Roberson v. BancorpSouth Bank, Inc. et al

Filing 28

ORDER DECLINING TO ADOPT 26 Report and Recommendation as set out. Plf's 8 Motion to Remand is DENIED as set out. Signed by Judge Callie V. S. Granade on 6/13/2013. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ADRIA E. ROBERSON,
Plaintiff,
vs.
BANCORPSOUTH BANK, INC.
and PHILLIP WEBB,
Defendants

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) CIVIL ACTION NO. 12-716-CG-N
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ORDER

This matter is before the court on the Report and Recommendation of the
Magistrate Judge (Doc.26), and defendants’ objection. (Doc. 27). Upon a de novo
review of those portions of the report and recommendation to which objection is
made, the court declines to adopt the Report and Recommendation and finds that
the motion to remand (Doc. 8) should be denied.
I. Background
This action was removed to this court from the Circuit Court of Baldwin
County, Alabama on November 19, 2012 by defendants. (Doc. 1). In the notice of
removal, defendant BancorpSouth Bank Inc. (“Bancorp”) asserted that while there
was not complete diversity among the parties, diversity of citizenship existed
because defendant Phillip Webb was fraudulently joined. (Doc. 1). In the complaint,
plaintiff, Adria E. Roberson, asserts two counts. (Doc. 1-1). Count One asserts a

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claim against Bancorp for negligent hiring, training, supervision and retention.
(Doc. 1-1, pp. 5-7). Count Two asserts a claim against Bancorp and Webb for
outrage and wantonness. (Doc. 1-1, pp. 7-8). Specifically, the complaint alleges that
Webb, her immediate supervisor subjected her to “repeated harassment,” “which
included, but was not limited to denigrating sexual harassment.” (Doc. 1-1, p. 4, ¶
9). The complaint further alleges the following with regard to Webb:
10. The sexual harassment and repulsive behavior of Mrs. Roberson’s
immediate supervisor, Webb, included, at a minimum, emails
discussing the degree to which office or other personnel were physically
attractive or “hot”; verbal commentary regarding the use of Viagra and
its affects; actual disbursement of Viagra, a controlled substance, while
making sexually suggestive or inappropriately vulgar comments;
emailing office jokes, including punch lines like “learning to live with
the pricks in your life” and “ I be yankin’ off alone”; and an onslaught
of nude or partially nude photographs which inappropriately
highlighted human anatomy, including captions of a prurient and lewd
nature.
****
23. Mrs. Roberson alleges that Bancorp and Webb, in response to her
reporting of harassment and workplace violations, intentionally and
with full disregard for the effect, and with the intention to inflict
severe emotional distress upon her person for reporting unlawful
instances of harassment and a hostile work environment, and
systematically targeted her person in the hope that she would
voluntarily resign her position, and that Bancorp knew or should have
known that the resulting severe emotional distress was the result of
their extreme and outrageous conduct. Said conduct was so extreme
and outrageous so as not to be tolerated in a civilized society.
24. Mrs. Roberson alleges that as a result of hostile targeting and other
said extreme and outrageous conduct, she suffered severe emotional
distress and resulting physical injury to her person, which includes,
but is not limited to, being rushed to the emergency room, and
thereafter requiring regular medical care and treatment proximately
related to said outrage.
(Doc. 1-1, pp. 4-5, 7-8).
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Defendants submitted the affidavit of Mr. Webb which described the emails
and other conversations of which plaintiff complains in her complaint and attaches
copies of non-work related email conversations between plaintiff and Webb. Mr.
Webb avers that he and plaintiff “forwarded each other arguably off-color jokes
and/or pictures” and that none of the emails he sent her were “of a sexually
harassing nature.” (Doc. 19-3,¶¶ C, D). Webb admits that he discussed Viagra with
plaintiff and her husband on one occasion. (Doc. 19-3, ¶ E). Webb reports that his
wife was also present during the Viagra conversation. (Id.) Plaintiff and her
husband mentioned they were going out of town to celebrate their wedding
anniversary and Webb says he gave plaintiff’s husband a Viagra pill for their trip.
(Id.) Any comments he made about Viagra were made in front of both Webb’s wife
and plaintiff’s husband. (Id.)
In the first email conversation, Webb stated: “All the women there are not
hot. JUST KIDDING. JUST KIDDING.” (Doc. 19-4, pp. 1-2). To which plaintiff
responded: “That is one thing I will not repeat especially to my ladies over here” and
Webb replied: “How much do I owe you.” (Doc. 19-4, p. 1).
The second email conversation consists of a joke/story about two porcupines
attempting to get close to each other for warmth and learning to live with the
injuries from quills. (Doc. 19-5). The email stated that the real moral of the story is
“LEARN TO LIVE WITH THE PRICKS IN YOUR LIFE.” (Doc. 19-5, p. 2). Webb
forwarded the porcupine story to plaintiff and numerous other people with the
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statement: “Who is the prick here. Could not be me!!” (Doc. 19-5, p. 1).
In the third email, Webb forwarded an invitation or ad for “Ibiyinka Alao
Gallery Talk” to plaintiff and numerous others. (Doc. 19-6). Plaintiff responded
with: “How do you say his name?” (Doc. 19-6, p. 2). Webb first replied: “I be yankin’
off. I don’t know……” and then replied a second time: “No, I think it is I be yankin’
off alone.” (Doc. 19-6, pp. 1-2).
The fourth email set consists of 53 pages most of which include photos from
“People of Walmart” showing people shopping at stores wearing unusual or
unattractive and sometimes revealing attire or doing unusual things in a public
store. (Doc. 19-7). There is also a picture of two men falling while playing soccer in
which one of their cleats caught the back of the other’s shorts and reveals the man’s
buttocks. (Doc. 19-7, p. 45). There is a picture of a child’s rear end, painted like a
jack-o’-lantern, with the caption “HAPPY HALLOWEEN 2006.” (Doc. 19-7, p. 22).
There is a picture of a bull pulling the front cab part of a car with the statement:
AND BE HAPPY WITH THE CHANGES THAT OBAMA HAS
PLANNED FOR YOU!!
Remember, when Ronald Reagan was president We also had Bob Hope
and Johnny Cash still with us … Now we have Obama, but no Hope
and no Cash!!!!!
(Doc. 19-7, p. 19). Additionally, there are pictures of a Mercedes Maybach vehicle,
which has luxury items such as a bar and reclining back seats. (Doc. 19-7, pp. 1718). There is a quote reportedly from Larry, the Cable Guy, that states the
following:

