Ferrari v. D R Horton Inc, No. 2:2014cv01941 - Document 219 (N.D. Ala. 2017)

Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/3/2017. (PSM)
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Ferrari v. D R Horton Inc Doc. 219 FILED 2017 Feb-03 PM 03:30 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION PETER J. FERRARI, Plaint if f, vs. D.R. HORTON, INC.BIRMINGHAM, Defendant . ) ) ) ) ) ) ) ) ) 2: 14-cv-01941-LSC MEMORANDUM OF OPINION Before t he Court is Defendant D.R. Hort on, Inc. -Birmingham’ s (“ Hort on’ s” ) Mot ion f or Part ial Summary Judgment 1 (Doc. 162), as well as Plaint if f Pet er J. Ferrari’ s (“ Ferrari’ s” ) Mot ion f or Summary Judgment (Doc. 172). Also before t he Court are Hort on’ s t wo Mot ions t o St rike. (Docs. 188 and 190.) Ferrari brought t his act ion assert ing ret aliat ion under 42 U.S.C. § 2000e, et seq. (“ Tit le VII” ), and Alabama st at e common law claims for (1) negligent / want on hiring, t raining, supervision and/ or ret ent ion, (2) invasion of privacy and (3) int ent ional inflict ion of emot ional dist ress/ out rage. Hort on filed count erclaims for Alabama st at e common law breach of fiduciary dut y and dut y of loyalt y, int ent ional 1 Hort on moves for summary j udgment on all Plaint iff ’ s claims and for part ial summary j udgment on it s own count erclaims. Page 1 of 38 Dockets.Justia.com int erference wit h prospect ive economic advant age, unj ust enrichment , and fait hless servant liabilit y. Hort on also filed claims under Alabama st at ut es for fraud by misrepresent at ion of mat erial f act s under Ala. Code § 6-5-101, fraud t hrough suppression of mat erial f act s under Ala. Code § 6-5-102, violat ions of t he Alabama Trade Secret s Act (“ ATSA” ), and fraudulent deceit under Ala. Code § 6-5-104. For t he reasons st at ed below, Ferrari’ s Mot ion f or Summary Judgment is due t o be denied. Hort on’ s Mot ion for Summary Judgment is due t o be denied in part and grant ed in part . Hort on’ s Mot ions t o St rike are due t o be denied as moot . I. BACKGROUND Ferrari was employed by Hort on, a company in t he business of home building, as a land acquisit ion manager in charge of obt aining t he best deals and t erms f or land purchases t hat he could for Hort on. (Ferrari Dep. at 40-1, Whit ehurst Dep. at 72. ) He was neit her an of ficer nor a direct or and did not have t he power t o bind t he company t o any cont ract — land all purchases had t o be approved by Hort on management in Texas. (Whit ehurst Dep. at 72, 102-03. ) All land purchase cont ract s also had due-diligence provisions t hat allowed Hort on t o cancel t he deals for any reason up unt il t he t ime of closing. (Id. at 103, 127.) Hort on somet imes Page 2 of 38 used t his provision t o “ ret rade” t ransact ions, or t hreat en t o walk away from a deal unless t he price was renegot iat ed. (Id. at 158-59. ) While working for Hort on, Ferrari also did t he same kind of work for D.R. Hort on, Inc. (“ DHI” ), a separat e ent it y. (Whit ehurst Dep. at 310-12, Gill Dep. at 115.) Hort on does not operat e in Florida, and DHI does not operat e in Alabama. (Whit ehurst Dep. at 26.) Hort on paid Ferrari for his work wit h bot h Hort on and DHI. (Whit ehurst Dep. at 310-12. ) According t o Scot t Whit ehurst (“ Whit ehurst ” ), Ferrari’ s supervisor at Hort on, t his compensat ion was “ allocat [ed] ” bet ween Hort on and DHI int ernally. (Id.) A. Alleged Conf lict s of Int erest On November 9, 2009, Ferrari received and signed Hort on’ s Employee Personnel Policy Guidelines (“ t he handbook” ), which among ot her t hings, defined prohibit ed conflict s of int erest . (Ferrari Dep. at 173-75, Ex. 20.) The handbook specifically st at ed: Employees and t heir immediat e f amilies are not t o solicit , accept or ret ain a personal benefit from any . . . individual or organizat ion doing or seeking t o do business wit h t he Company, or from any ot her individual or organizat ion. In t his cont ext , a personal benefit is regarded as any t ype of discount for services performed, gift , grat uit y, f avor, service, loan . . . fee or compensat ion or anyt hing of monet ary value. (Id. at Ex. 20.) Page 3 of 38 On May 20, 2010, Ferrari and/ or his wife Kimberly Ferrari (“ Kimberly” ) f ormed Prince 5 Holdings, LLC (“ Prince 5” ), and on January 18, 2011, t hey formed P6 Holdings, LLC (“ P6” ). (Kimberly Dep. at Ex. 1 & 8.) These ent it ies were owned by Ferrari and Kimberly, t hough exact ly which one of t hem formed, owned, and cont rolled t he funds in t he ent it ies is in disput e. Hort on alleges t hat Ferrari involved Brad Zeit lin (“ Zeit lin” ), a friend of Ferrari’ s who did not work for Hort on, in land deals in Mississippi even aft er Whit ehurst specifically direct ed him not t o. However, Ferrari claims t hat Whit ehurst t old him t o get Zeit lin involved in t he Mississippi deals, because Whit ehurst was afraid of increased compet it ion in t he market if Hort on’ s int erest in t he propert ies became public knowledge. (Ferrari Dep. at 121-22.) Hort on also insist s— and Ferrari denies— hat Ferrari lied t t o Hort on about Zeit lin’ s involvement in land deals. However, it is undisput ed t hat Ferrari spoke t o Zeit lin and Pet e Bart on (“ Bart on” ), who worked wit h Zeit lin, about possible deals f or Hort on, discussing informat ion about “ school dist rict , lot size, building pad size, overall locat ion, rest rict ive covenant s for design guidelines f or building homes, pot ent ial price range, [as well as] ot her t erms . . . t hat would have been Page 4 of 38 relevant , approximat e deals, environment al considerat ions, ent it lement , [and] development considerat ions.” (Ferrari Dep. at 131-32.) Zeit lin conduct ed business as a member or aut horized part y t hrough a number of LLCs, including Terra Capit al Management (“ Terra” ), Woodf ord Advisory, LLC (“ Woodf ord” ), New Orchard Advisory, LLC (“ Orchard” ), Nog Development Services, LLC (“ Nog” ), Einst ein Vent ures, LLC (“ Einst en” ), and TZMZ Holdings, LLC (“ TZMZ” ). (Zeit lin Dep. at 7-8, 24, 59, 60-1.) These ent it ies would “ f lip” propert ies t o Hort on or DHI by buying t he land and t hen selling it a few hours or days lat er at a subst ant ially higher price. (Cummings Dep. at Ex. A. ) Ferrari denies t hat Hort on could have purchased t hese propert ies at a lower price if Zeit lin had not been involved. (Whit ehurst at 123, 175.) While Ferrari was working at Hort on, Zeit lin issued several checks amount ing t o a subst ant ial sum, made payable t o Prince 5. (Zeit lin Dep. at 