McCreight v. AuburnBank
| Decision Date | 04 March 2020 |
| Docket Number | CASE NO. 2:19-cv-865-ALB |
| Citation | 611 F.Supp.3d 1336 |
| Parties | Julia MCCREIGHT and Rebecca Wester, Plaintiffs, v. AUBURNBANK ; Auburn National Bancorporation, Inc.; and Michael King, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Alicia Kay Haynes, Haynes & Haynes, PC, Birmingham, AL, Brian Noble, Haynes & Haynes PC, Vestavia, AL, for Plaintiffs.
Christina Marie Rossi, Balch & Bingham LLP, Birmingham, AL, Jordan Dorman Walker, Jr., Balch & Bingham LLP, Montgomery, AL, for Defendants.
This matter comes before the Court on motion by AuburnBank, Auburn National Bancorporation Inc., and Michael King ("Defendants") to dismiss the claims brought against them by Julia McCreight and Rebecca Wester ("Plaintiffs"). (Doc. 17 at 4-11). Although Plaintiffs allege seven total counts in their complaint, Defendants move to dismiss only Counts IV (intentional infliction of emotional distress), V (invasion of privacy), VI (tortious interference with contractual relations), and VII (negligent and wanton hiring). (Doc. 13 at 27-38). Upon consideration, Defendants' motion is due to be GRANTED in part and DENIED in part.
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
The following allegations are taken from the complaint and will be taken as true for the purposes of this order.
Julia McCreight and Rebecca Wester are women over the age of sixty who were each employed by AuburnBank in Auburn, Alabama as mortgage originators for over twenty years. Within the last two years, both women were terminated. Plaintiffs allege that their termination was due to the bigotry of Michael King, a Senior Vice President of Mortgage Lending, whom AuburnBank hired in late 2017. Plaintiffs allege that King subjected them to treatment that he did not subject younger employees to, including arbitrary threats to "fire them on the spot" and openly spoke about his preference to hire young mortgage originators. In November of 2017, McCreight complained about this behavior to AuburnBank's human resources department and the bank's president, but no investigation took place.
Plaintiffs further allege that the bank hired Jamie McConnell, Barry Bryant and Blake Otwell as loan originators. At the time of hiring, Jamie McConnell was unqualified to work as a loan originator. Otwell and Bryant were subjected to no discipline despite disastrous loan errors and low origination numbers. McCreight was the most profitable originator working for the bank, with over $17 million in loans originated in 2017 alone. McCreight was fired in May of 2018 on the grounds that a customer was upset that his loan had been cancelled by the underwriters. McCreight avers that she was not responsible for this error and that it was a pretext for King to fire her for being old. McCreight was subsequently escorted from the building by Auburn police officers.
Wester alleges that the human resource department told her that she was too slow, was making too many typographical errors, and couldn't keep up with incoming documents despite receiving consistently excellent performance reviews for the preceding 20 years. Wester was placed on probation twice with no warning and repeatedly accused of working too slowly. Wester asked for a lateral transfer and was told that she would receive one, only to be fired later that week. The reason given for the firing was that she had failed to verify a customer's employment prior to closing the loan. However, McCreight had taken two pre-approved and scheduled vacation days to have medical testing completed and had asked two other employees to complete this task. They failed to do so.
Plaintiffs' allegations are insufficient to make out a claim on two of the four counts at issue. Plaintiffs do not allege behavior that was sufficiently outrageous and have failed to plead interference in a contractual relationship.
Plaintiffs allege that they were subjected to conduct so outrageous that it qualifies as an intentional infliction of emotional distress. Defendants cite Little v. Robinson , 72 So. 3d 1168, 1171-72 (Ala. 2011) for the proposition that this tort has been tightly circumscribed by the Supreme Court of Alabama. Plaintiffs respond that the tort has been recognized in the employment context and cite Lees v. Sea Breeze Health Center , 391 F. Supp. 2d 1103, 1107 (S.D. Ala. 2005) for the proposition that the true test of whether something is outrageous is whether it was done in contravention of public policy.
In Alabama, the tort of intentional infliction of emotional distress is referred to as "outrage." There is a tripartite test to determine whether something outrageous has occurred. "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, 72 So. 3d at 1172. In Little the court opined that, although the tort is not explicitly cabined to those three categories, the action in question needs to be at least as outrage-inducing as "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. (). The bottom line is that this tort is viable "only when the conduct is 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." Id.
Attempts to further refine this test in the context of employee termination have resulted in a two-step process: 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) (). However, this test has occasionally enjoyed a somewhat flexible application. The Southern District of Alabama has held in two instances that any pattern of discriminatory conduct that violates public policy—and this Court is unable to think of any pattern that would not—is cognizable as an outrage claim if it culminates in termination. See Hall v. Infirmary Health Sys. , 2007 WL 772560, at *7 (S.D. Ala. Mar. 8, 2007) (); see also Lees , 391 F. Supp. 2d at 1108 (). In these cases, the court collapsed the two-step test into one, holding that "the violation of public policy furnishes the requisite ‘sound of fury’ to accompany the termination."1 Id. In the Southern District's view, the pattern of misconduct need not even be discrimination based on an immutable characteristic, just a "violation of public policy."
This Court declines to follow the Southern District of Alabama in holding that any pattern of discrimination can support a claim of outrage. To do so would be to recognize a freestanding common-law anti-discrimination claim, which is inconsistent with how the Alabama state courts have treated the tort of outrage. Unlike the Southern District, the Supreme Court of Alabama has taken special care to accentuate the extreme nature of the tort of outrage. See Gibbs v. Aetna Cas. & Sur. Co. , 604 So. 2d 414, 415 (Ala. 1992) (). The Southern District's approach, on the other hand, means there is no "garden variety" discrimination claim because every discrimination claim would come with an automatic outrage claim. See Ritchey v. S. Nuclear Operating Co., Inc. , 2008 WL 11342662, at *2 (N.D. Ala. Feb. 14, 2008) (). And this result would directly contradict the requirement of the Supreme Court of Alabama that the tort be cognizable "only in the...
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