WILLIAM H. STEELE, District Judge.
This matter comes before the Court on defendant Ameri-Force Craft Services, Inc.'s Motion to Dismiss (doc. 11). The Motion has been briefed and is now ripe for disposition.
Plaintiff, Christopher D. Craighead, brought this sexual harassment/retaliation action against defendants, Austal USA, LLC and Ameri-Force Craft Services, Inc.
In relevant part, the Complaint sets forth the following well-pleaded factual allegations (all of which are taken as true for purposes of the pending Motions): Ameri-Force, an employee staffing company, placed Craighead in an electrician/fiber technician position with Austal in June 2015. (Doc. 1, ¶¶ 5, 11.) While at Austal, Craighead was transferred to the crew of Austal supervisor Brian Fore in February 2016. (Id., ¶ 15.) Immediately thereafter, Fore initiated a campaign of "sexual harassment and hostility" directed toward Craighead. (Id., ¶ 17.) Such harassment was manifested in the form of "hostile and sexually explicit text messages and pictures" that Fore sent to Craighead, as well as sexually explicit comments (including comments about oral sex, Craighead's sexual orientation and male genitalia) directed at Craighead. (Id., ¶ 19.) On March 21, 2016, Craighead spoke with Austal supervisor Richard Tally to request a transfer away from Fore's supervision (without identifying any alleged harassment); however, Tally simply instructed Craighead to speak with Fore directly, after which Fore's harassing conduct worsened. (Id., ¶ 21.) On March 29, 2016, Craighead finally reported the sexual harassment, in response to which Tally instructed Craighead to notify Ameri-Force. (Id., ¶¶ 22-23.) When Craighead promptly followed this instruction, Ameri-Force's branch manager informed him that Ameri-Force "would address the harassment with Austal." (Id., ¶ 24.) Later that afternoon, Austal notified Ameri-Force that Austal "had terminated Plaintiff's service" and provided no reason for doing so. (Id., ¶¶ 26-27.) Ameri-Force did not request that Austal take any further action. (Id., ¶ 29.) Craighead was "unable to find a position for over six months after being terminated from Austal." (Id., ¶ 30.)
On the strength of these factual allegations, the Complaint purports to set forth seven causes of action against defendants. In "Count One and Two," Craighead asserts a claim for "Quid Pro Quo and Hostile Work Environment" under Title VII for what he says are "the actions of Austal Supervisors" Fore and Tally. (Id., ¶ 32.) As pleaded, Counts One and Two proceed from the theory that Craighead "was being subjected to repeated sexual harassment" by Fore, and that "Defendants are liable for such misconducted [sic] and failed to take effective remedial measures to prevent such unlawful behavior by Fore." (Id., ¶ 34.) Count Three is styled as a claim for retaliation under Title VII, alleging that "[t]here existed an employer-employee relationship between Plaintiff and Defendants" and that after Craighead complained about Fore's conduct, he "was subjected to intentional retaliation by Defendants. Plaintiff was terminated as a result of his complaints." (Id., ¶¶ 41-42.) In Count Four, Craighead brings a state-law claim for negligent/wanton hiring, training, supervision and retention solely against Austal (not Ameri-Force) for failing to make and enforce adequate, effective sexual harassment policies and for failure to train Fore and others on sexual harassment. (Id., ¶¶ 49-50.) Meanwhile, Count Five is an Alabama claim of invasion of privacy, alleging that "Defendants invaded Plaintiff's personal and emotional sanctum by continually texting sexual explicit texts and images to Plaintiff." (Id., ¶ 55.) Count Six is a state-law claim of assault and battery, predicated on the theory that "Defendants did commit assault and battery of Plaintiff by continually allowing Fore and other employees of Defendants to send sexually explicit text messages and images to Plaintiff," because Fore engaged in these acts while "acting as an agent and employee of Austal." (Id., ¶¶ 61-62.) Finally, in Count Seven, Craighead asserts a state-law claim of intentional infliction of emotional distress, based on the notion that "[t]he conduct of Defendants as aforesaid, was extreme, outrageous and beyond the bounds of decency." (Id., ¶ 68.)
