MEMORANDUM OPINION AND ORDER
ANDREW L. BRASHER, District Judge.
This matter comes before the Court on motion by Koch Foods of Alabama LLC ("Defendant") to dismiss the state-law claims of intentional infliction of emotional distress or "outrage" brought by Kristopher Jones (Counts VII) and Earnest Moore (Count VIII). Upon consideration, Defendant's motion (Doc. 6) is due to be GRANTED.
STANDARD
When considering a motion to dismiss, the court accepts all facts alleged in the complaint as true and draws all reasonable inferences in the plaintiff's favor. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). There are two questions a court must answer before dismissing a complaint. First, the court must ask whether there are allegations that are no more than conclusions. If there are, they are discarded. Second, the court must ask whether there are any remaining factual allegations which, if true, could plausibly give rise to a claim for relief. If there are none, the complaint will be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
BACKGROUND
Plaintiffs Jones and Moore are African-American men who allege that Defendant wrongfully fired them because of their race and in retaliation for engaging in protected activity. Plaintiffs allege that a white supervisor suspended and fired Plaintiffs "for failing to follow Koch Foods' [lock out tag out] policy and procedures" on a "skinner 7-8," which is a machine used for chicken processing. Doc. 1 ¶¶ 39-42. Plaintiffs claim, however, that they did follow Koch Foods' procedures. They also claim that white employees were not disciplined for failing to follow these procedures. Doc. 1 ¶¶ 52-55. "[D]espite Plaintiffs' opposition to race discrimination and despite being made aware of the fact that Plaintiffs had in fact performed LOTO on skinner 7-8, Plaintiffs were subsequently fired from Koch Foods for failure to perform LOTO on that machine." Doc. 1 ¶ 60.
The Complaint brings claims for racial discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000(e) et seq., and for intentional infliction of emotional distress under Alabama common law. Defendant moved to dismiss only the common law claims for intentional infliction of emotional distress, Counts VII and VIII of the Complaint.
DISCUSSION
Defendant argues that the Complaint does not state a claim upon which relief may be granted for intentional infliction of emotional distress. See Fed. R. Civ. P. 12(b)(6). The Court agrees.
In Alabama, the tort of intentional infliction of emotional distress is referred to as "outrage." There are three elements to the tort. "The plaintiff must prove (1) that the defendant's conduct was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional distress so severe that no reasonable person could be expected to endure it." Ex parte Crawford & Co., 693 So.2d 458, 460 (Ala. 1997). The Supreme Court of Alabama has made it clear that "outrage" is a high bar, and the only consistently recognized categories of actionable conduct exist "in the family-burial context...[when] barbaric methods [are] employed to coerce an insurance settlement...and [in cases of] egregious sexual harassment." Little v. Robinson, 72 So.3d 1168, 1172 (Ala. 2011). In Little the court opined that, although the tort is not explicitly cabined to those three categories, the defendant in an outrage case must have done something akin to "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." Id. (quoting facts from O'Rear v. B.H., 69 So.3d 106 (Ala. 2011)).
For its part, this Court has held that garden-variety employment discrimination claims cannot meet the common law test for outrage. See McCreight v. AuburnBank, 2020 WL 1061675, at *3 (M.D. Ala. Mar. 4, 2020). Instead, for an employment termination to meet the common-law test for "outrage," the termination must be "for a reason which contravenes public policy...and...accompanied with the sound of fury." Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1387 (Ala. 1986); see also Ritchey v. S. Nuclear Operating Co., Inc., 2008 WL 11342662, at *2 (N.D. Ala. Feb. 14, 2008) (acknowledging the test from Harrell). See also Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.Supp.2d 1314, 1319 (N.D. Ala. 2002) (holding that a woman did not have a claim of outrage where she was harassed, scrutinized, and then fired on the basis of her pregnancy).
Plaintiff relies extensively on Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509 (M.D. Ala. 1996), but Patterson is inapposite. Patterson uses a different standard because the plaintiff in that case was not fired, but Plaintiffs here fail to meet it nonetheless. In Patterson, the plaintiff's supervisor sexually harassed her, subjected her to profane and racially derogatory statements, and "placed his hand on the Plaintiff in a rude and angry manner, and, as a result, the Plaintiff's leg was scratched and she was physically bruised." Id. at 1515-16. Another supervisor "yelled and screamed at her" and "insisted on humiliating her in front of her co-workers." Id. The plaintiff alleged that, because of this "intense and continued harassment and retaliation, she suffered serious psychological and medical problems." Id. The Court held that, based on these allegations, "a question of fact exists as to whether [the] alleged racial discrimination, retaliation, and sexual harassment constitute outrageous conduct and whether the Plaintiff suffered `emotional distress so severe that no reasonable person could be expected to endure it.'" Id. at 1526.
This case, unlike Patterson, is governed by Harrell's requirement that an employee's termination "contravene public policy" and be "accompanied with the sound of fury." Under that test, Plaintiffs have failed to identify a superlative element to support an outrage claim. Plaintiffs argue that they were falsely accused of violating a policy by their co-workers and that Defendant conducted an inadequate investigation into the issue. Doc. 13 at 7. These allegations are the very definition of a garden-variety workplace dispute that lacks both the continuous severity of Patterson and the sound of fury required by Harrell. The Court has little difficulty in concluding that the Supreme Court of Alabama would reverse a plaintiff's jury verdict on an outrage claim based on the facts as alleged in this complaint. As a result, Plaintiffs' outrage claims are due to be dismissed.
CONCLUSION
In light of the foregoing reasoning, Defendant's partial motion to dismiss is due to be and is GRANTED. Counts VII and VIII are DISMISSED.
Plaintiffs are given 14 days to amend the complaint in response to this order.
DONE and ORDERRED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 S.Ct. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 S.Ct. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD —no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
