Cross et al v. Florida Department of Corrections

Filing 62

OPINION AND ORDER granting in part and denying in part 29 motion to dismiss. Defendant's request to dismiss the Second Amended Complaint as untimely and for failure to exhaust is DENIED. Defendant's request to dismiss the Second Amende d Complaint for improper joinder of claims is DENIED AS MOOT. Defendant's request to dismiss Count I of the Second Amended Complaint pursuant to Fed. R. Civ. P. 8 and 12(b)(6) is GRANTED and Count I is DISMISSED WITHOUT PREJUDICE. Plaintiff ma y file a Third Amended Complaint separating the claims currently in Count I into two separate counts, and making such other amendments as she deems appropriate, within TWENTY-ONE (21) DAYS of the date of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 4/18/2013. (SVC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MELINDA NEAL-MYERS,
Plaintiff,
vs.

Case No.

2:11-cv-654-FtM-29DNF

FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss the Second Amended Complaint (Doc. #29) filed on August 23,
2012.

Plaintiff filed a response on September 10, 2012.

(Doc.

#32.)1

For the reasons set forth below, the motion is granted in

part and denied in part.
I.
A.

Procedural History
Some

procedural history

in

this

case

is

warranted.

On

November 10, 2011, plaintiff Melinda Neal-Myers (Neal-Myers or
plaintiff) and Ashley M. Cross (Cross) filed a six-count Complaint
against defendant Secretary, Department of Corrections (DOC or
defendant).
1

Defendant filed a motion to dismiss, and in response,

As will be discussed in more detail below, this case was
administratively closed on October 19, 2012. Plaintiff’s response
was filed while she was still represented by counsel. Counsel has
since withdrawn from this action, and plaintiff is proceeding pro
se. On January 23, 2013, plaintiff notified the Court that she
wished to proceed utilizing her previous counsel’s response to the
motion rather than filing a response of her own. (Doc. #55.)

plaintiff and Cross filed an Amended Complaint.

(Doc. #16.)

Thereafter, defendant filed a second motion to dismiss (Doc. #18).
On July 9, 2012, the Court dismissed without prejudice two of
plaintiff’s counts and provided another opportunity to amend.
(Doc. #27.)

On August 9, 2012, plaintiff and Cross filed a Second

Amended Complaint, which is now the operative pleading in this
case.

(Doc. #28.)

on August 23, 2012.

Defendant filed the subject motion to dismiss
(Doc. #29.)

Thereafter, on October 17, 2012, the parties notified the
Court that they had successfully mediated the claims and the Court
administratively closed the case.

(Doc. #35.)

On October 26,

2012, defendant filed a Motion to Enforce the Settlement as to
Neal-Myers.

(Doc. #38.)

of Voluntary Dismissal.

On November 1, 2012, Cross filed a Notice
(Doc. #39.)

On November 5, 2012, Neal-

Myers’s counsel filed a motion to withdraw as her attorney.

(Doc.

#40.) On November 14, 2012, the Court denied defendant’s motion to
enforce the settlement but granted counsel’s request to withdraw
from the case.
prejudice.
B.

The Court also dismissed Cross’s claims with

(Doc. #43.)

The case was re-opened on the same day.

Factual Allegations
Because Cross is no longer a party to this action, the Court

will only recite the factual allegations in the Second Amended

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Complaint as they relate to Neal-Myers.2

The Second Amended

Complaint alleges the following:
Neal-Myers is an African American and was employed as a state
correctional officer at the DeSoto Correctional Institution in
Arcadia, Florida from on or about June 1, 2001, until on or about
April 11, 2011.

Plaintiff satisfactorily performed all of her job

duties at all relevant times.

Plaintiff asserts that Lieutenant

Carrie Rector (Lt. Rector) became one of her supervisors in or
about July, 2010.

Lt. Rector provided white employees with more

favorable duties than African American employees, “including duties
where such employees sat on the perimeter of the facility and did
not have to interact with inmates.”
of

2010,

Neal-Myers

complained

(Doc. #28, ¶20.)

about

this

In September

treatment

and

was

reprimanded by Lt. Rector.3
On or about October 2, 2010, Neal-Myers, Cross, and another
African-American

correctional

building

a

having

officer

conversation.

were

outside

Another

white

of

a

DOC

supervisor,

Lieutenant Tucker4 (Lt. Tucker) informed the three individuals that
“they were to separate from each other [sic].”

(Doc. #28, ¶25.)

Neal-Myers asserts that white officers are permitted to spend

2

Certain factual allegations relate solely to Cross.
e.g. doc. #28, ¶23.)
3

The nature of the reprimand is not alleged.

