Andrews et al v. Daeil USA Copr. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and, in the Alternative, Motion for More Definite Statement

M.D. Ala.September 19, 2016

28139695 v1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION STEVEN ANDREWS, KEISHA CARLISLE, CORDIE DRAKE, A. DENISE EDWARDS, KELLY FANNING, RODNEY HARRIS, VALERIE MOORE Plaintiffs, v. DAEIL USA CORP.; MANDO AMERICA CORPORATION; SUNG KEM, individually, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:16-cv-00582-TFM DEFENDANT MANDO AMERICA CORPORATION'S MOTION TO DISMISS AND, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT Shotgun pleadings have unacceptable consequences and repeatedly have been condemned by the Eleventh Circuit. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 981-84 (11th Cir. 2008), abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Strategic Income Fund, LLC v. Spear, Leads & Kellog Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Plaintiffs' 220 paragraph, 8 count Complaint, in which each count incorporates other paragraphs, including paragraph 215 which incorporates paragraphs 1 through 214, filed on behalf of seven named plaintiffs, none of whom ever were employed by Mando America Corporation ("Mando"), is exactly the type of deficient pleading the Eleventh Circuit had in mind when it stated: "The complaint is a model 'shotgun' pleading of the sort this court has been roundly, repeatedly, and consistently condemning for Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 1 of 17 28139695 v1 2 years …." Davis, 516 F.3d at 979. Moreover, many of Plaintiffs' claims are legally deficient on their face. As a result, Mando requests that this Court dismiss Plaintiffs' Complaint against it, or in the alternative, order Plaintiffs to file a more definite statement which satisfies the pleading requirements set forth in Davis. UNDISPUTED FACTS1 1. A third-party Charge of Discrimination was filed with the EEOC on or about April 7, 2014 by the Citizens Advocates Foundation for Justice alleging race and national origin discrimination against Daeil, not Mando, "on behalf of unidentified American and African American employees." See Doc. 1, ¶ 15. 2. Plaintiffs allege Mando purchased Daeil "[i]n early 2016." See Doc. 1, ¶ 38. 3. Plaintiffs also allege Mando "maintained control of much of Daeil's operations," but they do not provide any supporting facts nor do they set forth the time period during which they allege Mando controlled Daeil. See Doc. 1, ¶ 16. 4. Plaintiffs do not allege that they timely filed an EEOC charge of discrimination against Mando, nor do they allege they received a notice of right to sue from the EEOC. 5. Plaintiff Steven Andrews ("Andrews") alleges he was hired by Daeil on or about May 20, 2012 and was terminated on June 2, 2014, before the date Plaintiffs allege Mando purchased Daeil. See Doc. 1, ¶¶ 45, 55. 6. Plaintiff Keisha Carlisle ("Carlisle") alleges she was hired by Daeil on or about September 5, 2013 and was terminated on or about January 7, 2016 (again, before the alleged purchase date in early 2016). See Doc. 1, ¶¶ 60, 96. 1 For purposes of this Motion only, the facts alleged in Plaintiffs' Complaint, to the extent they are relied upon herein, are taken as true. These alleged facts may not be the true facts. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 2 of 17 28139695 v1 3 7. According to Plaintiff Carlisle, prior to her termination, she was "passed over" for positions in March and June 2015 and was yelled at and had her arm pushed by a supervisor, Sung Kem, around June 2015. See Doc. 1, ¶¶ 62-63, 66-68. 8. Plaintiff Cordie Drake ("Drake") alleges he was hired by Daeil in November 2013, passed over for the quality manager position, terminated in August 2014, and not rehired in March 2015 (again, before the alleged purchase date). See Doc. 1, ¶¶ 100, 102, 106. 9. Plaintiff A. Denise Edwards ("Edwards") alleges she began working for Daeil on or about April 7, 2013 and learned on or about April 20, 2015 "that her salary [had] been consistently lower than her Asian/Korean and Caucasian counterparts" (again, before the alleged purchase date). See Doc. 1, ¶¶ 112, 115. 10. Plaintiff Edwards further states she was "placed on administrative leave" on or about August 13, 2015 "because she filed a charge of discrimination against the company," and was terminated on or about June 1, 2016. See Doc. 1, ¶¶ 123-24. 