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Even after the Super Bowl victory of the New Orleans Saints, I have
noticed a large number of people implying with bad jokes that Cajuns
aren’t smart. I would like to state for the record that I disagree with
that assessment. Anybody that would build a city 5 feet below sea level
in a hurricane zone and fill it with Democrats that can’t swim is a
damn genius!
(Doc. 19-7, pp. 14-15).
II. The Magistrate Judge’s Report & Recommendation
The Magistrate Judge stated that she “could not determine with certainty
that defendant Webb’s alleged conduct does not arguably fall within the admittedly
limited scope of [the tort of outrage].” (Doc. 26, p. 10, citations omitted). The
Magistrate Judge went on to state that “the fact that the Alabama Supreme Court
has only found facts which constitute outrage in limited situations is not equivalent
to a per se bar to such a claim in other circumstances.” (Doc. 26, p. 11). The
Magistrate Judge explained that “Defendants bear the burden of persuasion and
the record in this case is insufficient to allow the Court to find that plaintiff’s claim
of outrage against Webb was merely an artifice to avoid removal to this Court. (Doc.
26, p. 11). Accordingly, the Magistrate Judge recommended that the court grant
plaintiff’s motion to remand.
III. Discussion
Defendants object to the Magistrate’s recommendation asserting that if the
court follows Legg v. Wyeth, 428 F.3d 1317 (11th Cir. 2005), as it should, then
Webb’s uncontradicted affidavit demonstrates that there is no possibility that

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plaintiff has a viable outrage claim against Webb. After review of the relevant case
law and the facts of this case, the court agrees.
A. Removal Standard
“In removal cases, the burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.” Friedman v. New York Life Insurance
Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (internal quotes omitted). The removal
statute should be construed narrowly, with all doubts resolved against removal.
Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996); see also Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941).
In a removal case alleging fraudulent joinder, the removing party has the
burden of proving either: (1) there is no possibility the plaintiff can establish a
cause of action against the resident defendant; or (2) the plaintiff has fraudulently
pled jurisdictional facts to bring the resident defendant into state court. Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); see also Triggs v. John Crump
Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The removing party’s burden is
a heavy one. “[t]he defendant must make such a showing by clear and convincing
evidence.” Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278 (11th Cir.
2006)(quoting Crowe, 113 F.3d at 38. "The federal court makes these
determinations based on the plaintiff’s pleadings at the time of removal; but the
court may consider affidavits and deposition transcripts submitted by the parties."
Crowe, 113 F.3d at 1538 (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549

