraudulent joinder situation, “the federal court must dismiss the non-diverse
defendant”); Dumas v. ACCC Ins. Co., 2009 WL 3358479, *3 (11th Cir. Oct. 20, 2009) (where
district court found that defendant was fraudulently joined, “the district court correctly dismissed
him from the action”). Simply put, the June 13 Order made a legal finding that there was no
possibility that Roberson could state a viable Alabama claim of outrage based on the specific

an outrage as recognized by Alabama law.” (Doc. 26, at #9, at 2-3.) Plaintiff belabors the point
elsewhere in her brief, arguing that “Outrage is a viable claim under Alabama law in cases of
sexual harassment, and that the Plaintiff has made such a claim.” (Id. at 4.) Certainly, a fair
reading of plaintiff’s brief is that she relies on allegations of sexual harassment as the basis of her
outrage claim and that she articulates no explanation, argument or legal analysis to demonstrate
how any retaliation component of her outrage claim might be actionable under the stringent
Alabama legal standard, so as to survive Rule 12(c) review.

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acts of alleged sexual harassment perpetrated by Webb. Plaintiff defends her outrage claim from
defendants’ Rule 12(c) Motion solely by arguing that her allegations of sexual harassment
suffice to state an outrage claim under Alabama law; however, the June 13 Order conclusively
forecloses that line of argument.
For all of the foregoing reasons, the Court finds that no issues of material fact exist, and
that defendants are entitled to judgment as a matter of law on the outrage claim asserted by
Roberson. Accordingly, defendants’ Motion for Judgment on the Pleadings is granted with
respect to plaintiff’s claim for the Alabama tort of outrage.
C.

Negligent Hiring/Training/Supervision/Retention.

Defendant Bancorp also seeks judgment on the pleadings on plaintiff’s claim of
negligent/wanton hiring, training, supervision and retention. For a plaintiff to establish such a
claim under Alabama law, she “must prove the underlying wrongful conduct of employees.”
Short, 805 F. Supp.2d at 1277 (citations omitted); see also Flying J Fish Farm v. Peoples Bank
of Greensboro, 12 So.3d 1185, 1196 (Ala. 2008) (dismissing negligent/wanton supervision claim
against employer upon holding that plaintiffs’ claims of wrongful conduct by employees had
been properly dismissed); Ogletree v. Bank of America, N.A., 2012 WL 4340024, *9 (N.D. Ala.
Sept. 17, 2012) (“when a court concludes that the underlying purportedly wrongful conduct
committed by the agent does not survive summary judgment, then the related negligent training
and supervision claim is also subject to dismissal”).
“Furthermore, the underlying conduct must constitute a common-law, Alabama tort
committed by the employee, not … a federal cause of action such as Title VII.” Short, 805 F.
Supp.2d at 1277 (citations and internal quotation marks omitted).4 The reasoning animating

4

See also Shuler v. Ingram & Associates, 2011 WL 4495624, *6 (11th Cir. Sept.
29, 2011) (“[h]ere, the Shulers’s wanton and reckless supervision and training claim fails as a
matter of law because they have failed to establish that Ingram’s employees committed any tort
under Alabama law”); Buckentin v. SunTrust Mortg. Corp., --- F. Supp.2d ----, 2013 WL 830887,
*11 (N.D. Ala. Mar. 4, 2013) (“not just any ‘incompetency’ suffices to give rise to a cause of
action for so-called negligent hiring, training, and supervision liability. Rather, Plaintiffs must
prove that an allegedly incompetent employee committed a state law tort.”); Thrasher v. Ivan
Leonard Chevrolet, Inc., 195 F. Supp.2d 1314, 1320 (N.D. Ala. 2002) (“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.”)
(citations omitted); Williams v. Daiichi Sankyo, Inc., 2012 WL 3627765, *3 (N.D. Ala. Aug. 21,
(Continued)
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Bancorp’s Rule 12(c) Motion is straightforward, to-wit: In the absence of any allegation that
Webb committed any other common-law Alabama tort, dismissal of Roberson’s outrage claim is
fatal to her ability to pursue a separate cause of action against Bancorp for negligent/wanton
hiring, training, supervision and retention. In response, plaintiff does not quarrel with the
premise that she must allege a viable underlying Alabama common-law tort against Webb in
order to assert a claim against Bancorp for negligent/wanton hiring, training, supervision and
retention. Nor does Roberson identify other predicate torts that might support such a claim
against Bancorp. Instead, plaintiff’s argument begins and ends with the following explanation:
“Given that Outrage is a viable claim under Alabama law in cases of sexual harassment, and that
the Plaintiff has made such a claim, the entire basis for the Defendants’ argument against the
Plaintiff’s claim for negligent hiring, training, and supervision is without merit.” (Doc. 26, at #9,
at 4.)
The problem, of course, is that Judge Granade and this Court have held that Roberson’s
Complaint does not plead a viable claim of outrage against Webb. As such, there is no
underlying Alabama tort claim against Webb on which plaintiff may bootstrap a negligent/
wanton hiring, training, supervision and retention claim against Bancorp. That claim is properly
dismissed under Rule 12(c), Fed.R.Civ.P.
III.

Conclusion.
For all of the foregoing reasons, the Court finds that no issues of material fact exist, and

that defendants are entitled to judgment as a matter of law on the state-law claims based on the
substance of the pleadings. Accordingly, defendants’ Motion for Judgment on the Pleadings
(doc. 26, at #6) is granted. Plaintiff’s state-law claim of outrage against Bancorp and Webb is
dismissed. Plaintiff’s state-law claim of negligent/wanton hiring, training, supervision and
retention against Bancorp is likewise dismissed. There being no other claims or causes of action
pending against Phillip Webb, the Clerk of Court is directed to terminate that defendant as a
2012) (“The plaintiff must allege underlying wrongful conduct that is an Alabama common law
tort to support a claim of wanton supervision.”); Rabb v. Georgia Pacific, LLC, 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.”) (citation and internal quotation marks omitted).

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party. This action shall proceed with respect to Roberson’s Title VII claims against Bancorp on
theories of sexually hostile work environment, gender discrimination, and retaliation.
DONE and ORDERED this 19th day of June, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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