4

Lt. Tucker’s full name is not alleged.
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(See,

extended periods of time gathering without facing discipline or
criticism. That same day, Neal-Myers, Cross, and the other African
American

correctional

officer

were

informed

that

there

were

“issues” with them “gathering” and that they would have to attend
a meeting regarding the situation.
The meeting was held the same day and attended by Neal-Myers,
Cross, the other African-American correctional officer, Lt. Rector,
Lt.

Rector’s

Sergeants.

white

supervisor,

Captain

Kilgo,

and

two

white

Neal-Myers questioned the reason for the meeting and

Lt. Rector screamed at plaintiff complaining that Neal-Myers was
calling her a racist.

The following day, Neal-Myers and Cross

spoke

of

to

the

Warden

discrimination.

the

facility

regarding

the

racial

Neal-Myers and Cross were then transferred to a

different location.

On or about January 31, 2011, plaintiff filed

a Charge of Discrimination with the Equal Employment Opportunity
Commission (EEOC).
Plaintiff’s
defendant.

She was terminated on April 11, 2011.

Amended

Complaint

asserts

two-counts

against

Count I asserts a claim for discrimination based upon

race/color and Count II asserts a claim for retaliation.
claims are brought pursuant to Title VII.

Both

Defendant asserts that

the Amended Complaint is untimely, plaintiff has failed to exhaust
her administrative remedies, Neal-Myers and Cross’s claims were
improperly joined, and Count I improperly asserts more than one

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cause of action or otherwise fails to state a claim.

Plaintiff

argues to the contrary.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). This

obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

This requires “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) 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 (2007), but “[l]egal conclusions without adequate factual
support are entitled to no assumption of truth,”

Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011)(citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.

“Factual allegations that are merely consistent

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with

a

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012)(internal quotation marks and citations omitted).

Thus,

the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

Iqbal, 556 U.S. at 679.
III.

A.

Timeliness
The DOC asserts that plaintiff’s Second Amended Complaint is

untimely and should be dismissed.

Specifically, the DOC contends

that this Court’s July 9, 2012, Order required plaintiff to file a
Second Amended Complaint on or before July 30, 2012.

Plaintiff

did not file the Second Amended Complaint until August 9, 2012, and
therefore, it should be dismissed. In response, plaintiff concedes
that the Second Amended Complaint was untimely filed due to miscalendering by counsel’s secretary and requests that the Court
excuse the plaintiff under Fed. R. Civ. P. 6(b) and allow her to
proceed on her claims.
Under Fed. R. Civ P. 6(b), “[w]hen an act may or must be done
within a specified time, the court may, for good cause, extend the
time: . . . (B) on motion made after the time has expired if the
party failed to act because of excusable neglect.”
6(b)(1)(B).

Fed. R. Civ. P.

The Court finds excusable neglect under the Pioneer

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Inv. Serv. Co. V. Brunswick Assocs. Lt. P’ship, 507 U.S. 380, 395
(1993) balancing of factors. The Court will not dismiss the Second
Amended Complaint for a ten-day delay caused simply by human error
and where no prejudice to defendant has been shown or alleged.

The

motion to dismiss on this basis is denied.
B.

Failure to Exhaust
Defendant

next

asserts

that

plaintiff’s

Second

Amended

Complaint should be dismissed because plaintiff did not exhaust her
state administrative remedies under Fla. Stat. § 110.227 prior to
initiating her claims.
Statute is not applicable.

Plaintiff responds that this Florida
The Court agrees.

Plaintiff cites to no law which stands for the proposition
that

Fla.

Stat.

§

110.227's

administrative

remedies

must

exhausted prior to the initiation of a Title VII action.
proposition contradicts the plain language of the statute.

be

Such a
Under

Fla. Stat. § 110.227, an employee who has completed over a one-year
probationary period is a career services employee and may only be
suspended or dismissed for cause. Fla. Stat. § 110.227(1).

On the

face of the Second Amended Complaint, Neal-Myers was employed by
the DOC for well over one-year, and is a career service employee.
The statute further provides for a grievance procedure, as follows:
A grievance process shall be available to career service
employees who have satisfactorily completed at least a
1-year probationary period in their current positions. A
grievance is defined as the dissatisfaction that occurs
when an employee believes that any condition affecting
the employee is unjust, inequitable, or a hindrance to
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effective operation. Claims of discrimination and sexual
harassment or claims related to suspensions, reductions
in pay, demotions, and dismissals are not subject to the
career service grievance process. . .
Fla. Stat. § 110.227(4)(emphasis added).