11. Plaintiff Kelly Fanning ("Fanning") alleges he was hired by Daeil on or about April 5, 2010, performed supervisor job duties for five months without receiving a pay adjustment, was required to take a drug test after a forklift was damaged in December 2014, and was terminated on or about December 14, 2014 for attendance (again, before the alleged purchase date). See Doc. 1, ¶¶ 126, 135, 141-42. 12. According to Plaintiff Fanning, he was rehired through a staffing company on or about March 2, 2016 as a temporary employee and was terminated two days later after being told "the company does not rehire." See Doc. 1, ¶¶ 143-44. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 3 of 17 28139695 v1 4 13. Plaintiff Rodney Harris ("Harris") alleges he was "unlawfully denied" employment in April 2013 on the basis of his race and nationality (again, before the alleged purchase date). See Doc. 1, ¶ 147. 14. Plaintiff Harris further alleges he was not considered for other positions in August 2014, February 2015, and March 2015, but he acknowledges he did not apply for these positions through the staffing company allegedly used by Daeil or Mando to fill vacancies. See Doc. 1, ¶¶ 151-54. 15. Plaintiff Valerie Moore ("Moore") alleges she was hired on or about July 22, 2013, was paid less than Asian/Korean immigrant workers, and was terminated on April 27, 2015 (again, before the alleged purchase date). See Doc. 1, ¶¶ 157, 160, 162. 16. Plaintiffs' Complaint contains counts for the following: (1) Racial discrimination pursuant to Title VII and § 1981; (2) National origin discrimination;2 (3) Retaliation pursuant to Ala. Code § 25-5-11.1; (4) Retaliation pursuant to Title VII and § 1981; (5) Disparate impact pursuant to § 1981; (6) Negligent hiring, training, supervision, and retention; (7) Intentional infliction of emotional distress; and (8) Assault and battery. See Doc. 1, ¶¶ 167-220. 17. Rather than assert the claims that are specific to each Plaintiff and each Defendant and the facts relevant to each claim, Plaintiffs' Complaint asserts the claims against "Defendants 2 Plaintiffs do not list the statute pursuant to which they bring their national origin discrimination claim in Count Two of the Complaint. See Doc. 1, ¶¶ 173-80. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 4 of 17 28139695 v1 5 Daeil/Mando" collectively or simply "Defendant" and merely adopts and incorporates by reference every preceding paragraph. See Doc. 1, ¶¶ 167, 169, 173-74, 181-82, 189-90, 197, 202-03, 208-09, 215. STANDARD OF REVIEW To survive a Rule 12(b)(6) 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.'" Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Thus, although the Court assumes all allegations in the Complaint to be true when deciding a Rule 12(b)(6) motion, a plaintiff is required to plead "sufficient factual matter," rather than mere "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678. This standard "'calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the defendant's liability." Chaparro, 693 F.3d at 1337 (quoting Twombly, 550 U.S. at 556). A party must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In a discrimination case, a plaintiff "must provide 'enough factual matter (taken as true) to suggest' intentional . . . discrimination." Davis, 516 F.3d at 974 (quoting Twombly, 550 U.S. at 556). In Iqbal, the Supreme Court set forth a two-pronged approach for federal courts to use when ruling on motions to dismiss. First, a court should distinguish between "legal conclusions" and actual "facts pled in the complaint. Mere "conclusions" are "not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. The Court explained: "While legal conclusions can provide the framework of a complaint, they must be supported by factual assumptions." Id. Second, even when well-pleaded factual allegations are present in the complaint "a court should . . . then determine whether they plausibly give rise to an entitlement to relief." Id. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 5 of 17 28139695 v1 6 ARGUMENT I. Plaintiffs' Complaint Is An Impermissible Shotgun Pleading. As described by the Eleventh Circuit, "[t]he typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, 305 F.3d at 1295. The Eleventh Circuit recognizes that shotgun pleadings: (1) inexorably broaden the scope of discovery, much of which is unnecessary; (2) lessen the time and resources the court has available to reach and dispose of the cases and litigants waiting to be heard; (3) wreak havoc on appellate court dockets; (4) undermine the public's respect for the court - the ability of the courts to process efficiently, economically, and fairly the business placed before them; and (5) in Title VII cases, undercut the purpose of Congress's enactment of Title VII - to bring peace and equity to the workplace. See Davis, 516 F.3d at 981-84. The Complaint here has the same inherent problems as the complaint in Davis, which the Eleventh Circuit admonished as the type of shotgun pleading the Court had "roundly, repeatedly, and consistently condem[ed] for years." 516 F.3d at 979. In Davis, the plaintiffs' complaint contained three counts, with each count apparently being alleged by each of the eight plaintiffs. Id. at 980. The Eleventh Circuit noted the "all-encompassing discrimination [claims] gave the eight named plaintiffs . . . untold causes of action, all bunched together in one count" and "failed explicitly to link a particular plaintiff to a particular cause of action." Id. The second and third counts merely reincorporated the prior allegations, thereby making it nearly impossible to discern "which plaintiff possessed which cause(s) of action." Id. That is exactly the case here. The relevance of many facts alleged in the Complaint is difficult to discern. It is not clear which Plaintiffs allege Title VII versus § 1981 claims or which Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 6 of 17 28139695 v1 7 facts support which claims. These are critical distinctions given many of these claims may be time barred or barred for failure to exhaust administrative remedies depending on which facts support which claims. See Section III, infra. These distinctions are also critical to determining the proper scope of discovery. See Davis, 516 F.3d at 981 (explaining a "shotgun pleading inexorably broadens the scope of discovery, much of which may be unnecessary"). For this reason, Plaintiffs' claims against Mando are due to be dismissed. To the extent any claims remain following a ruling on Mando's Motion to Dismiss, Mando requests Plaintiffs be required to file a more definite statement setting forth the claims alleged by each particular Plaintiff, the particular facts supporting each claim, and the statute or law pursuant to which each claim is brought. II. Plaintiffs Have Failed to Allege Facts Sufficient to Show They Had an Employment Relationship with Mando. Plaintiffs attempt to allege claims against Mando under Title VII, § 1981, Ala. Code § 25-5-11.1, and under Alabama common law. However, Plaintiffs have no basis for these claims against Mando because Mando was never Plaintiffs' employer. Plaintiffs incorrectly allege Daeil "was a subsidiary of Mando" and that "[i]n early 2016, Mando announced that it had purchased Daeil." Doc. 1, ¶¶ 16, 38. However, "courts have recognized that the mere existence of common management and ownership are not sufficient to justify treating a parent corporation and its subsidiary as a single employer." Hegre v. Alberto-Culver USA, Inc., 508 F. Supp. 2d 1320, 1334 (S.D. Ga. 2007) (quoting Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 778 (5th Cir. 1997)), aff'd, 275 F. App'x 873 (11th Cir. 2008). The mere fact Mando allegedly owned Daeil (and Mando certainly does not agree with this alleged fact which is just plain wrong) is insufficient to establish Mando was Plaintiffs' employer, and Plaintiffs' Complaint is devoid of further allegations sufficient to demonstrate a belief that Mando is responsible for the alleged Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 7 of 17 28139695 v1 8 discrimination, retaliation, and other torts.3 See Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1345 (M.D. Fla. 2010) (dismissing corporate entities that were not the plaintiffs' direct employer); Hegre, 508 F. Supp. 2d at 1333 (dismissing the parent corporation of the subsidiary employer in an employment discrimination because "'the mere fact that the subsidiary's chain-of- command ultimately results in the top officers of the subsidiary reporting to the parent