Reidy v. State Of Florida et al
Filing
35
OPINION and ORDER denying 31 Defendant's Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Cause of Action. See Opinion and Order for details. Signed by Judge John E. Steele on 8/13/2014. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELLE REIDY,
Plaintiff,
v.
Case No: 2:13-cv-589-FtM-29DNF
STATE OF FLORIDA,
DEPARTMENT OF CORRECTIONS,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss Plaintiff's Amended Complaint for Failure to
State a Cause of Action (Doc. #31) and Memorandum of Law in Support
(Doc. #32) filed on February 10, 2014.
Plaintiff filed a Response
to Defendant's Motion to Dismiss (Doc. #34) and Memorandum of Law
in Opposition (Doc. #33) on February 24, 2014.
For the reasons
stated below, the motion is denied.
I.
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).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
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.”
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
plausible.”
Iqbal,
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
Iqbal, 556 U.S. at 679.
2
rise
to
an
II.
Plaintiff Michele Reidy (Plaintiff or Reidy) has filed a
three-count
Amended
Complaint
(Doc.
Department of Corrections (DOC).
#28)
against
the
Florida
Reidy asserts that the DOC
unlawfully discriminated and retaliated against her in violation
of Title VII. (Doc. #28, ¶¶ 21-34.)
Reidy further alleges that
the DOC negligently retained employees whom the DOC knew had
sexually harassed and were sexually harassing Reidy, as well as
unlawfully discriminating and retaliating against her. (Id. at ¶¶
35-43.)
The
underlying
facts,
as
set
forth
in
the
Amended
Complaint, are as follows.
In or about the end of 2010, Michele Reidy, a corrections
officer with the DOC, began working at the DOC’s Fort Myers Work
Camp (Camp) in Lee County, Florida. (Id. at ¶¶ 10-11.)
Reidy
asserts that shortly after arriving at the Camp, the DOC, through
Camp supervisors and employees, discriminated against her based on
sex, creating a pervasive, hostile work environment. (Id. at ¶¶
12-13.)
Reidy asserts that Camp supervisors and co-workers repeatedly
demeaned and insulted her with a steady stream of verbal and
physical abuse.
DOC employees repeatedly made sexual gestures,
sexual propositions and requested sexual favors from Reidy. (Id.
at ¶¶ 15.)
[Reidy]
up
Plaintiff asserts that DOC officers attempted to “set
with
an
inmate.”
(Id.)
3
Further,
DOC
employees
repeatedly called Reidy a “bitch,” a “whore,” and accused her of
having sex with co-workers and Camp inmates. (Id.)
On multiple
occasions, DOC employees removed all the chairs from the lunch
room, and told Reidy: “You are a fucking woman and you don’t need
to sit for your lunch break.
You should be barefoot and pregnant
and not working.” (Id.)
Reidy
further
asserts
that
Corrections
Officer
Waigand
(Waigand) sexually assaulted her by groping her in front of coworkers. (Id.)
On another occasion, Waigand told Reidy: “If I
wasn’t married, we would be fucking all the time, wouldn’t we?”
(Id.) In addition, DOC employees keyed Reidy’s car multiple times,
(Id.), and gave her unfavorable work assignments when she refused
to go on a date with a co-worker. (Id.)
Plaintiff further asserts
that her specific allegations are non-exhaustive. (Id. at ¶¶ 15,
17.)
In sum, plaintiff asserts that repeated and pervasive sexual
harassment created an objectively and subjectively hostile work
environment.
(Id. at ¶¶ 23-24.)
Reidy repeatedly filed sexual harassment incident reports
with the DOC as a result of the severe and pervasive sexual
harassment.
ignored.
Reidy
(Id. at ¶ 16.)
(Id. at ¶¶ 39, 42.)
cross-filed
Charges
Reidy asserts that the reports were
Finally, on or about May 18, 2011,
of
Discrimination
Employment
Opportunity
Commission
Commission
on
Relations
Human
4
(EEOC)
(FCHR)
with
and
the
the
alleging
Equal
Florida
unlawful
discrimination and retaliation in violation of Title VII.
¶¶ 6, 18, 25.)
(Id. at
Plaintiff asserts that, as a result, DOC employees
retaliated against her by escalating the existing pattern of sexual
harassment. (Id. at ¶¶ 18, 32.)
Reidy asserts that the DOC work
environment became so intolerable that her resignation in February
2012 was a constructive discharge.
(Id. at ¶ 20.)
III.
Defendant now moves to dismiss the Amended Complaint, arguing
that each count fails to state a claim upon which relief could be
granted.
(Doc.
adequately pled.
#31.)
Reidy
(Doc. #33.)
responds
that
all
counts
are
The Court will address each count
in turn.
A.
Title VII Discrimination (Count I)
Count I alleges unlawful discrimination by the DOC, its agents
and employees in violation of Title VII via the creation of a
hostile work environment.
“Title VII prohibits the creation of a
hostile work environment.”
Vance v. Ball State Univ., 133 S. Ct.
2434, 2441 (2013).
To establish a prima facie case of hostile
working environment premised upon sexual harassment, the plaintiff
must show that: (1) she belongs to a protected class; (2) she was
subjected to “unwelcome” sexual harassment; (3) she was harassed
based on her sex; (4) the harassment affected a term, condition,
or privilege of employment in that it was sufficiently severe or
pervasive to alter the conditions of the victim's employment and
5
create an abusive working environment; and (5) the employer is
liable for the harassment. Mendoza v. Borden, Inc., 195 F.3d 1238,
1245 (11th Cir. 1999).