38-52.) Zeit lin t est ified t hat t he funds were int ended t o reward Ferrari for int roducing him t o Hort on by giving him a share in t he value of his t ransact ions wit h Hort on. Ferrari, however, claims t hat t he funds were “ gift s” bet ween friends, and denies t hat t hey were kickbacks relat ed t o sales of land by Zeit lin t o Hort on. (Ferrari Dep. at 74. ) Page 5 of 38 P6 also received money from f ormer Hort on employee Kenny Smit h (“ Smit h” ) and Cogent Building Group, allegedly as a “ finder’ s fee” for int roducing Smit h t o Zeit lin, who t hen allowed Smit h t o be involved in building houses in Dest in, Florida. (Smit h Dep. at 44-7. ) Furt her, Prince 5 and P6 sent funds t o Zeit lin and Zeit lin-relat ed ent it ies while Ferrari was employed at Hort on. (Zeit lin Dep. at 97, 101, 105.) Ferrari claims t hat Hort on CEO David Auld (“ Auld” ) knew about t his conduct in 2012 and asked Whit ehurst t o look int o it mont hs bef ore Ferrari was t erminat ed. (Auld Dep. at 10-1, 26. ) Thus, Ferrari claims, Hort on did not t ake act ion based on t he report s of misconduct unt il aft er Ferrari complained t o Whit ehurst about sexual harassment . However, Hort on provides t est imony t hat t he 2012 invest igat ion did not result in any finding of misconduct , and argues t hat t his was because of Ferrari’ s concealment of his act ions. Hort on maint ains t hat immediat ely aft er receiving more report s about Ferrari’ s alleged fraud, it init iat ed an invest igat ion, beginning wit h a meet ing bet ween Whit ehurst and Hort on represent at ives Paula Hunt er-Perkins (“ Perkins” ) and Rachel Dequat t ro (“ Dequat t ro” ) on July 9, 2013. (Id. at 45-7, Ex. 2, Dequat t ro Dep. at 20. ) Even t hen, Ferrari, who was present at t he meet ing, did not disclose t he Page 6 of 38 payment s from Zeit lin-relat ed ent it ies t o Prince 5 and P6. (Ferrari Dep. at 94-5.) Aft er t his meet ing, on July 9 or 10, 2013, Ferrari was suspended and was subsequent ly t erminat ed on July 31, 2013, based on a j oint decision by Whit ehurst , Auld, Perkins, and Mike Shet t erly, Hort on’ s at t orney. (Ferrari Dep. at 206-07.) Hort on claims t hat Ferrari was t erminat ed because of “ f ailure t o follow clear inst ruct ion[, ]. . . conflict of int erest [,]. . . false informat ion provided in an invest igat ion[,] . . . refu[sal] t o cooperat e wit h invest igat ion[, and] . . . insubordinat ion.” (Whit ehurst Dec. Ex. D. ) However, Ferrari claims t hat he was never informed about “ t he precise nat ure of any allegat ions against him.” (Doc. 180 at 10-11.) B. Alleged Sexual Harassment Ferrari alleges t hat he suf fered sexual harassment while employed at Hort on, in t he f orm of t he following conduct : 1) Ferrari received a January 23, 2010 email from Jef f Dequat t ro— Dequat t ro’ s t hen-husband, who was not a Hort on employee— which cont ained a pict ure of Dequat t ro riding a mechanical bull. (Ferrari Dep. at 190-93, Ex. 21.) Page 7 of 38 2) Ferrari received a February 12, 2012 email from Jef f A. Marzello— one of Ferrari’ s subordinat es— at ing “ I also want a blow j ob from st Paris Hilt on. ” (Def. Ex. 22.) 3) Ferrari received a November 27, 2012 email from Dequat t ro in which she said “ I will f-----g REMEMBER t o do t his.” (Id. ) 4) Ferrari received a November 28, 2012 email from Dequat t ro which st at ed “ [Aww!] I needed t hat , my head is about t o explode.” This email was in response t o Ferrari’ s email which said “ You’ re t he t erminat or.” (Id. ) 5) Ferrari received a December 12, 2012 email and a March 14, 2013 email from Dequat t ro in which she said “ Love ya. ” (Id.) 6) Ferrari received a May 22, 2013 email from Shane H. Ikerman (“ Ikerman” ) in which he said “ lol B---h.” This email was a reply t o Ferrari’ s email which st at ed “ Neeener neeeener neeeener.” (Id.) 7) Ferrari received a May 30, 2013 email from Dequat t ro in which she called him “ dear.” (Id.) 8) Ferrari received an email from Dequat t ro wit h a pict ure of a man in his underwear and a comment about t he pict ure. (Ferrari Dep. at 114-15.) Page 8 of 38 9) Ferrari received an email from Dequat t ro wit h a link t o a “ Mormon sex sit e or somet hing like t hat .” (Id. ) 10) Ferrari was subj ect ed t o Will Moody’ s (“ Moody” ) “ insinuat ions t hat [Ferrari] was a homosexual, his put t ing up on [Ferrari’ s] cork board in [Ferrari’ s] of fice a pict ure of a lit t le Chihuahua wit h big t est icles in order t o embarrass [ Ferrari] in t he company, [ Moody’ s] pict ures t hat he would forward t o colleague’ s phones . . . t hat insult ed [Ferrari] for [his] height . ” (Id. at 106.) This incident allegedly occurred on March 31, 2012. (Def. Ex. 19 at P0181. ) 11) Ferrari was subj ect ed t o conversat ions in which Dequat t ro “ corner[ed] [Ferrari] in [his] of fice on mult iple occasions and . . . graphically describe[d] such t hings as her breast augment at ion and rub[bed] her body so as t o illust rat e t o [Ferrari] where incisions were made, where bruising occurred, what complicat ions she had . . . as she was fondling herself t o illust rat e.” (Ferrari Dep. at 198. ) At least one of t hese incident s occurred on July 15, 2010. (Def. Ex. 19 at P0174. ) 12) Ferrari wit nessed Auld rubbing Dequat t ro’ s shoulders at a business dinner and Dequat t ro subsequent ly discussed it wit h Ferrari, asking if “ it look[ed] like [she] was giving David BJs t o get a promot ion.” Page 9 of 38 (Ferrari Dep. at 117-18.) Hort on provides email evidence t hat t his dinner occurred on February 17, 2010. (Whit ehurst Dec. Ex. G.) 13) Ferrari wit nessed Dequat t ro’ s discussions about “ how she t aught her daught er . . . how t o give oral sex replet e wit h hand gest ures and mout h gest ures, ” and “ her preference for anal sex, ” and how “ it of fended her sensibilit ies t hat aft er anal sex [a boyfriend] want ed her t o give him oral sex.” (Ferrari Dep. at 198-99. ) 14) Ferrari wit nessed Dequat t ro and Cassie Kropp (“ Kropp” ), who was anot her Hort on employee, discussing “ t he f act t hat Scot t [Whit ehurst ] has a small penis, [his wife] does not like t o have sex wit h him and he is a one minut e wonder.” (Id. at 199.) 15) Ferrari wit nessed Ikerman’ s recount ing of conversat ions wit h Dequat t ro about “ her need, her want for cert ain male body part s. ” (Id. at 199-200.) 