corporation does not establish the kind of day-to-day control necessary to establish an interrelation of operations'") (quoting Pearson v. Component Tech. Corp., 247 F.3d 471, 501 (3d Cir. 2001)). Not only have Plaintiffs failed to allege facts sufficient to establish Mando could be considered their employer, but many of the acts complained of occurred before Mando allegedly purchased Daeil in 2016. For example, Plaintiff Andrews alleges he was terminated in 2014, Plaintiff Drake alleges he was terminated in 2014 and not rehired in March 2015, Plaintiff Fanning alleges he was first terminated in 2014, Plaintiff Harris alleges he was not hired in 2013, and Plaintiff Moore alleges she was terminated in 2015. Each of these alleged discriminatory or retaliatory acts occurred before Mando allegedly purchased Daeil, and Plaintiffs allege no facts to demonstrate a belief Mando could be held responsible for these acts. Based on the foregoing, Plaintiffs' claims against Mando are due to be dismissed. III. As Stated in the Complaint, Plaintiffs Have Not Exhausted Their Administrative Remedies and Several of Plaintiffs' Claims are Time Barred. Section 1981 claims in Alabama are subject to either a two year or four year statute of limitations depending on the type of involved conduct. See Barclay v. First Nat’l Bank of Talladega, No. 1:14-cv-01573, 2016 WL 1270519, at *5-6 (N.D. Ala. Mar. 31, 2016). Where a 3 Merely stating Mando was Plaintiffs' employer by virtue of its alleged ownership of Daeil is a "[t]hreadbare recital of the elements of a cause of action" insufficient, without more, to meet the pleading standard of Rule 8 of the Federal Rules of Civil Procedure. See Iqbal, 556 U.S. at 678. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 8 of 17 28139695 v1 9 § 1981 claim is based upon allegations of a failure to promote to a supervisory position with increased pay, duties, or responsibilities, the claim is subject to a two year statute of limitations in Alabama. Id. at *6. Title VII discrimination claims carry the requirement that a plaintiff first exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment practice and that a lawsuit be filed within 90 days after receipt of a notice of right to sue letter. See 42 U.S.C. § 2000e-5(e)(1); Anderson v. Embarq/Sprint, 379 F. App'x 924, 926 (11th Cir. 2010) (holding district court properly dismissed Title VII failure to promote claim for failure to include allegations of failure to promote in EEOC charge). The state law claims alleged by Plaintiffs generally are subject to a two year statute of limitation. See Ala. Code § 6-2-38(l), (n). A. All Plaintiffs Failed to Exhaust Their Administrative Remedies as to Mando, So Their Title VII Claims Cannout Be Brought. A party not named in an EEOC charge of discrimination cannot be named as a defendant in a subsequent suit brought pursuant to Title VII. See Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994); see also 42 U.S.C. § 2000e-5(f)(1) (authorizing a suit "against a respondent named in the charge"). As stated in the Complaint, the April 20, 2014 third-party charge of discrimination was only filed against Daeil. See Doc. 1, ¶¶ 15, 53, 130. The remaining EEOC charges listed in Plaintiffs' Complaint do not state against whom the charges were filed. See Doc. 1, ¶¶ 75, 104, 122. Because Mando was not listed as an employer in any of the purported charges of discrimination filed by Plaintiffs, all of Plaintiffs' Title VII discrimination claims against Mando are due to be dismissed for failure to exhaust administrative remedies. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 9 of 17 28139695 v1 10 B. Even if Mando Had Been Named in the Charges of Discrimination, Several Plaintiffs Still Failed to Exhaust Their Administrative Remedies, or Their Claims are Time Barred. 1. Plaintiff Andrews Plaintiff Andrews alleges he was not considered for two promotions in March and June of 2013 and was terminated on June 2, 2014. See Doc. 1, ¶¶ 50, 55. To the extent he contends these facts support a § 1981 claim, that claim is time barred because the alleged unlawful acts occurred more than two years before the Complaint was filed.4 To the extent he contends these facts support a Title VII claim, that claim is barred because Plaintiff Andrews did not file an EEOC charge within 180 days of the alleged unlawful conduct. 