Accordingly, defendant’s

argument is without merit.
Additionally, while a Title VII claim does have an exhaustion
of administrative remedies requirement, the required administrative
procedures are set forth in 42 U.S.C. § 2000e-5(e), not state law
procedural requirements.
The motion to dismiss on the basis of failure to exhaust
administrative remedies is denied.
C.

Improper Joinder of Claims
The DOC next asserts that the Second Amended Complaint should

be dismissed because Cross and Neal-Myers improperly joined their
claims.

Cross’s claims have been dismissed, and only Neal-Myers’s

claims remain.

The Court denies this portion of the motion to

dismiss as moot.
D.

Count I
1.

Fed. R. Civ. P. 8

The DOC asserts that Count I of the Second Amended Complaint
should be dismissed because Count I fails to put it on notice as to
the claims asserted against it in contravention of Fed. R. Civ. P.
8(a).

Specifically, the DOC asserts that it is unclear whether

Count I asserts a claim for disparate treatment, hostile work
environment, or both.

In response, plaintiff notes that in a
-8-

previous motion to dismiss, the DOC made this same complaint.
Therefore, plaintiff filed the Second Amended Complaint to make
clear that Count I seeks only to assert a disparate treatment
claim.

(Doc. #32, pp. 9-10.)

Title VII prohibits employers from discriminating against
individuals with respect to compensation, terms, conditions, or
privileges of employment because of the individual’s race, color,
religion, sex, or national origin.

42 U.S.C. § 2000e–2(a)(1).

This statute prohibits disparate treatment discrimination in which
an employer discriminates against an employee because of the
person’s membership in a protected group.

Reeves v. C.H. Robinson

Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc).
Disparate treatment discrimination can take two forms—a tangible
employment action or creation of a hostile work environment.

Id.;

Nurse “Be” v. Columbia Palms W. Hosp. LP., 490 F.3d 1302, 1308
(11th Cir. 2007).
To establish a prima facie case of disparate treatment by
tangible employment action, a plaintiff must show that “(1) she
belongs to a protected class; (2) she was qualified to do the job;
(3) she was subjected to adverse employment action; and (4) her
employer treated similarly situated employees outside her class
more favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008); see also McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.
2008) (similar).

To state a claim for hostile work environment

-9-

under Title VII, 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

employment,

and

(5)

to

alter

that

the

the

terms

employer

is

and

conditions

either

directly

vicariously responsible for the abusive work environment.

of
or

Miller

v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
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)).
Plaintiff’s assertion that she is claiming only disparate
treatment in Count I is not helpful because there are two forms of
disparate treatment and Count I arguably alleges both forms in a
single count.

Count I alleges disparate treatment under a hostile

work environment theory by alleging that plaintiff belongs to a
protected

group

(Doc.

#28,

¶38);

was

subject

to

unwelcome

harassment (id. at ¶43); the harassment was based on race (id. at
¶42);

the

environment

harassment
(id.

at

unreasonably
¶40);

responsible. (id. at ¶43.)

and

interfered

her

employer

with
is

her

work

vicariously

Count I also contains the elements for

disparate treatment under a tangible employment action theory when

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the factual allegations are incorporated by reference. (Id. at
¶37.)

The Court finds that it would promote clarity if the

separate claims in Count I are set forth in separate counts.
R. Civ. P. 10(b).

Fed.

Accordingly, Count I will be dismissed without

prejudice with leave to file an amended complaint setting forth the
two claims for discrimination not set forth in Count I in separate
counts.
2.

Fed. R. Civ. P. 12(b)(6)

Because Count I is being dismissed with leave to refile, the
Court

need

sufficiently

not

address

pleads

a

the

claim

separate
for

tangible employment action theory.

issue

disparate

of

whether

treatment

under

it
a

In the amended complaint to be

filed, plaintiff may more specifically plead the identification of
a “similarly situated employee.”
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss the Second Amended Complaint
(Doc. #29) is GRANTED IN PART AND DENIED IN PART:
1.

Defendant’s

request

to

dismiss

the

Second

Amended

Complaint as untimely and for failure to exhaust is DENIED.
2.

Defendant’s

request

to

dismiss

the

Second

Amended

Complaint for improper joinder of claims is DENIED AS MOOT.

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3.

Defendant’s request to dismiss Count I of the Second

Amended Complaint pursuant to Fed. R. Civ. P. 8 and 12(b)(6) is
GRANTED and Count I is DISMISSED WITHOUT PREJUDICE.
4. Plaintiff may file a Third Amended Complaint separating the
claims currently in Count I into two separate counts, and making
such other amendments as she deems appropriate, within TWENTY-ONE
(21) DAYS of the date of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
April, 2013.

Copies:
Counsel of record
Pro se parties

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18th

day of