16) Ferrari was subj ect ed t o Dequat t ro’ s showing him and Whit ehurst an image of “ a broken shower glass where her daught er had broken t he glass . . . from having sex wit h her boyfriend,” and Whit ehurst “ t rac[ing] t he out line of [t he daught er’ s] backside on t he shower glass and ma[king] a disgust ing comment about it .” (Id. at 200.) Page 10 of 38 17) Ferrari was subj ect ed t o Kropp’ s “ t ouching [him] inappropriat ely wit h great frequency, lift ing [his] shirt , using t he nat ure of t he clot h of [his] shirt t o t ouch [his] arms, describing discussions . . . wit h . . . Dequat t ro about [him] in compromised sit uat ions, ” and “ cornering [Ferrari] . . . and t elling [ him] t hat she want ed t o have sexual relat ions wit h [him] . . . wit h [his] wife in earshot . ” (Id. at 200-01.) 18) Ferrari was subj ect ed t o Kropp’ s comment ing about her sexual habit s, including “ descript ions of her body when she was t eaching aerobics and what she could do wit h t hat body, descript ions . . . of her hyst erect omy and what it did t o her privat e part s . . . [and] of sexual relat ions she had wit h someone in a wheelchair. ” (Id. at 201. ) 19) Ferrari was subj ect ed t o Ikerman’ s inappropriat e conduct , including “ t elling [ Ferrari] t hat [he] needed t o obt ain sexual f avors from [his] wife, ” on August 12, 2010, “ [ m] aking overt ly sexual movement s against female colleagues in [his] presence” on April 24, 2010, and “ showing [ Ferrari] emails from his D.R. Hort on email where he was asking his wife for sexual f avors” on May 25, 2011. (Id., Def. Ex. 19 at P0173, 175, 180.) Page 11 of 38 20) Ferrari wit nessed Whit ehurst ’ s vulgar st at ement s during management meet ings, including explaining a vulgar act , discussing gonorrhea, and using frequent prof anit y wit h sexual meanings. (Ferrari Dep. at 202-03. ) At least some of t hese comment s occurred at a January 18, 2012 meet ing. (Def. Ex. 19. at P0181.) 21) Ferrari wit nessed Whit ehurst st at ing “ what HR, t here is no HR.” (Ferrari Dep. at 202-03.) 22) Ferrari wit nessed discussions by D.R. Hort on employees Auld and Don Tomnit z (“ Tomnit z” ) at a business dinner “ about how t heir wives would not have sexual relat ions wit h t hem . . . [and] t he fact t hat [t hey] had t o have t heir needs serviced elsewhere.” (Id. at 196. ) Hort on present s email evidence t hat t his dinner t ook place February 7 or 8, 2012. (Dequat t ro Dec. Ex. B. ) 23) Ferrari was subj ect ed t o Hort on employee Donnie Long’ s showing him a pornographic video at a Hort on event in 2010 or 2011. According t o Ikerman, when he spoke t o Ferrari about t he video, Ferrari “ said t hat t he video was gross, and [] was laughing about it , and [ ] t old [him] t hat [he] needed t o go see it .” (Ikerman Dep. at 22-3.) Ikerman furt her st at es t hat when he asked Ferrari if he was Page 12 of 38 okay, Ferrari said “ yes, j ust remind me not t o wat ch anyt hing on Donnie’ s phone again. ” (Id). However, despit e t his environment , Ferrari admit s he never filed a report wit h Hort on or DHI’ s Human Resources Depart ment , did not call t he anonymous hot line t hat Hort on provided, did not respond t o any of t he emails wit h a complaint about t heir profane cont ent , and did not ever t ell anyone t o st op behaving in such a manner. (Ferrari Dep. at 11213.) Inst ead, he replied t o some emails, which he claims were “ harassing,” wit h comment s such as “ ha ha ha” or “ LMAO.” (Id. at 112.) Furt her, when Ferrari met wit h Whit ehurst , Perkins and Dequat t ro on July 9, 2013, he did not t ell Perkins, who was t he Vice President of Human Resources, about t he conduct . (Id. at 108. ) Yet , Ferrari charges t hat his colleagues should have known he was displeased wit h t he “ harassing” conduct because he react ed by “ virt ually wincing, t urning and walking away, ignoring t he person who was speaking, [ and] coming back at a lat er t ime.” (Id. at 204.) He insist s t hat t hese were some of t he “ many indicat ions given . . . t o illust rat e [his] discomfort , ” and t hat he “ complained verbally” t o Dequat t ro on an unspecified dat e, Ikerman on May 22, 2013, and Whit ehurst in FebruaryMay 2013. (Id. at 204, 348-49, Def . Ex. 19 at P0169, Pl. Ex. 4 at 4-6. ) Page 13 of 38 On January 27, 2010, Ferrari sent an email t o prospect ive real est at e developer Nat han Cox (“ Cox” ) which included insult s, profanit y, sexual references, and a t hreat ing reference about “ breaking [individuals] like [Cox] over [his] knee. ” (Id. at 99, Ex. 5.) He also made a comment about “ cracking Will Moody’ s head like a [f-----g] coconut ,” and when quest ioned about t hat e-mail, admit t ed t hat “ [a] prof ane word is not necessarily adult cont ent which is not necessarily sexual . . . harassment .” (Id. at 113. ) Ferrari was disciplined for sending t his email. Ferrari filed an EEOC charge of discriminat ion on January 23, 2014— almost six mont hs aft er his t erminat ion from Hort on on July 31, 2013— alleging ret aliat ion f or his verbal complaint s about sexual harassment . (Doc. 1 Ex. 2.) II. STANDARD OF REVIEW Summary j udgment is appropriat e “ if t he movant shows t hat t here is no genuine disput e as t o any mat erial f act and t he movant is ent it led t o j udgment as a mat t er of law.” Fed. R. Civ. P. 56(a). A f act is “ mat erial” if it “ might af fect t he out come of t he suit under t he governing law.” Anderson v. Libert y Lobby, Inc., 477 U.S. 242, 248 (1986). There is a “ genuine disput e” as t o a mat erial fact “ if t he evidence is such t hat a reasonable j ury could ret urn a verdict for t he nonmoving part y. ” Page 14 of 38 Anderson, 477 U.S. at 248. The t rial j udge should not weigh t he evidence but must simply det ermine whet her t here are any genuine issues t hat should be resolved at t rial. Id. at 249. In considering a mot ion for summary j udgment , t rial court s must give deference t o t he nonmoving part y by “ considering all of t he evidence and t he inferences it may yield in t he light most f avorable t o t he nonmoving part y. ” McGee v. Sent i nel Of f ender Servs., LLC, 719 F.3d 1236, 1242 (11t h Cir. 2013) (cit at ions omit t ed). In making a mot ion f or summary j udgment , “ t he moving part y has t he burden of eit her negat ing an essent ial element of t he nonmoving part y’ s case or showing t hat t here is no evidence t o prove a f act necessary t o t he nonmoving part y’ s case. ” Id. Alt hough t he t rial court s must use caut ion when grant ing mot ions for summary j udgment , “ [ s]ummary j udgment procedure is properly regarded not as a disf avored procedural short cut , but rat her as an int egral part of t he Federal Rules as a whole. ” Cel ot ex Corp. v. Cat ret t , 477 U.S. 317, 327 (1986). III. DISCUSSION A. Hort on’ s St anding t