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(5th Cir. 1981)). In assessing a fraudulent joinder objection, the court must view
the factual allegations in the light most favorable to the plaintiff and resolve any
uncertainties about applicable law in the plaintiff’s favor. See Pacheco de Perez v.
AT & T Co., 139 F.3d 1368, 1380 (11th Cir. 1998); Poole v. Am. Int’l Group, Inc., 414
F.Supp.2d 1111, 1116 (M.D. Ala. 2006); Jones v. Honeywell Int’l, Inc., 385
F.Supp.2d 1268, 1271 (M.D. Fla. 2005). “The plaintiff need not have a winning case
against the allegedly fraudulent defendant; he need only have a possibility of
stating a valid cause of action in order for the joinder to be legitimate.” Triggs, 154
F.3d at 1287, see also Pacheco de Perez, 139 F.3d at 1380 (noting that a “colorable
claim” is all that’s required to negate fraudulent joinder argument). “In a
fraudulent joinder inquiry, ‘federal courts are not to weigh the merits of a plaintiff's
claim beyond determining whether it is an arguable one under state law.’” Pacheco
de Perez, 139 F.3d at 1380-1381 (quoting Crowe, 113 F.3d 1536, 1538 (11th
Cir.1997)). In other words, "if there is even a possibility that a state court would
find that the complaint states a cause of action against any one of the resident
defendants, the federal court must find that the joinder was proper and remand the
case to the state court." Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir. 1983),
superseded by statute on other grounds as stated in Wilson v. General Motors
Corp., 888 F.2d 779 (11th Cir. 1989).
B. Outrage Claims in Alabama
In this case, the complaint asserts a claim of outrage against defendant
Webb. While Alabama courts recognize the tort of outrage, they have consistently
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deemed it 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) (noting that the Alabama Supreme Court “has held in a large majority of
the outrage cases reviewed that no jury question was presented”). Under current
Alabama law, a plaintiff cannot prevail on an outrage claim unless she establishes
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.” Harrelson v. R.J., 882 So.2d 317, 322 (quoting
Thomas, 624 So.2d at 1043). The Alabama Supreme Court has recognized the tort
of outrage in only three areas: “(1) wrongful conduct within the context of family
burials;1 (2) an insurance agent’s coercing an insured into settling an insurance
claim;2 and (3) egregious sexual harassment.”3 Callens v. Jefferson County Nursing
Home, 769 So.2d 273, 281 (Ala. 2000). Outside of these categories, shocking conduct
is often deemed by Alabama courts to be insufficient to create a jury question.
Styron v. City of Foley, 2005 WL 3098926, *6 (S.D. Ala. 2005).

1 See e.g., Gray Brown-Service Mortuary, Inc. v. Lloyd, 729 So.2d 280 (Ala. 1999) (cemetery’s
secretive disinterment and gross abuse of corpse supported judgment in favor of plaintiff).
2 See e.g., National Security Fire & Cas. Co. v. Bowen, 447 So.2d 133, 141 (Ala. 1983) (insurance
investigators’ orchestration of false criminal charges against insured, threats of harm to insured’s
son, and holding insured at gunpoint to coerce settlement of insurance claim was conduct “so
horrible, so atrocious, [and] so barbaric” as to constitute outrage).
3 See e.g., Machen v. Childersburg Bancorporation, 761 So.2d 981 (Ala. 1999) (reversing summary
judgment on finding that evidence of repeated inappropriate sexual conduct by plaintiff’s supervisor
at work precluded summary judgment).