In its Motion to Dismiss, Ameri-Force maintains that dismissal of all causes of action asserted against it is warranted under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff opposes the Motion. For its part, Austal summarily adopts many of Ameri-Force's objections wholesale in a Motion for Judgment on the Pleadings under Rule 12(c) that rides the coattails of Ameri-Force's Motion.
To withstand Rule 12(b)(6) scrutiny and satisfy the minimum pleading requirements of Rule 8(a), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," so as to "nudge[] [his] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). "This necessarily requires that a plaintiff include factual allegations for each essential element of his or her claim." GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11
For purposes of this analysis, the Court accepts as true all well-pleaded factual allegations in the Complaint, and draws all reasonable inferences in the plaintiff's favor. See, e.g., Almanza, 851 F.3d at 1066 (on review of a dismissal for failure to state a claim, "[w]e must accept the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff"); Keating v. City of Miami, 598 F.3d 753, 762 (11
As movant correctly points out, there are multiple substantial defects in the portion of Craighead's Complaint labeled "Count One and Two," which purports to assert causes of action against Ameri-Force pursuant to Title VII for both quid pro quo and hostile work environment. (Doc. 1, ¶¶ 31-39.)
First, as a procedural matter, it is improper for Craighead to jumble what he calls two distinct claims together in his Complaint via a singular, undifferentiated tangle of allegations. The Complaint specifically alleges that "[t]hese are two separate claims against Defendants" (doc. 1, ¶ 32), even as it commingles them beyond individualized recognition. This is a textbook example of impermissible shotgun pleading. See, e.g., Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1323 (11
Second, although "Count One and Two" purports to be advancing, inter alia, a quid pro quo theory of liability, the Complaint as pleaded is devoid of factual allegations giving rise to a plausible claim for relief on such a theory. After all, "quid pro quo harassment" occurs "when an employee's expressed terms of employment, such as salary or continued employment, are conditioned upon compliance with the employer's sexual demands." Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11
Third, it is striking that Counts One and Two omit any references or plausible connections to defendant Ameri-Force. The alleged harasser, Brian Fore, is identified as an Austal employee, not an Ameri-Force employee. The same goes for Richard Tally, the Austal supervisor to whom Craighead reported the alleged harassment mere hours before Austal terminated his employment. Nothing in Counts One and Two appears to implicate Ameri-Force or to specify what Ameri-Force did or omitted to do that could plausibly give rise to Title VII liability for the alleged sexual harassment perpetrated by an
The bottom line is this: The Twombly/Iqbal pleading standard exists in order to ensure that defendants are given "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Randall, 610 F.3d at 705 (11
A similar infirmity infects Count Three, which Craighead frames as a Title VII cause of action for retaliation. The Complaint alleges that after Craighead engaged in protected activity by complaining about Fore's sexual harassment, he "was subjected to intentional retaliation by Defendants. Plaintiff was terminated as a result of his complaints." (Doc. 1, ¶ 42.) However, the Complaint omits any factual allegations that Ameri-Force ever terminated his employment or had anything to do with the termination of his employment. In briefing the Rule 12(b)(6) Motion, Craighead hastens to interject that "Collard at [Ameri-Force] and Tilly [sic] at Austal jointly terminated Craighead" (doc. 26, at 7), but no such allegation appears in the pleading, which simply alleges that "Austal had terminated Plaintiff's service" and "Austal chose to terminate Plaintiff at that time" without ever telling Ameri-Force why (doc. 1, ¶¶ 26-27). Likewise, Craighead's brief states that Ameri-Force engaged in unlawful retaliation by refusing to afford him other job placement opportunities (doc. 26, at 8); however, the Complaint says nothing of the sort.
In short, Count Three in its current form does not state a claim against defendant Ameri-Force upon which relief may be granted because it fails to allege that Ameri-Force did or failed to do anything in retaliation for Craighead's engaging in protected activity under Title VII.
In Count Five of the Complaint, Craighead asserts a state-law claim against defendants for the intentional tort of invasion of privacy.