o Bring Count erclaims As an init ial mat t er, Ferrari moved f or summary j udgment on all claims based on deals for land in Florida, alleging t hat Hort on “ is not t he Page 15 of 38 proper part y, has no st anding, and cannot st at e a cause of act ion as t o Florida t ransact ions” because Hort on “ is legally prohibit ed from disregarding t he corporat e exist ence of DHI and t reat ing DHI’ s purport ed damages as it s own.” (Doc. 173 at 7.) Ferrari bases t his argument on t he undisput ed fact t hat Hort on did not operat e in Florida and t hat Hort on and DHI allocat ed Ferrari’ s compensat ion int ernally. According t o Ferrari, since Hort on did not operat e in Florida, he is liable only t o DHI for his act ions relat ed t o land in Florida. However, Ferrari does not disput e t hat he received all his compensat ion from Hort on and was employed solely by Hort on, even while he was involved in t he Florida t ransact ions. Hort on alleges t hat Ferrari is liable for conduct t hat violat ed t he dut ies of t he employment cont ract he had wit h Hort on even if some of t he damages were suf fered by DHI, a separat e ent it y. Whet her a part y has st anding is a procedural quest ion, which will be answered by referencing federal law. See E. F. Hut t on & Co., Inc. v. Hadl ey, 901 F. 2d 979, 984 (11t h Cir. 1990). In order t o have st anding t o bring a claim in federal court , a plaint iff must show t hat (1) it suffered an inj ury in fact (2) t he inj ury is t raceable t o t he challenged conduct of t he defendant and (3) t he inj ury will likely be redressed by a favorable ruling. Luj an v. Def enders of Wil dl if e, 504 U.S. 555, 560-61 (1992). The Court is Page 16 of 38 concerned t hat Hort on may not have st anding t o recover some of t he damages it seems t o claim. However, Hort on does have st anding t o assert t hat Ferrari breached his employment cont ract , because such a breach would inj ure Hort on. Neit her part y cit ed t he Court t o law or fact s t hat would sufficient ly demonst rat e which of Hort on’ s claims are due t o be dismissed at t his st age based on t he lack of st anding. Therefore, viewed in t he light most f avorable t o t he non-movant , t his issue must be det ermined at t rial. Summary j udgment based on a lack of st anding is due t o be denied. B. Hort on’ s Count erclaim Damages Ferrari moved for summary j udgment based on his cont ent ion t hat Hort on has f ailed t o suf ficient ly prove damages f or it s count erclaims. This argument appears t o be based on Hort on not present ing evidence of a calculat ion of t he amount of damages. However, under Alabama law, Hort on does not need t o provide evidence of a specific amount of damages in order t o survive summary j udgment . Inst ead, Hort on simply needs t o “ est ablish t he exist ence of damages as a result of t he alleged breach.” Jones v. Hamil t on, 53 So. 3d 134, 142 (Ala. Civ. App. 2010). Hort on does provide evidence of t he sources of t he purport ed damages, including t he pay Ferrari received while employed at Hort on, t he alleged Page 17 of 38 kickbacks Ferrari received from Zeit lin, and t he increased cost t hat Hort on incurred from Zeit lin’ s involvement in land deals. Viewed in t he light most f avorable t o t he non-movant , t he f act t hat t here were damages has been shown, and t he quest ion of t he amount of such damages is for t he j ury. Summary j udgment is not due t o be grant ed on t his issue. C. Hort on’ s Count er Claim for Breach of Fiduciary Dut y and t he Dut y of Loyalt y Hort on and Ferrari bot h moved for summary j udgment on Hort on’ s count erclaim against Ferrari f or breach of fiduciary dut y and breach of t he dut y of loyalt y. Ferrari argues t hat Hort on cannot bring a st at e law claim for breach of fiduciary dut ies because such claims are preempt ed by t he ATSA. The Alabama Supreme Court has held t hat “ t he legislat ure int ended for t he [ATSA] t o replace common law t ort remedies f or t he misappropriat ion of t rade secret s.” Al l ied Suppl y Co. v. Brown, 585 So. 2d 33, 37 (Ala. 1991). Yet , Hort on’ s claims are not solely based on “ misappropriat ion of t rade secret s.” Hort on also alleges t hat Ferrari t ook money from Zeit lin in exchange f or giving him priorit y on deals, t hat Ferrari lied t o Hort on, t hat Ferrari refused t o cooperat e in Hort on’ s invest igat ion of his conduct , t hat Ferrari personally invest ed in land deals wit h Zeit lin, and t hat Ferrari was disloyal t o Hort on in ot her ways. Page 18 of 38 Therefore, while some of Hort on’ s claim for breach of t he dut y of loyalt y may be preempt ed, it is not ent irely preempt ed by t he ATSA. In order t o prove breach of fiduciary dut y under Alabama st at e law, a plaint if f must show “ (1) t he exist ence of a fiduciary dut y bet ween t he part ies; (2) t he breach of t hat dut y; and (3) damages suf fered as a result of t he breach. ” Regions Bank v. Lowrey, 101 So. 3d 210, 219 (Ala. 2012). An agent owes his principal t he dut y “ t o act , in all circumst ances, wit h due regard for t he int erest s of it s principal, and t o act wit h t he ut most good f ait h and loyalt y. ” Al l ied Suppl y Co., 585 So. 2d at 37. Ferrari, as Hort on’ s employee wit h t he above described responsibilit ies, was it s agent . See Sawyer v. Chevron U.S. A. , Inc., 421 So. 2d 1263, 1264 (Ala. 1982). Hort on point s t o payment s from Zeit lin t o t he Ferrari ent it ies t o bolst er it s claims t hat Ferrari violat ed t his dut y by “ providing Zeit lin wit h preferent ial t reat ment in exchange for kickbacks.” (Doc. 163 at 29.) However, Ferrari denies t hese allegat ions, prof fering— among ot her evidence— Zeit lin’ s t est imony t hat t he payment s were not t ied t o part icular t ransact ions, his own t est imony t hat Whit ehurst direct ed him t o involve Zeit lin in t ransact ions, and t he f act t hat he did not have t he Page 19 of 38 aut horit y t o give anyone such t reat ment . There being disput ed issues of fact , summary j udgment as t o t his claim is due t o be denied. D. Hort on’ s Fait hless Servant Count erclaim Hort on and Ferrari bot h move for summary j udgment on Hort on’ s fait hless servant count erclaim against Ferrari. Alabama’ s fait hless servant doct rine “ precludes an employee from receiving compensat ion for conduct t hat is disloyal t o t he employer or in violat ion of t he employee’ s employment cont ract . ” Edwards v. Al l ied Home Mort g. Capit al Corp., 962 So. 2d 194, 209 (Ala. 2007). In Edwards, t he court held t hat if t he employee was f ound