United States District Court, N.D. Alabama
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
the court is Sam's East, Inc.'s motion to reconsider
the October 22, 2018 order finding its motion to dismiss
moot. Doc. 23. Sam's East notes correctly that the court
inadvertently failed to rule on its motion to dismiss two of
Gregory Minard's state law claims, which Minard repleaded
in his amended complaint, doc. 14. Upon further review, the
motion to reconsider, doc. 23, is due to be granted, and
Minard's outrage claim is due to be dismissed.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Twombly, 550 U.S. at 557).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (citations omitted) (internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
is a 59-year-old African American man who worked for
Sam's Club for over 32 years, most recently at the
Irondale, Alabama location as General Manager. Doc. 14 at 4.
Minard allegedly never received any disciplinary violations
prior to his discharge and received praise for his
performance, including for overseeing one of the top stores
in overall sales. Id. at 5. In 2017, the Irondale
location was on track to meet and/or exceed annual budget
numbers, with Minard slated to earn a $70, 000 bonus that
year due to the store's performance. Id. at 6.
Minard never received the bonus and lost his position
five year period prior to his discharge, purportedly in
compliance with prior policy, Minard allowed customer Dave
Wood, acting on behalf of a local grocery distributor, to
pre-pay for truckloads of French fries and to subsequently
pick up the order when the store received the fries.
Id. at 7. In August 2017, Athena Rushford, District
Loss Prevention Manager, informed Minard about a new company
policy prohibiting customers from pre-paying for their
purchases. Id. at 6. Two months later, the company
required Minard to provide a written statement to loss
prevention due to a discrepancy in inventory and because of
an investigation into Wood's large orders. Id.
at 8. After the investigation, Sam's East allegedly
informed Minard that it could not determine the source of the
overage and attributed it to corporate error. Id. at
9. Nonetheless, the investigation led to Minard's
discharge for “gross misconduct” involving
“serious integrity issues, ” which also led to
the termination of his health insurance. Id. at
initially filed this suit against Wal-Mart, Inc. (an
improperly named defendant) alleging various discrimination,
harassment, and retaliation claims under Section 1981 of the
Civil Rights Act of 1866 as amended, 42 U.S.C. § 1981,
Title VII of the Civil Rights Acts of 1964, 42 U.S.C. §
2000e-2, the Age Discrimination in Employment Act, 29 U.S.C.
§ 623(a)(1) (“ADEA”), and the Alabama Age
Discrimination in Employment Act, Ala. Code § 25-1-20
et seq. (1975) (“AADEA”). Doc. 1. Minard
also asserted state law claims, including invasion of
privacy, intentional infliction of emotional distress
(IIED), and negligent or wanton hiring,
supervision, training, and retention. Id.
Identifying themselves as the proper defendant, Sam's
East responded to the complaint with a motion to dismiss all
of Minard's claims. Doc. 7. Minard subsequently filed an
amended complaint dropping all of his retaliation and
harassment claims and the invasion of privacy claim. Doc. 14.
However, he retained his outrage and negligent hiring claims.
As a result, the amended complaint did not moot Sam's
East's motion to dismiss these two claims.
outrage claim is based on the purported fabrication of a
pretextual reason to wrongfully investigate and discharge
him, denial of transfers to open positions, denial of health
benefits affecting his spouse's medical treatment, and
interference with his dependents' ability to obtain
prompt medical attention. Doc. 14 at 21-22. At issue here is
whether these allegations rise to the level of extreme,
outrageous, or atrocious actions that are utterly intolerable
in a civilized society. For the reasons below, the court
finds that Mindard has failed to plead a plausible claim for
recover under outrage, Minard must demonstrate conduct that
“(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.”
Green Tree Acceptance, Inc. v. Standridge, 565 So.2d
38, 44 (Ala.1990) (citing American Road Service Co. v.
Inmon, 394 So.2d 361 (Ala.1980); see also Hill v.
Cundiff, 797 F.3d 948, 983 (11th Cir. 2015). Relevant
here, in light of the Alabama Supreme Court decision in
Wilson v. Univ. of Alabama Health Servs. Found.,
P.C., No. 1160654, 2017 WL 6397654 (Ala. Dec. 15, 2017),
proper inquiry at this stage is whether the alleged conduct
was “so extreme in degree as to go beyond all possible
bounds of decency and be regarded as atrocious and utterly
intolerable in a civilized society.” 2017 WL 6397654,
at *3 (citing Potts v. Hayes, 771 So.2d 462, 465
(Ala. 2000)). Thus, Minard must “set forth each of the
elements of the tort of outrage in [his] complaint, and
[make] a showing that [he] is entitled to relief.”
Thomas v. Williams, 21 So.3d 1234, 1240 (Ala. Civ.
Minard maintains that he easily satisfies the relevant
elements for an outrage claim because his wrongful discharge
denied him employment, the opportunity for a $70, 000 bonus,
and health insurance coverage, which affected his
family's access to necessary medical treatment and prompt
medical attention. Doc. 18 at 5. A review of the complaint,
however, shows that Minard has not alleged sufficient facts
to demonstrate that Sam's East had the requisite
knowledge about his family's medical needs, intended to
affect his family's medical needs, or engaged in willful,
malicious conduct. See Rice v. United Ins. Co. of
Am.,465 So.2d 1100 (Ala. 1984) (finding conceivable
outrage when an employer was aware of plaintiff's
pregnancy and took drastic measures to force her to
voluntarily take disability leave which resulted in emotional
distress and a miscarriage); cf. Estate of Reed v. Ponder
Enterprises, Inc., No. 1:11CV554-CSC, 2012 WL 1031487,
at *7 (M.D. Ala. Mar. 27, 2012) (finding no outrage claim
even though the employer was aware of plaintiff's ...