"To succeed on a claim alleging invasion of privacy relating to sexual harassment, a plaintiff must show: (1) that the matters intruded into are of a private nature; and (2) that the intrusion would be so offensive or objectionable that a reasonable person subjected to it would experience outrage, mental suffering, shame, or humiliation." Ex parte Atmore Community Hosp., 719 So.2d 1190, 1194 (Ala. 1998) (observing that "extensive inquiries into one's sex life or looking up one's skirt may constitute an invasion of privacy"); see also Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 711 (Ala. 1983) (finding cognizable claim for invasion of privacy based on "improper inquiries into her personal sexual proclivities," where plaintiff "was subjected to intrusive demands and threats, including an inquiry as to the nature of sex between her and her husband," and harasser repeatedly "asked her whether she had ever engaged in oral sex"). In this context, courts have required "an offensive or objectionable prying or intrusion into the plaintiffs' private affairs or concerns," that is, some form of "examination or invasion of [plaintiff]'s private concerns." Stancombe v. New Process Steel LP, 652 Fed.Appx. 729, 738 (11
Applying these principles to Craighead's Complaint, the Court agrees with Ameri-Force that Count Five falls short of alleging a plausible invasion-of-privacy claim at this time. Again, the case law emphasizes the necessity of an offensive or objectionable prying or intrusion into private affairs, such as extensive inquiries about one's sex life or inappropriate physical contact. In its current form, Count Five alleges no such prying or intrusion, only that Fore sent offensive images "referencing oral sex and the size of Plaintiff's genitalia" and made unspecified comments "regarding oral sex, the Plaintiff's sexual orientation and male genitalia." What is missing from these allegations are any facts showing prying or intrusion into plaintiff's private affairs, as opposed to merely showing him offensive images and making offensive comments. The decisional authority summarized above reflects that this distinction matters under Alabama law in order for an invasion of privacy claim based on sexual harassment to be viable. Perhaps this deficiency may be remedied by Craighead pleading greater specificity about the purported harassment, as opposed to general descriptions of the offensive comments and images; however, in its current form, Count Five fails to state a plausible claim for invasion of privacy.
Count Six of Craighead's Complaint is a state-law claim for assault and battery. In his pleading, plaintiff alleges that defendants committed this tort by "continually allowing Fore and other employees of Defendants to send sexually explicit text messages and images to Plaintiff." (Doc. 1, ¶ 61.) Under well-settled Alabama law, however, mere transmission of sexually explicit messages and images does not and cannot constitute assault and battery. To the contrary, "[t]he plaintiff in an action alleging assault and battery must prove (1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or offensive manner." Dolgencorp, LLC v. Spence, 224 So.3d 173, 180 (Ala. 2016) (citations omitted); see also Walker v. City of Huntsville, 62 So.3d 474 (Ala. 2010) (same). The Complaint does not allege — and Craighead by all appearances cannot allege in good faith — that a touching occurred. When confronted with this defect in Ameri-Force's Motion to Dismiss, plaintiff does not even attempt to respond or articulate any factual or legal basis on which his allegations might give rise to a colorable claim of assault and battery under Alabama law. Accordingly, Count Six is
Finally, Ameri-Force moves for dismissal of Count Seven, in which Craighead raises a claim of intentional infliction of emotional distress, otherwise known as the tort of outrage. Alabama courts have recognized outrage claims in cases involving sexual harassment, but only "in the most egregious circumstances." Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 755 (11
Review of the foregoing authorities demonstrates the necessity of pleading specific details as to both the harassing conduct and the information furnished to the employer. Without such an in-depth description, it is impossible to evaluate whether Craighead has pleaded a cognizable claim for intentional infliction of emotional distress. In its current formulation, Count Seven lacks sufficient details to enable the Court to evaluate whether a plausible outrage claim is being asserted, as to both the outrageousness vel non of Fore's conduct and the knowledge vel non of Ameri-Force. The Complaint describes the allegedly harassing images and comments in only the most general terms (i.e., "explicit comments . . . regarding oral sex, the Plaintiff's sexual orientation and male genitalia"), and is silent as to the severity of such harassment except to describe it generically as "vulgar and demeaning." (Doc. 1, ¶¶ 19, 37.) Alabama's tort of outrage does not reach "mere insults, indignities, threats [or] annoyances." McIsaac v. WZEW-FM Corp., In., 495 So.2d 649, 651 (Ala. 1986) (citation omitted). Nor does it create a cause of action in tort for conduct that is simply "boorish, vulgar, and completely unacceptable." Stancombe, 652 Fed.Appx. at 739. Without more detail, it cannot be said that Count Seven raises a plausible claim of outrage based on egregious sexual harassment. Likewise, the Complaint as pleaded provides no information as to the level of detail utilized by Craighead in reporting the harassment to his employer(s). At best, the Complaint alleges that "Plaintiff informed Tally of the harassment he was experiencing" and "met with" Ameri-Force's branch manager about the subject (doc. 1, ¶¶ 22, 24), without elaborating on what exactly he told them at that time.