t o have violat ed his dut y of loyalt y t o his employer, he would also be f ound t o be a fait hless servant . Id. at 210-11. Here, as explained above, Ferrari’ s breach of t he dut y of loyalt y is a quest ion for t he j ury. Though fait hless servant claims can also be brought f or conduct t hat violat es an employment cont ract , Hort on does not argue t hat Ferrari incurred fait hless servant liabilit y by violat ing his employment cont ract . See Id. at 209. Hort on does allege t hat Ferrari’ s conduct breached t he rules set fort h in t he handbook, but does not present any evidence t hat in doing so, Ferrari violat ed his cont ract . However, because a reasonable j ury could find eit her t hat Ferrari was a f ait hless servant or was not a Page 20 of 38 fait hless servant , t he quest ion is for t he j ury t o det ermine, and summary j udgment on t his claim is due t o be denied. E. Hort on’ s Unj ust Enrichment Count erclaim Hort on and Ferrari moved for summary j udgment on Hort on’ s count erclaims for unj ust enrichment against Ferrari. In order t o prevail on a claim for unj ust enrichment , Hort on must show t hat “ [ Ferrari] holds money, which, in equit y and good conscience, belongs t o [Hort on] or holds money which was improperly paid t o [ Ferrari] because of mist ake or fraud.” Hancock-Hazl et t Gen. Const r. Co. v. Trane Co., 499 So. 2d 1385, 1387 (Ala. 1986). Hort on alleges t hat Ferrari is liable under a t heory of unj ust enrichment because Ferrari received compensat ion from Zeit lin for deceiving Hort on and involving Zeit lin in land deals. However, Ferrari and Zeit lin bot h deny t hat t he funds Ferrari received from Zeit lin were relat ed t o any preferent ial t reat ment , and Ferrari t est ifies t hat Zeit lin never made t hose st at ement s, t hat Ferrari only did what Whit ehurst commanded, and t hat Ferrari did not have t he aut horit y t o give Zeit lin preferent ial t reat ment . A reasonable j ury could find t hat Ferrari was not unj ust ly enriched at Hort on’ s expense. Therefore, summary j udgment as t o Hort on’ s claim for unj ust enrichment is due t o be denied. F. Hort on’ s Count erclaim Under t he ATSA Page 21 of 38 Ferrari moved f or summary j udgment on Hort on’ s claim against Ferrari under t he ATSA. The ATSA “ provides f or t he recovery of ‘ act ual damages’ suf fered as a result of a ‘ misappropriat ion’ of a t rade secret .” Syst rends, Inc. v. Grp. 8760, LLC. , 959 So. 2d 1052, 1065 (Ala. 2006) (quot ing Ala. Code § 8-27-4). Misappropriat ion has occurred if: (1) That person discovered t he t rade secret by improper means; (2) That person’ s disclosure or use const it ut es a breach of confidence reposed in t hat person by t he ot her; (3) That person learned t he t rade secret from a t hird person, and knew or should have known t hat (i) t he informat ion was a t rade secret and (ii) t hat t he t rade secret had been appropriat ed under circumst ances which violat e t he provisions of (1) or (2), above; or (4) That person learned t he informat ion and knew or should have known t hat it was a t rade secret and t hat it s disclosure was made t o t hat person by mist ake.” Ala. Code § 8-27-3. The t rade secret s t hat Hort on alleges Ferrari shared wit h Zeit lin are t he t arget s for land purchases and t heir prices. Ferrari does not disput e t hat he shared some of t his informat ion wit h Zeit lin. However, he provides evidence t hat Hort on direct ed him t o do so, because it want ed t o have Zeit lin purchase land for Hort on quiet ly. If Hort on direct ed Ferrari t o share t he informat ion, t here would be no misappropriat ion. Ferrari would have learned about t he informat ion from proper means and would not have breached Hort on’ s confidence in disclosing it . Because a reasonable j ury could find t hat Ferrari shared Page 22 of 38 informat ion at Hort on’ s direct ion, summary j udgment as t o Hort on’ s ATSA claim is due t o be denied. G. Ferrari’ s Claim f or Tit le VII Ret aliat ion Hort on moved for summary j udgment on Ferrari’ s claim against Hort on for Tit le VII ret aliat ion. The Elevent h Circuit analyzes Tit le VII ret aliat ion claims usings t he burden-shift ing scheme first est ablished in McDonnel l Dougl as Corp. v. Green, 411 U.S. 792 (1973). Brown v. Al a. Dep’ t of Transp. , 597 F. 3d 1160, 1181 (11t h Cir. 2010). If a plaint iff makes out a prima f acie case of ret aliat ion, t he burden shift s t o t he defendant t o produce evidence of a “ legit imat e, nondiscriminat ory reason[ ]” for it s act ions. Jones v. Gerwens, 874 F.2d 1534, 1540 (11t h Cir. 1989). If t he defendant produces evidence of a legit imat e reason, “ t he burden shift s back t o t he plaint if f t o discredit t he prof fered nondiscriminat ory reasons by showing t hat t hey are pret ext ual. ” Id. The plaint iff ’ s burden t o est ablish pret ext applies t o all of t he defendant ’ s proffered reasons. Chapman v. AI Transp., 229 F. 3d 1012, 1024 (11t h Cir. 2000). Thus, when a defendant proffers more t han one reason, a plaint iff f ails t o meet t his prong if he does not est ablish pret ext as t o each of t hose reasons. Id. In order t o est ablish “ [a] prima facie case of ret aliat ion under Tit le VII . . . t he plaint iff [ must ] show t hat : (1) [he] engaged in an act ivit y Page 23 of 38 prot ect ed under Tit le VII; (2) [he] suf fered an adverse employment act ion; and (3) t here was a causal connect ion bet ween t he prot ect ed act ivit y and t he adverse employment act ion.” Crawf ord v. Carrol l , 529 F. 3d 961, 970 (11t h Cir. 2008). Under Tit le VII, “ an employer may not ret aliat e against an employee because t he employee ‘ has opposed any pract ice made an unlawful employment pract ice by t his subchapt er.’ ” E.E. O.C. v. Tot al Sys. Servs. , Inc., 221 F.3d 1171, 1174 (11t h Cir. 2000) (quot ing 42 U.S.C. § 2000e-3(a)). This opposit ion does not have t o be a “ formal complaint ,” but must “ explicit ly or implicit ly communicat e [ ] a belief t hat t he pract ice const it ut es unlawful employment discriminat ion. ” Furcron v. Mail Ct rs. Pl us, LLC, 843 F. 3d 1295, 1311 (11t h Cir. 2016) (quot ing EEOC Compl. Man. (CCH) § 8-11-B(2) (2006)). Here, Ferrari claims t hat he made an “ int ernal complaint [] of sexual harassment t o superiors, ” which is sufficient t o const it ut e prot ect ed act ivit y for a prima facie case of ret aliat ion. Pipkins v. Cit y of Templ e Terrace, Fl a. , 267 F. 3d 1197, 1201 (11t h Cir. 2001). Furt her, Ferrari was t erminat ed, which is an adverse employment act ion. See Crawf ord, 29 F. 3d at 970. The causal connect ion bet ween t he prot ect ed act ivit y and t he adverse employment act ion requires “ but -for causat ion. ” Univ. of Tex. Sw. Med. Ct r. v. Nassar, 133 S. Ct . 