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C. Legg v. Wyeth
Defendants assert that this court should follow Legg v. Wyeth, 428 F.3d 1317
(11th Cir. 2005). In Legg v. Wyeth, the Court found removal was proper because the
defendant pharmaceutical company produced affidavits from three of its sales
representatives containing undisputed facts, which made it impossible to establish
a claim against any resident defendant. Id., 428 F.3d at 1319. Specifically, the
affidavits established that one representative was not an in-state resident, another
representative did not sell the drug at issue, and the third representative had no
way of knowing of the health risks of the drug other than what was publicized. Id.
at 1321. The Court found that the plaintiff's failure, in the face of such evidence, to
dispute any of the material allegations, doomed the claims against the sales
representatives. See Id. “When the Defendants' affidavits are undisputed by the
Plaintiffs, the court cannot then resolve the facts in the Plaintiffs' favor based solely
on the unsupported allegations in the Plaintiffs' complaint.” Id. at 1323. Although
the court must resolve all questions of fact in favor of the plaintiff, “there must be
some question of fact before the district court can resolve that fact in the plaintiff’s
favor.” Id. at 1323.
D. Plaintiff’s Claim Against Webb
Plaintiffs assert that the claim against Webb constitutes “egregious sexual
harassment.” According to plaintiffs, the alleged conduct is just the sort of conduct
that has been recognized in Alabama as sufficient to support a claim of outrage. In
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particular, plaintiffs point to allegations that Webb disseminated pornographic
material, disbursed a controlled substance utilized for sexual performance and
engaged in “other instances of unlawful and improper denigrating sexual
harassment in the workplace.” (Doc. 8, pp. 3-4). Plaintiffs point out that they have
alleged that the conduct was extreme and outrageous and caused plaintiff severe
mental anguish and emotional distress. (Doc. 8, p. 4). Plaintiffs further allege that
the conduct was intentional and so severe as to require emergency medical
treatment. However, as explained above, the court is not limited in its analysis to
considering only the allegations of the complaint, but may consider affidavits and
deposition transcripts submitted by the parties, viewed in the light most favorable
to the plaintiff.
In the instant case, defendants submitted an affidavit which describes in
detail Webb’s purported wrongful conduct. Plaintiffs have not submitted any
affidavits, deposition testimony or even argument that further details the factual
allegations of the complaint. Nothing has been presented that casts doubt on the
veracity of Webb’s affidavit. The factual assertions in the affidavit are generally
consistent with the factual allegations of the complaint in that the affidavit admits
Webb disseminated revealing or partially nude photos, disbursed a controlled
substance utilized for sexual performance and distributed other emails that were
arguably inappropriate for a supervisor to send to an employee. However, a review
of the affidavit and its attachments clearly shows that the conduct was not so

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extreme and outrageous that it would support a claim of outrage. Since these facts
are uncontested by plaintiffs, the court under Legg v. Wyeth, cannot then resolve
the facts in the plaintiffs' favor based solely on the unsupported allegations and
legal conclusions in the complaint. While the factual assertions in the affidavit
match up with the factual allegations in the complaint, they do not support the
legal conclusions asserted in the complaint. In other words, the facts averred by
Webb do not constitute the type of egregious sexual harassment that courts in
Alabama have found to satisfy a claim for outrage.4
When sexual harassment forms the foundation for an outrage claim, the
alleged outrageous conduct must amount to more than “unwanted ‘groping’ and
comments.” See K.M. v. Ala. Dep’t of Youth Services, 360 F. Supp. 2d 1253, 1260-61
(M.D. Ala. 2005) citing Turner v. Hayes, 719 So.2d 1184, 1187 (Ala. Civ. App. 1997),
rev'd on other grounds, Ex parte Atmore Cmty. Hosp. v. Hayes, 719 So.2d 1190 (Ala.
1998) (woman who claimed her supervisor sexually harassed her by touching her
under the armpits, near her breasts, on her leg, trying to look up her skirt, making
sexual innuendo, and touching his genital area in her presence, had not stated facts
so “flagrantly egregious” as to state a claim for outrage) and Saville v. Houston
Cnty. Healthcare Auth., 852 F. Supp. 1512, 1541 (M.D. Ala. 1994) (conduct of
defendant, who touched plaintiff on the ribs and the buttocks and made sexually
inappropriate comments to her, did not rise to the level of egregiousness required

4 It is questionable whether the facts even support the conclusion that the conduct was sexually

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for a claim of outrage). In the instant case, there was no touching or groping, only
comments and jokes, most of which were not delivered personally but by emails sent
to numerous other people. The communications described by Webb were not
extreme and outrageous and should not have caused emotional distress so severe
that no reasonable person could be expected to endure it. The inappropriate
communications clearly do not rise to the level of egregious sexual harassment. 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. Accordingly,
the court finds that Webb was fraudulently joined and that the case was properly
removed to this court.
CONCLUSION
After due and proper consideration of all portions of this file deemed relevant
to the issues raised, and a de novo determination of those portions of the report and
recommendation to which objection is made, the undersigned DECLINES TO
ADOPT the Report and Recommendation of the Magistrate Judge. It is
ORDERED that plaintiff’s motion to remand (Doc. 8) is DENIED.
DONE and ORDERED this 13th day of June, 2013 .
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

harassing, much less that it was extreme and outrageous.

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