2. Plaintiff Carlisle Plaintiff Carlisle has failed to exhaust her administrative remedies as to all alleged discriminatory acts between September 2015 and January 2016. Plaintiff Carlisle alleges she filed a charge of discrimination on August 14, 2015, but many of the discriminatory acts she alleges, including her January 2016 termination, occurred after this date, and she does not allege she filed an EEOC charge in relation to these acts or that she ever received a notice of right to sue. See Doc. 1, ¶ 75. Thus, to the extent Plaintiff Carlisle contends these facts support a Title VII claim, that claim is due to be dismissed for failure to exhaust administrative remedies. 3. Plaintiff Drake Plaintiff Drake alleges he was not promoted in November and/or December 2013. See Doc. 1, ¶¶ 101-02. To the extent he contends these facts support a § 1981 claim, that claim is time barred because the alleged unlawful acts occurred more than two years before the Complaint was filed. To the extent Plaintiff Drake alleges these facts support a Title VII claim, 4 The Complaint was filed on July 18, 2016. See Doc. 1. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 10 of 17 28139695 v1 11 Plaintiff Drake failed to exhaust his administrative remedies because no EEOC charge was filed within 180 days of the alleged unlawful acts. As for Drake's allegations he was not promoted in August 2014, terminated in August 2014, and not re-hired in March 2015, Plaintiff Drake does not allege he filed a charge of discrimination or received a notice of right to sue in relation to these allegations. See Doc. 1, ¶¶ 103, 106, 109. Thus, to the extent Plaintiff Drake alleges a Title VII claim based on these facts, that claim is due to be dismissed for failure to exhaust administrative remedies. 4. Plaintiff Edwards Plaintiff Edwards alleges she was terminated on June 1, 2016, but no EEOC charge was filed and no notice of right to sue was received in relation to these allegations. See Doc. 1, ¶ 124. Therefore, to the extent Plaintiff Edwards contends these facts support a Title VII claim, that claim is barred because she has failed to exhaust her administrative remedies. 5. Plaintiff Fanning Plaintiff Fanning makes vague allegations regarding multiple failures to promote. See Doc. 1, ¶¶ 128, 132, 137. To the extent these facts arose before July 18, 2014 and to the extent he contends those facts support a § 1981 claim, that claim is time barred. To the extent Plaintiff Fanning contends these facts support a Title VII claim, that claim is barred for failure to exhaust administrative remedies because no EEOC charge was filed within 180 days following the alleged failure to promote. See Doc. 1, ¶ 131-32. Plaintiff Andrew’s Title VII claim for his alleged December 2014 termination is also barred for failure to exhaust administrative remedies, as no EEOC charge was filed in relation to his termination. See Doc. 1, ¶ 142. Plaintiff Fanning further alleges he was rehired through a temp agency and then terminated in March 2016. See Doc. 1, ¶¶ 143-44. To the extent Plaintiff Fanning alleges this termination supports a Title VII Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 11 of 17 28139695 v1 12 claim, he has failed to exhaust his administrative remedies because he has not filed a charge of discrimination in relation to this termination. 6. Plaintiff Harris Plaintiff Harris alleges he was not hired in April 2013, August 2014, February 2014, February 2015, and March 2015. See Doc. 1, ¶¶ 147, 151, 153. To the extent Plaintiff Harris alleges a § 1981 claim based on the failures to hire in April 2013 and February 2014, that claim is time barred because it occurred more than two years before the Complaint was filed. To the extent Plaintiff Harris alleges the failures to hire in April 2013, August 2014, February 2015, and March 2015 support a Title VII claim, he has failed to exhaust his administrative remedies because no charge of discrimination was filed and no notice of right to sue was received in relation to these alleged failures to hire. 7. Plaintiff Moore Plaintiff Moore alleges she was terminated on April 27, 2015. See Doc. 1, ¶ 162. Plaintiff Moore does not allege she ever filed a charge of discrimination or was ever named as a charging party. Thus, to the extent she alleges her termination supports a Title VII claim, she has failed to exhaust her administrative remedies because no charge was filed within 180 days. IV. Plaintiffs Fail to State a Claim for National Origin Discrimination. In Count Two of the Complaint, Plaintiffs purport to allege a claim for "national origin discrimination," but they do not set forth any statute pursuant to which they are attempting to bring this claim or the basis of any such claim. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff "give the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (citation omitted). By failing to set forth the statute pursuant to which Plaintiffs bring their national origin claim, Plaintiffs have failed to meet the Rule 8(a)(2) pleading requirements. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 12 of 17 28139695 v1 13 V. Plaintiffs Fail to State a Claim for Retaliation Pursuant to Ala. Code § 25-5-11.1. Pursuant to Alabama Code § 25-5-11.1, "[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11." Ala. Code § 25-5-11.1 (emphasis added). In order to state a retaliatory discharge claim pursuant to the first half of Alabama Code § 25-5-11.1, a plaintiff must show: "1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim." Ala. Power Co. v. Aldridge, 854 So. 2d 554, 563 (Ala. 2002) (emphasis added). An employee alleging a claim pursuant to the second half of § 25-5-11.1 "'must prove that his employment was terminated solely because he gave notice of safety violations.'" Washington v. Lane, No. 93- 0202, 1994 U.S. Dist. LEXIS 11190, at *36 n.12 (S.D. Ala. June 30, 1994) (emphasis added) (quoting Morgan v. Ne. Ala. Reg'l Med. Ctr., 624 So. 2d 560, 563 (Ala. 1993)). While Count Three of the Complaint references "Plaintiffs," Plaintiff Carlisle is the only Plaintiff who attempts to allege facts supporting a § 25-5-11.1 claim, but she fails to do so. Plaintiff Carlisle nowhere alleges she pursued a workers' compensation claim, that she was terminated solely because she filed a workers' compensation claim, or that she was terminated solely for filing a written notice of a violation of a safety rule pursuant to Alabama Code § 25-5- 11(c)(4). She merely asserts she made a complaint to OSHA, but she does not allege that she filed any written complaint with Mando or that Mando had knowledge of any such OSHA complaint, much less that Mando had knowledge of who made any such OSHA complaint. And in any event, making a complaint to OSHA does not show she suffered an on the job injury or Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 13 of 17 28139695 v1 14 was discharged because she pursued a claim for workers' compensation benefits. Accordingly, Plaintiffs, including Plaintiff Carlisle, have failed to state a claim for retaliation under Alabama Code § 25-5-11.1. VI. Plaintiffs Fail to State a Claim for Intentional Infliction of Emotional Distress. Intentional infliction of emotional distress, also known as outrage,5 "is 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); see also Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). For this reason, the Alabama Supreme Court has recognized such claims only in three circumstances: "cases having to do with wrongful conduct in the context of family burials; cases where insurance agents employed heavy-handed, barbaric means to coerce a settlement; and cases involving egregious sexual harassment." Carter v. Harris, 64 F. Supp. 2d 1182, 1194 (M.D. Ala. 1999); see also Short v. Mando Am. 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." Id.; see also Walker v. ITT Educ. Servs., Inc., No. 2:12-cv-1819, 2013 WL 979087, at *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.") (citations omitted). Plaintiffs' intentional infliction of emotional distress claim is purportedly based on allegations of discrimination, harassment, and a hostile work environment. None of these facts, 5 Miller v. Home Depot USA, Inc., No. 2:12-cv-03769, 2013 WL 987941, at *3 (N.D. Ala. Mar. 11, 2013). Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 14 of 17 28139695 v1 15 even if proven true, are sufficient to give rise to a claim for intentional infliction of emotional distress in Alabama. VII. Plaintiffs Fail to State a Claim for Assault and Battery Against Mando. "For an employer to be held liable for the intentional torts of its agent, the plaintiff must offer evidence (1) that the agent's wrongful acts were committed in the line and scope of the agent's employment; or (2) that the acts were committed in furtherance of the business of the employer; or (3) that the employer participated in, authorized, or ratified the wrongful acts." Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885, 889 (Ala. 1995). The Alabama Supreme Court has held "assault and battery by an employee is purely personal and outside the line and scope of his employment." Portera v. Winn Dixie of Montgomery, Inc., 996 F. Supp. 1418, 1437 (M.D. Ala. 1998). Thus, an employer can only be liable for an assault or battery by its employee if the employer participated in, authorized, or ratified the wrongful act. See id. Ratification occurs only where the employer (1) "had actual knowledge of the tortious conduct of the offending employee" (2) "knew, or should have known, that such conduct constituted . . . a tort;" and (3) "failed to take adequate steps to remedy the situation." Id. (citing Mardis, 669 So. 2d at 889). Once again, Count Eight references "Plaintiffs," but it is only based upon facts alleged by Plaintiff Carlisle. Plaintiff Carlisle's claim for assault and battery is based upon the alleged conduct of Sung Kem, but Plaintiff Carlisle does not allege facts which, if proven, would show Kem was an employee of Mando or that Mando (1) had knowledge of the alleged conduct of Kem, (2) knew or should have known Kem's alleged conduct constituted a tort, or (3) failed to take steps to remedy the situation. Plaintiff Carlisle has, therefore, failed to state a claim against Mando for assault and battery. Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 15 of 17 28139695 v1 16 VIII. Plaintiffs Fail to State a Claim for Negligent Hiring, Training, Supervision and Retention. To be actionable, Plaintiffs' negligence claim against Mando must be supported by an underlying tort recognized by Alabama law and committed by a Mando employee. See Stevenson v. Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 2000). Where the claim for the underlying tortious conduct of the employee fails as a matter of law, so does the negligent hiring, training, supervision, and retention claim. Smith v. Boyd Bros. Transp., Inc., 406 F. Supp. 2d 1238, 1248 (M.D. Ala. 2005). As explained in Sections VI and VII, supra, Plaintiffs' claims for intentional infliction of emotional distress and assault and battery fail as a matter of law. To the extent Plaintiffs base their negligence claim on alleged discrimination, "Alabama law does not recognize an independent action of negligence for employment discrimination." Miller v. Home Depot USA, Inc., 2013 WL 987941, at *3; see also Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002). Assuming, for purposes of argument only, Plaintiff's negligence theories purport to rest on the underlying tort of "harassment," harassment is not a recognized separate tort under Alabama law. Thrasher, 195 F. Supp. 2d at 1320 n.3; see also Kelley v. Wal- Mart Stores E., L.P., No. 12-544, 2013 WL 608030, at *4 (S.D. Ala. Feb. 19, 2013). Because Plaintiffs have failed to allege underlying tortious conduct committed by a Mando employee, their claim against Mando for negligent hiring, training, supervision, and retention fails as a matter of law. CONCLUSION WHEREFORE, PREMISES CONSIDERED, Defendant Mando respectfully requests this Honorable Court dismiss Plaintiffs' claims against Mando pursuant to Rule 12(b)(6) of the Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 16 of 17 28139695 v1 17 Federal Rules of Civil Procedure. To the extent any claims remain following an order on this Motion, Defendant Mando requests Plaintiffs be required to file a more definite statement. Respectfully submitted, s/ Ingu Hwang Michael L. Lucas Ingu Hwang Attorneys for Defendant MANDO AMERICA CORPORATION OF COUNSEL: BURR & FORMAN LLP 420 North 20th Street, Suite 3400 Birmingham, Alabama 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document by Notice of Electronic Filing, or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail on this the 19th day of September, 2016: Valerie Hicks Powe 3900 Montclair Road Unit 130637 Birmingham, Alabama 35213 s/ Ingu Hwang OF COUNSEL Case 3:16-cv-00582-TFM Document 7 Filed 09/19/16 Page 17 of 17