2517, 2533 (2013). This burden can t ypically “ be Page 24 of 38 met by showing close t emporal proximit y bet ween t he st at ut orily prot ect ed act ivit y and t he adverse employment act ion.” Thomas v. Cooper Light ing, Inc. , 506 F. 3d 1361, 1364 (11t h Cir. 2007). However, “ mere t emporal proximit y, wit hout more, must be ‘ very close.’ ” Id. (quot ing Brungart v. Bel l Sout h Tel ecomm., Inc., 231 F. 3d 791, 798–99 (11t h Cir. 2000)). Here, Ferrari t est ifies t hat he verbally complained t o Whit ehurst about t he alleged sexual harassment from February t o May of 2013. He was suspended on July 9 or 10, 2013 and t erminat ed on July 31, 2013. Therefore, Ferrari was t erminat ed about t wo mont hs aft er his last complaint t o Whit ehurst about sexual harassment . The Elevent h Circuit has ruled t hat a one-mont h gap is suf ficient ly close t o est ablish causat ion by it self , but a t hree mont h period is not . Higdon v. Jackson, 393 F. 3d 1211, 1221 (11t h Cir. 2004); Donnel l on v. Fruehauf Corp. , 794 F.2d 598, 601 (11t h Cir. 1986) (period of one mont h bet ween prot ect ed act ivit y and adverse employment act ion is enough t o show causat ion). However, Ferrari has also provided evidence t hat Hort on had received complaint s about t he very same conduct made t he basis of his t erminat ion as early as 2012, but did not act on such complaint s unt il aft er Ferrari complained about sexual harassment . Therefore, t he Court Page 25 of 38 will assume, arguendo, t hat Ferrari has est ablished a causal connect ion and t hus a prima facie case of ret aliat ion. The burden t hen shift s t o t he defendant t o produce evidence of a “ legit imat e, nondiscriminat ory reason[]” for it s act ions. Brown v. Al a. Dep’ t of Transp. , 597 F.3d 1160, 1181 (11t h Cir. 2010); Jones v. Gerwens, 874 F. 2d 1534, 1540 (11t h Cir. 1989). However, t he burden does not require “ [t ]he defendant . . . [t o] persuade t he court t hat it was act ually mot ivat ed by t he prof fered reasons. ” Texas Dep’ t of Cmt y. Af f ai rs v. Burdine, 450 U.S. 248, 254 (1981). Inst ead, “ [i]t is sufficient if t he defendant 's evidence raises a genuine issue of fact as t o whet her it discriminat ed against t he plaint if f .” Id. Here, Hort on alleges it t erminat ed Ferrari for “ f ailure t o follow clear inst ruct ion[ ,]. . . conflict of int erest [, ]. . . f alse informat ion provided in an invest igat ion[, ]. . . refu[sal] t o cooperat e wit h invest igat ion[, and] . . . insubordinat ion.” (Whit ehurst Dec. Ex. D. ) Therefore, “ t he burden shift s back t o t he plaint if f t o discredit t he prof fered nondiscriminat ory reasons by showing t hat t hey are pret ext ual. ” St andard v. A.B.E.L. Servs., 161 F.3d 1318, 1331 (11t h Cir. 1998). An employee can do t his “ eit her direct ly by persuading t he court t hat a [ret aliat ory] reason more likely mot ivat ed t he employer or Page 26 of 38 indirect ly by showing t hat t he employer’ s prof fered explanat ion is unwort hy of credence.” Burdine, 450 U.S. at 256. However, “ [ p]rovided t hat t he prof fered reason is one t hat might mot ivat e a reasonable employer, an employee must meet t hat reason head on, and rebut it , and t hat employee cannot succeed by simply quarreling wit h t he wisdom of t hat reason.” Chapman, 229 F.3d at 1030. Therefore, if “ a plaint if f chooses t o at t ack t he veracit y of t he employer’ s prof fered reason, ‘ [t he] inquiry is limit ed t o whet her t he employer gave an honest explanat ion of it s behavior.’ ” Kragor v. Takeda Pharm. Am. , Inc., 702 F. 3d 1304, 1310-11 (11t h Cir. 2012) (quot ing El rod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11t h Cir. 1991)). Furt her, “ [t ]he dist rict court must . . . det ermine whet her t he plaint iff has cast suf ficient doubt on t he defendant ’ s proffered nondiscriminat ory reasons t o permit a reasonable f act finder t o conclude t hat t he employer’ s prof fered ‘ legit imat e reasons were not what act ually mot ivat ed it s conduct .’ ” Combs v. Pl ant at ion Pat t erns, 106 F.3d 1516, 1538 (11t h Cir. 1997) (quot ing Cooper-Houst on v. S. Ry. Co., 37 F.3d 603, 605 (11t h Cir. 1994)). Ferrari alleges t hat Hort on’ s f ailure t o inform him about t he exact reason for his t erminat ion and t he result s of it s int ernal invest igat ion is Page 27 of 38 evidence of pret ext . He also alleges t hat Hort on’ s reasons for t erminat ion were impermissibly vague and show pret ext because Hort on f ailed t o explain which of Ferrari’ s conduct fit s int o t he cat egories of “ f ailure t o follow clear inst ruct ion, conflict of int erest , false informat ion provided in an invest igat ion, refusal t o cooperat e wit h an invest igat ion, and insubordinat ion. ” (Doc. 180 at 12-13.) See St amey v. S. Bel l Tel . & Tel . Co., 859 F.2d 855, 862 (11t h Cir. 1988) (“ vague” reasons are not enough t o rebut prima facie case). Last ly, Ferrari alleges t hat pret ext is shown by t he t iming of Ferrari’ s t erminat ion, because, according t o Ferrari, Hort on had received complaint s about Ferrari’ s alleged conflict s of int erest as early as 2012, but did not choose t o act upon t he complaint s unt il aft er Ferrari complained about sexual harassment . Hort on explains t hat it did invest igat e t hese complaint s, but t ook no act ion against Ferrari unt il July 2013 because it was unable t o find any evidence of Ferrari’ s misconduct unt il it conduct ed an invest igat ion in June and July 2013. A reasonable j ury could conclude t hat Hort on f ailed t o invest igat e t hese complaint s rigorously at an earlier dat e because Hort on was not t ruly concerned about t hem. See Hinson v. Cl inch Cnt y., Ga. Bd. of Educ. , 231 F. 3d 821, 831 (11t h Cir. 2000). Therefore, viewed in t he light most f avorable t o Page 28 of 38 Ferrari, t he fact s alleged “ could allow a j ury t o find by preponderance of t he evidence t hat [he] has est ablished pret ext . ” Hairst on v. Gainesvil l e Sun Pub. Co., 9 F. 3d 913, 921 (11t h Cir. 1993). Summary j udgment as t o Ferrari’ s Tit le VII ret aliat ion claims is due t o be denied. H. Ferrari’ s Claim for Dist ress/ Out rage Int ent ional Inflict ion of Emot ional Ferrari claims int ent ional inflict ion of emot ional dist ress/ out rage based on t he alleged sexual harassment t hat he suf fered. Hort on moved for summary j udgment on t his claim. In Alabama, t