O'Donnell v. Punta Gorda HMA, LLC
Filing
14
OPINION AND ORDER granting in part and denying in part 11 Motion to dismiss. The motion is granted to the extent that Counts III and IV are dismissed without prejudice and the motion is otherwise denied. Plaintiff may file an amended complaint within 21 days. See Opinion and Order for details. Signed by Judge John E. Steele on 7/27/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOANNE JOHNSON O'DONNELL,
Plaintiff,
vs.
Case No.
2:10-cv-785-FtM-29SPC
PUNTA GORDA HMA, LLC, doing business
as
CHARLOTTE
REGIONAL
MEDICAL
CENTER,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss (Doc. #11) filed on January 26, 2011.
response (Doc. #13) on February 9, 2011.
#1),
plaintiff
alleges
defendant,
Plaintiff filed a
In the Complaint (Doc.
her
former
employer,
discriminated against her based upon her disability in violation of
the Americans with Disabilities Act (Count I) and the Florida Civil
Rights Act (Count II).
She also alleges claims for retaliation
(Count III) and hostile work environment (Count IV) in violation of
Title VII of the Civil Rights Act of 1964.
Defendant argues that
the entire complaint should be dismissed because it is time-barred
by the applicable statute of limitations. Alternatively, defendant
seeks dismissal of Counts III and IV for failure to state a claim.
I.
A complaint must contain a short and plain statement showing
an
entitlement
to
relief,
and
the
statement
must
“give
the
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”
Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002)(citing Fed. R. Civ. P. 8); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
In
deciding a motion to dismiss, the Court must accept all factual
allegations in a complaint as true and take them in the light most
favorable to plaintiff.
Erickson v. Pardus, 551 U.S. 89, 93
(2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002).
survive dismissal,
the
complaint’s
allegations
must
“To
plausibly
suggest that the [plaintiff] has a right to relief, raising that
possibility
above
a
speculative
level;
if
plaintiff’s complaint should be dismissed.”
they
do
not,
the
James River Ins. Co.
v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
The former rule--that “[a] complaint should be dismissed only if it
appears beyond doubt that the plaintiffs can prove no set of facts
which would entitle them to relief,” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004)--has been retired by
Twombly.
James River Ins. Co., 540 F.3d at 1274.
Thus, the Court
engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
-2-
The
Court need not accept as true legal conclusions or mere conclusory
statements.
Id.
II.
The Court is able to decipher from the Complaint the following
relevant facts: Plaintiff began working for defendant on December
15,
2008
as
a
Licensed
Advanced
Assistant/Telemtry/Unit Secretary.
later, on February 16, 2009.
filed
a
charge
(Doc. #1, ¶ 7.)
of
Nursing
She was terminated two months
from Systematic Lupus Erythmatosis.
plaintiff
Certified
(Id.)
Upon her termination,
discrimination
Employment Opportunity Commission (EEOC).
Plaintiff suffers
with
the
Equal
The EEOC later sent
plaintiff her Notice of Right to Sue (the Notice).
Although the
Notice was dated September 2, 2010, plaintiff alleges she received
it on or about September 22, 2010.
(Id., ¶3.)
Plaintiff filed
this lawsuit on December 21, 2010.
III.
Defendant first argues that the Complaint should be dismissed
because plaintiff’s claims are barred by the applicable statute of
limitations.
Under the Americans with Disabilities Act (ADA) and
Title VII, a plaintiff must bring suit within 90 days of receiving
a right-to-sue letter from the EEOC.
Miller v. Georgia, 223 F.
App’x 842, 844 (11th Cir. 2007); 42 U.S.C. § 12117(a); 42 U.S.C. §
2000e–5(f)(1).
When
plaintiff
fails
to
do
so,
dismissal
is
appropriate, unless she shows that the delay was through no fault
-3-
of her own.
1339–41
Zillyette v. Capital One Fin. Corp., 179 F.3d 1337,
(11th
Cir.
1999).
In
the
Eleventh
Circuit,
courts
calculate the ninety-day period beginning with the claimant’s
“actual receipt” of the notice. Kerr v. McDonald’s Corp., 427 F.3d
947, 952 (11th Cir. 2005)(citing Franks v. Bowman Transp. Co., 495
F.2d 398, 404 (5th Cir. 1974)).
Plaintiff alleges that she received the Notice “on or about”
September 22, 2010.
Defendant responds that the Notice was dated
September 2, 2010 and that mailing from the EEOC’s office in Miami,
Florida to plaintiff’s residence in Punta Gorda, Florida could not
possibly
have
taken
twenty
days.
Defendant
speculates
that
plaintiff intentionally “re-worked” the actual receipt date so as
to make the filing of her Complaint fall within the ninety-day
period.
At this stage of the proceedings, the Court must take the
allegations of the Complaint as true and construe them in the light
most favorable to plaintiff. Here, the most favorable construction
is that plaintiff received the Notice exactly on September 22nd,
thus making her filing of the lawsuit on December 21, 2010 timely.
Thus, the Court cannot dismiss the Complaint at this time based
upon the statute of limitations.
IV.
Defendant
next argues
that
Counts
dismissed for failure to state a claim.
-4-
III
and
IV
should
be
A.
Count III: Retaliation
Defendant contends that plaintiff’s retaliation claim must
fail because Title VII does not protect individuals from disability
discrimination.1
Plaintiff responds that she mistakenly labeled
Count III as a retaliation claim under Title VII and that she
intended to allege this claim under the ADA.
Because courts apply
the same analytic framework to retaliation claims under the ADA and
Title VII, the Court will construe Count III as a retaliation claim
under the ADA.
Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
117 F. 3d 1278, 1287 (11th Cir. 1997); Olmstead v. Defosset, 205 F.
Supp. 2d 1316, 1321 n.1 (M.D. Fla. 2002).
To state a retaliation
claim under the ADA, plaintiff must allege facts which demonstrate
that: (1) she participated in an activity that the ADA protects,
(2) she suffered an adverse employment action, and (3) there is a
causal
connection
between
the
participation
activity and the adverse employment decision.
in
the
protected
Olmstead, 205 F.
Supp. 2d at 1320-21; Albra v. City of Fort Lauderdale, 232 F. App’x
885, 891 (11th Cir. 2007).
Plaintiff’s allegations with respect to Count III are vague
and confusing and do not meet the pleading requirements of Federal
Rules of Civil Procedure 8 and 10.
On the face of the Complaint,
it appears that plaintiff’s retaliation claim is based on her
1
Defendant is correct that Title VII protects employees from
discrimination based upon “race, color, religion, sex or national
origin”, not on the basis of an individual’s disability. 42 U.S.C.
§ 2000e–2.
-5-
filing of the EEOC charge.
(Doc. #1, ¶¶42-43.)
While the filing
of an EEOC charge constitutes protected activity under the ADA, a
causal connection must exist between the protected activity and the
resulting adverse employment action.
Here, plaintiff alleges that
she filed her EEOC charge after her employment was terminated.
Thus, there can be no causal connection between the filing of the
EEOC charge and any adverse action taken by the defendant.
See
Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1354 (11th Cir.
1999)(“At a minimum, a plaintiff must establish that the employer
was actually aware of the protected expression at the time it took
the adverse employment action.”)
Plaintiff
regarding
the
urges
EEOC
the
Court
charge
and
to
disregard
instead
to
her
look
to
allegations
the
other
allegations of the complaint for examples of a “protected activity”
under the ADA.2
The Court has reviewed the Complaint and cannot
decipher plaintiff’s allegations in this regard.3
Plaintiff must
clearly identify the protected activity she engaged in and the
adverse employment action she suffered as a result. Count III will
be dismissed with leave to amend.
2
Despite mentioning the EEOC charge several times in Count
III, plaintiff directly contradicts the allegations of the
Complaint in her response and contends that the filing of the
charge was not the “protected activity” which caused her adverse
employment action. (Doc. #13, pp. 2-3.)
3
Certain portions of the Complaint simply do not make sense.
For example, plaintiff states “Plaintiff is a protective activity
in which Plaintiff was a covered individual under statutes” (doc.
#1, ¶42); interchangeably refers to herself in the third person and
the first person - “Plaintiff was on MY dinner break” (id., ¶¶ 1017); and makes a variety of grammatical errors in almost every
paragraph.
-6-
B.
Count IV: Hostile Work Environment
To state a claim for hostile work environment under either
Title
VII
or
ADA4,
the
plaintiff
must
allege
facts
which
demonstrate: (1) that she belongs to a protected group, (2) that
she was subjected to unwelcome harassment, (3) that the harassment
was based on a protected characteristic, (4) that the harassment
was sufficiently
severe
or
pervasive
to
alter
the
terms
and
conditions of employment, and (5) that the employer is either
directly
or
vicariously
environment.
responsible
for
the
abusive
work
Burgos v. Chertoff, 274 F. App’x 839, 842 (11th Cir.
2008)(applying standard to ADA claim); Miller v. Kenworth of
Dothan,
Inc.,
277
F.3d
1269,
1275
(11th
Cir.
2002)(applying
standard to Title VII claim). Additionally, to be actionable, this
behavior must result in both an environment “that a reasonable
person would find hostile or abusive” and an environment that the
victim “subjectively perceive[s] ... to be abusive.”
Miller, 277
F.3d at 1276 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)).
meet
this
A “mere utterance of an...epithet” is insufficient to
standard;
the
workplace
must
be
“permeated
discriminatory intimidation, ridicule and insult.”
with
Id.
The Court finds that plaintiff has failed to sufficiently
plead a hostile work environment claim under either Title VII or
the ADA.
Count IV is a verbatim recitation of Count III and,
4
The Court suspects that plaintiff has again mislabeled this
claim as a violation of Title VII. As stated above, Title VII
protects employees from discrimination based upon “race, color,
religion, sex or national origin”, not on the basis of an
individual’s disability. 42 U.S.C. § 2000e–2.
-7-
similarly, fails to comply with Federal Rules of Civil Procedure 8
and 10.
Contrary to plaintiff’s assertions, the incorporation of
earlier paragraphs in the Complaint does not cure this deficiency.
Plaintiff is required to identify the basis of her claim (Title VII
or the ADA) and to plead facts clearly and precisely to support the
elements outlined above. Fed. R. Civ. P. 10(b); see also, Anderson
v. Dist. Bd. Of Trs. Of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367
(11th Cir. 1996).
Count IV will be dismissed with leave to amend.
Accordingly, it is now
ORDERED:
1.
Defendant’s Motion to Dismiss (Doc. #11) is GRANTED in
part, to the extent that Counts III and IV are dismissed, without
prejudice, and with leave to amend.
The Motion is otherwise
denied.
2.
Plaintiff may file an amended complaint setting forth all
of her claims WITHIN TWENTY ONE (21) DAYS of this Opinion and
Order.
If no amended complaint is filed within twenty-one days,
the case will proceed on Counts I and II.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2011.
Copies:
Counsel of record
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27th
day of
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