WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on defendants' Motion for Judgment on the Pleadings (doc. 26, at #6
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.)
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 (11
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 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.
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 (11
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
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).
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
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