he t ort s of int ent ional inflict ion of emot ional dist ress and out rage are synonymous. Ex part e Crawf ord & Co., 693 So. 2d 458, 460 (Ala. 1997). To bring a successful act ion for out rage, a “ plaint iff must prove (1) t hat t he defendant ’ s conduct was int ent ional or reckless; (2) t hat it was ext reme and out rageous; and (3) t hat it caused emot ional dist ress so severe t hat no reasonable person could be expect ed t o endure it .” Id. The t ort is limit ed to part icularly serious sit uat ions, including “ egregious sexual harassment .” Lit t l e v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011). It does not permit act ions f or “ mere insult s, indignit ies, t hreat s, annoyances, pet t y oppressions, or ot her t rivialit ies.” Ex part e Bol e, 103 So. 3d 40, 52 (Ala. 2012). Page 29 of 38 The st at ut ory period of limit at ion f or t he t ort of out rage is t wo years. Cont ’ l Cas. Ins. Co. v. McDonal d, 567 So. 2d 1208, 1215 (Ala. 1990). Ferrari argues t hat t he conduct was a “ cont inuing violat ion” and t hat t he Court should adopt a “ host ile work environment ” t heory from Tit le VII j urisprudence, which would allow all of t he conduct t o be considered as one act ion for limit at ions purposes. (Doc. 180 at 21-22.) However, Ferrari provides no support f or such an adopt ion in Alabama case law. Furt her, a “ cont inuing t ort ” argument in a similar case has already been made before t he Alabama Supreme Court , which rej ect ed t he argument and held t hat an act ion f or conduct out side of t he t wo-year limit at ions period was t ime-barred. Mardi s v. Robbins Tire & Rubber Co. , 669 So. 2d 885, 888 (Ala. 1995). Ferrari filed t he inst ant act ion on Oct ober 10, 2014. Therefore, any claims arising from act ions t hat t ook place before Oct ober 10, 2012 are t ime-barred and will not be considered by t he Court . Ferrari’ s own elect ronic j ournal places most of t he conduct as occurring before Oct ober 2012. The allegedly harassing event s t hat occurred aft er t hat dat e are t he following: 1) Ferrari received a November 27, 2012 email from Dequat t ro in which she said “ I will f-----g REMEMBER t o do t his.” (Id. ) Page 30 of 38 2) Ferrari received a November 28, 2012 email from Dequat t ro which st at ed “ [Aww!] I needed t hat , my head is about t o explode.” This email was in response t o Ferrari’ s email which said “ You’ re t he t erminat or.” (Id. ) 3) Ferrari received a December 12, 2012 email and a March 14, 2013 email from Dequat t ro in which she said “ Love ya. ” (Id.) 4) Ferrari received a May 22, 2013 email from Shane H. Ikerman (“ Ikerman” ) in which he said “ lol B---h.” This email was a reply t o Ferrari’ s email which st at ed “ Neeener neeeener neeeener.” (Id.) 5) Ferrari received a May 30, 2013 email from Dequat t ro in which she called him “ dear.” (Id.) Ferrari does not provide a dat e for t he following allegedly harassing event s: 1) Ferrari received an email from Dequat t ro wit h a pict ure of a man in his underwear and a comment about t he pict ure. (Ferrari Dep. at 114-15.) 2) Ferrari received an email from Dequat t ro wit h a link t o a “ Mormon sex sit e or somet hing like t hat .” (Id. ) 3) Ferrari wit nessed Dequat t ro’ s discussions about “ how she t aught her daught er . . . how t o give oral sex replet e wit h hand gest ures Page 31 of 38 and mout h gest ures, ” and “ her preference for anal sex, ” and how “ it of fended her sensibilit ies t hat aft er anal sex [a boyfriend] want ed her t o give him oral sex.” (Ferrari Dep. at 198-99. ) 4) Ferrari wit nessed Dequat t ro and Kropp discussing “ t he f act t hat Scot t [Whit ehurst ] has a small penis, [his wife] does not like t o have sex wit h him and he is a one minut e wonder. ” (Id. at 199. ) 5) Ferrari wit nessed Ikerman’ s recount ing of conversat ions wit h Dequat t ro about “ her need, her want for cert ain male body part s. ” (Id. at 199-200.) 6) Ferrari was subj ect ed t o Dequat t ro’ s showing him and Whit ehurst an image of “ a broken shower glass where her daught er had broken t he glass . . . from having sex wit h her boyfriend,” and Whit ehurst “ t rac[ing] t he out line of [t he daught er’ s] backside on t he shower glass and ma[king] a disgust ing comment about it .” (Id. at 200.) 7) Ferrari was subj ect ed t o Kropp’ s “ t ouching [him] inappropriat ely wit h great frequency, lift ing [his] shirt , using t he nat ure of t he clot h of [his] shirt t o t ouch [his] arms, describing discussions . . . wit h . . . Dequat t ro about [him] in compromised sit uat ions, ” and “ cornering [Ferrari] . . . and t elling [ him] t hat she want ed t o have Page 32 of 38 sexual relat ions wit h [him] . . . wit h [his] wife in earshot . ” (Id. at 200-01.) 8) Ferrari was subj ect ed t o Kropp’ s comment ing about her sexual habit s, including “ descript ions of her body when she was t eaching aerobics and what she could do wit h t hat body, descript ions . . . of her hyst erect omy and what it did t o her privat e part s . . . [and] of sexual relat ions she had wit h someone in a wheelchair. ” (Id. at 201. ) 9) Ferrari wit nessed Whit ehurst ’ s st at ing “ what HR, t here is no HR.” (Ferrari Dep. at 202-03.) Ferrari also alleges t hat t here were ot her proposit ions and inappropriat e emails similar t o t hose described above. None of t he above inst ances, t aken singly or t oget her, amount t o cognizable out rage under Alabama law. Solicit at ions for an ext ra-marit al af fair, such as t hose Kropp purport edly direct ed at Ferrari, “ do not const it ut e out rageous conduct . ” Perki ns v. Dean, 570 So. 2d 1217, 1219 (Ala. 1990). Yet , t he Alabama Supreme Court held t hat vict ims of sexual assault have cognizable claims for t he t ort of out rage. Harrel son v. R.J. , 882 So. 2d 317, 321 (Ala. 2003). A plaint iff could also make out a claim for out rage when her supervisor made sexual comment s t o her and t hen Page 33 of 38 “ grabbed her by t he wrist , pulled her int o his lap, and began rubbing her t ight s. ” Machen v. Chil dersburg Bancorporat ion, Inc., 761 So. 2d 981, 983 (Ala. 1999). In Busby v. Truswal Syst ems Corp. , t he court allowed a claim for out rage when t he plaint iff s showed t hat t he defendant had made sexual comment s t o t he plaint iff s, t ried t o follow one of t he plaint iff s int o t he rest room, st ared at a plaint iff’ s genit als, and “ put his arm around t he plaint iff s, grabbed t heir arms, and st roked t heir necks. ” 551 So. 2d 322, 324 (Ala. 1989). In Henry v. Georgia-Pacif ic Corp. , an employer required t he plaint iff t o cont inue t o at t end counseling sessions aft er a counselor made sexual comment s during sessions and once asked t he plaint iff t o t ake of f her shirt . 