In light of these shortcomings in the manner in which Count Seven was pleaded, the Court cannot find on this record that Craighead has raised a plausible claim for the tort of outrage under Alabama law. And in his Response to Ameri-Force's Rule 12(b)(6) Motion, Craighead presents no argument or authority in defense of Count Seven.
During the pendency of briefing on defendant Ameri-Force's Motion to Dismiss, defendant Austal USA, LLC, which had previously filed an Answer (doc. 12), filed a Motion for Judgment on the Pleadings (doc. 25) pursuant to Rule 12(c), Fed.R.Civ.P.
First, Austal argues that it cannot be liable for the intentional torts alleged in Counts Five through Seven (invasion of privacy, assault and battery, outrage) of Craighead's Complaint because no adequate basis for vicarious liability has been pleaded. For the reasons previously set forth in footnote 8, supra, the Court rejects this argument and finds that, as applied to Austal, the Complaint sets forth a plausible pathway for vicarious liability on a ratification theory.
Second, Austal echoes Ameri-Force's contention that Count Five (invasion of privacy) is insufficiently pleaded. As discussed in section II.D., supra, the Court concludes that Count Five as pleaded lacks sufficient facts showing a prying or intrusion into Craighead's private affairs; however, plaintiff will be given an opportunity to replead the claim to include the requisite level of detail about the harassing conduct.
Third, Austal adopts Ameri-Force's assertion that the Complaint fails to allege sufficient facts to support a claim for assault and battery in Count Six. The Court agrees. As stated in section II.E., supra, Count Six is fatally defective as pleaded because is devoid of any facts raising a plausible inference that a harmful or offensive touching took place.
Fourth, Austal seeks judgment on the pleadings as to Count Seven (outrage) for having been insufficiently pleaded. In section II.F., supra, the Court explained why Count Seven in its current form does not state a plausible claim because it lacks the necessary detail to show the severity or egregiousness of the alleged harassment, or the degree to which Craighead reported Fore's misconduct to his employer(s). These conclusions apply with equal force to Count Seven as it pertains to Austal as they do to Count Seven as applied to Ameri-Force.
Fifth, Austal adopts all of Ameri-Force's "shotgun pleading" arguments. For the reasons described above, the Court finds that these arguments are well-founded insofar as Craighead's purportedly separate claims under Title VII for quid pro quo and hostile work environment are pleaded as a single run-on cause of action under the heading "Count One and Two." In all other respects, the "shotgun pleading" arguments as to Austal are not well taken.
Sixth, insofar as Austal reiterates Ameri-Force's objections to the Complaint's listing of fictitious defendants, those fictitious defendants have already been dismissed from this action pursuant to the Court's ruling on Ameri-Force's Rule 12(b)(6) Motion. No further ruling is necessary on behalf of Austal to excise plaintiff's fictitious-party claims from these proceedings.
For all of the foregoing reasons, the Court finds that Craighead's Complaint is deficiently pleaded in multiple respects. As such, both Ameri-Force's Motion to Dismiss (doc. 11) and Austal's Motion for Judgment on the Pleadings (doc. 25) are