730 So. 2d 119 (Ala. 1998). The Alabama Supreme Court held t hat “ [ a] j ury could reasonably det ermine t hat [t he defendant s’ ] conduct was out rageous” because “ [t he employer], wit h prior knowledge, required [t he plaint iff] t o cont inue counseling sessions at which improper sexual conduct was occurring.” Id. at 121. Viewing t he evidence in t he light most f avorable t o t he non-movant , Ferrari fails t o allege any conduct t hat amount s t o t he severit y required t o make out a claim for out rage. Thus, summary j udgment is due t o be grant ed in Hort on’ s f avor as t o Ferrari’ s claim for out rage. Page 34 of 38 I. Ferrari’ s Claim f or Invasion of Privacy Hort on moves f or summary j udgment on Ferrari’ s st at e law claim f or invasion of privacy. In order t o est ablish a “ claim alleging invasion of privacy relat ing t o sexual harassment , a plaint iff must show: (1) t hat t he mat t ers int ruded int o are of a privat e nat ure; and (2) t hat t he int rusion would be so of fensive or obj ect ionable t hat a reasonable person subj ect ed t o it would experience out rage, ment al suf fering, shame, or humiliat ion.” Ex part e At more Cmt y. Hosp., 719 So. 2d 1190, 1195 (Ala. 1998). “ Ext ensive inquiries int o one’ s sex life . . . may const it ut e an invasion of privacy. ” Id. at 1194. However, t he Alabama Supreme Court has only f ound viable claims for invasion of privacy based on sexual harassment in a few cases. The fact s in t hese cases involved egregious sexual conduct . In At more Communit y Hospit al , t he defendant made sexual comment s, “ asked [t he plaint iff] t o meet him out side of work hours for ot her t han business purposes, ” and “ looked up her skirt .” 719 So. 2d at 1195. In Phil l ips v. Smal l ey Maint enance Services, Inc., t he plaint iff t est ified t hat t he defendant inquired int o her sexual relat ionship wit h her husband, asked her for oral sex repeat edly, and “ st ruck her across t he but t ocks wit h his hand. ” 435 So.2d 705, 711 (Ala. 1983). In Busby, a supervisor made various lewd Page 35 of 38 comment s and gest ures about t he plaint iffs, “ act ed as if he was going t o pinch one plaint if f’ s breast s wit h a pair of pliers and wit h his hands,” t ried t o ent er t he rest room wit h plaint iffs, f ollowed t he plaint iff s, and “ put his arm around t he plaint iff s, grabbed t heir arms, and st roked t heir necks. ” Busby, 551 So. 2d at 324. Ferrari has not shown t he exist ence of fact s t hat are severe enough t o make out a claim for invasion of privacy. Most of Ferrari’ s allegat ions involve sexual comment s, oft en about ot her individuals, and none of t he sexual gest ures involved Ferrari’ s body. Ferrari does allege t hat comment s were made about his sex life and t hat Kropp t ouched his arms and lift ed his shirt . However, unlike Busby— where t he incident of armt ouching was accompanied by ot her t ouches, sexual comment s about t he plaint if fs, following t he plaint iff s, and t hreat ening gest ures— Ferrari does not present evidence of ot her egregious conduct direct ed at his person. Therefore, viewing t he evidence in t he light most f avorable t o t he nonmovant , Ferrari has f ailed t o est ablish t hat Hort on’ s conduct was “ of fensive or obj ect ionable” enough “ t hat a reasonable person subj ect ed t o it would experience out rage.” At more Cmt y. Hosp. , 719 So. 2d at 1195. Summary j udgment in Hort on’ s favor is due t o be grant ed on Ferrari’ s claim for invasion of privacy. Page 36 of 38 J. Ferrari’ s Claim f or Negligent and Want on Supervision, Hiring and Ret ent ion Hort on moved f or summary j udgment on Ferrari’ s claim against Hort on f or negligent and want on supervision, hiring, and ret ent ion. In order t o st at e t his claim, a plaint iff must show “ by affirmat ive proof t hat [a servant ’ s] incompet ency was act ually known by t he mast er, or t hat had he exercised due and proper diligence, he would have learned t hat which would charge him in t he law wit h such knowledge.” Armst rong Bus. Servs. , Inc. v. AmSout h Bank, 817 So. 2d 665, 682 (Ala. 2001); see Jones Exp. , Inc. v. Jackson, 86 So. 3d 298, 305 (Ala. 2010). Here, Ferrari alleges t hat Hort on knew about t he allegedly harassing conduct t hrough various “ verbal” report s t hat Ferrari made t o management . However, Ferrari must also show “ t hat t he allegedly incompet ent employee commit t ed . . . [a] t ort . ” Jones Exp., 86 So. 3d at 304 (quot ing Thrasher v. Ivan Leonard Chevrol et , Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002)). As discussed above, Ferrari cannot show t hat Hort on’ s employees commit t ed t he t ort s of out rage or invasion of privacy. Ferrari also has not argued or provided any evidence t hat Hort on’ s employees commit t ed anot her underlying t ort . Therefore, viewing t he evidence in t he light most favorable t o t he non-movant , Ferrari cannot make out a claim f or Page 37 of 38 negligent or want on supervision, hiring, and ret ent ion. Summary j udgment in Hort on’ s f avor is due t o be grant ed as t o t his claim. IV. CONCLUSION For t he reasons st at ed above, Ferrari’ s mot ion for summary j udgment is due t o be DENIED. 2 Hort on’ s mot ion for summary j udgment is due t o be GRANTED in part and DENIED in part . Summary j udgment is due t o be grant ed in Hort on’ s favor as t o Ferrari’ s claims for out rage, invasion of privacy, and negligent or want on supervision, hiring and ret ent ion. Summary j udgment as t o all ot her claims is due t o be denied. Furt her, Hort on’ s Mot ions t o St rike (Doc. 188 and 190) are DENIED AS MOOT. A separat e order consist ent wit h t his opinion will be ent ered. DONE and ORDERED t his 3rd day of February 2017. _____________________________ L. Scot t Coogler Unit ed St at es Dist rict Judge 186291 2 Ferrari moved for summary j udgment on all of Hort on’ s count erclaims against him. However, he failed t o ment ion Hort on’ s claims for f raud t hrough misrepresent at ion of mat erial fact under Ala. Code § 6-5-101, f raud t hrough suppression of mat erial f act s under Ala. Code § 6-5-102, f raudulent deceit under Ala. Code § 6-5-104, and int ent ional int erference wit h prospect ive economic advant age. Therefore, t he Court will int erpret Ferrari’ s mot ion as not moving for summary j udgment on t hose claims. As such, t hose count erclaims will proceed t o t rial. Page 38 of 38