1.
Membership In A Protective Class
Reidy has adequately pled that, as a woman, she is a member
of a protected class.
See Henson v. City of Dundee, 682 F.2d 897,
903 (11th Cir. 1982) (“As in other cases of sexual discrimination,
this requires a simple stipulation that the employee is a man or
a woman.”).
Accordingly, this element of the prima facie case is
adequately pled.
2.
Unwelcome Sexual Harassment
The definition of sexual harassment under Title VII is well
established.
“The E.E.O.C. regulations helpfully define the type
of conduct that may constitute sexual harassment: sexual advances,
requests for sexual favors, and other verbal or physical conduct
of a sexual nature . . . .”
Henson, 682 F.2d at 903 (quoting 29
C.F.R. § 1604.11(a)).
Here,
Reidy
asserts
that
on
multiple
occasions,
her
supervisors, Sergeant Nazario (Nazario) and Lieutenant Havens
(Havens), asked her to “wear a white t-shirt when it rained so
that they could see her breasts.” (Doc. #28 at ¶ 15.)
Reidy
asserts that a co-worker, Waigand, groped her in front of coworkers, and that another co-worker, Corrections Officer Lance
Henderson (Henderson), demeaned her and gave her unfavorable work
6
assignments because she repeatedly refused to go on a date with
him. (Id.) Plaintiff further recites a litany of her supervisors’
and
co-workers’
derogatory
physical conduct.
(Id.)
and
sexually
explicit
verbal
and
Taken as true, these specific, factual
allegations unambiguously constitute sexual harassment.
Furthermore, Reidy adequately pleads that her co-workers’
conduct was unwelcome.
Plaintiff states that she directly told
her co-workers that she objected to their conduct, and she alleges
that
she
filed
multiple
workers’ behavior.
incident
reports
(Id. at ¶¶ 15-16.)
protesting
her
co-
Accordingly, this element
of the prima facie case is adequately pled.
3.
Harassment
On Account Of Plaintiff’s Sex
“In proving a claim for a hostile work environment due to
sexual harassment . . . the plaintiff must show that but for the
fact of her sex, she would not have been the object of harassment.”
Henson, 682 F.2d at 904.
“In the typical case in which a male
supervisor makes sexual overtures to a female worker, it is obvious
that the supervisor did not treat male employees in a similar
fashion.”
Id.
“It will therefore be a simple matter for the
plaintiff to prove that but for her sex, she would not have been
subjected to sexual harassment.”
Id.
Here, Reidy asserts that various DOC employees explicitly
told her that male co-workers targeted her, along with other female
corrections officers, because of her sex. (Doc. #28 at ¶ 15.)
7
Plaintiff asserts she was told that “every single female that has
ever worked this shift with Nazario, Henderson, and Davis has been
run off.
They have harassed every one of the women to the point
where they couldn’t take it anymore.” (Id.)
These assertions,
considered alongside the alleged sexualized verbal and physical
conduct of Reidy’s co-workers, adequately allege that Reidy was
harassed on account of her sex.
4.
Severe And Pervasive Discrimination
“Although Title VII's prohibition of sex discrimination
clearly includes sexual harassment, Title VII is not a federal
‘civility code.’”
offhand
Mendoza, 195 F.3d at 1245.
comments,
and
isolated
“[S]imple teasing,
incidents
(unless
extremely
serious) will not amount to discriminatory changes in the terms
and conditions of employment.”
Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (internal citation and quotation omitted).
Rather,
environment
to
establish
under
Title
the
existence
VII,
sexual
of
a
hostile
harassment
must
work
be
“sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.”
Mendoza, 195 F.3d at 1245-46.
“Conduct that is not severe or
pervasive enough to create an objectively hostile or abusive work
environment — an environment that a reasonable person would find
hostile or abusive — is beyond Title VII's purview.”
Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
8
Harris v.
“Likewise, if the
victim
does
not
subjectively
perceive
the
environment
to
be
abusive, the conduct has not actually altered the conditions of
the victim's employment, and there is no Title VII violation.”
Id. at 21-22.
As
detailed
repeated,
above,
demeaning,
Reidy
makes
sexually
multiple
explicit
allegations
verbal
and
of
physical
harassment by multiple supervisors and co-workers from the end of
2010 until her alleged constructive discharge on or about February,
2012. (Doc. #28 at ¶ 15.)
Taken as true, these allegations show
a long-lasting and wide-spread pattern of pervasive harassment
that was both subjectively and objectively abusive.
Accordingly,
the Court finds that this element of is adequately pled.
5.
Employer Liability
An employer is liable “for an actionable hostile environment
created by a supervisor with immediate (or successively higher)
authority over the employee.”
Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1278 (11th Cir. 2002).
Where a supervisor’s
harassment of an employee “culminates in a tangible employment
action,” an employer is strictly liable. Pa. State Police v.
Suders, 542 U.S. 129, 143 (2004).
A tangible employment action is
“a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.”
Vance,
133
S.
Ct.
9
at
2443
(quotation
omitted).
Constructive discharge is an adverse employment decision. Poole v.
Country
Club
of
Columbus,
Inc.,
129
F.3d
551,
553
n.2.
Additionally, even if a supervisor’s harassment of an employee
does not culminate in a tangible employment action, the employer
will
nonetheless
be
vicariously
liable
for
the
supervisor’s
actions unless the employer can assert an affirmative defense.
Suders, 542 U.S. at 145-46.
On the other hand, “[w]here the perpetrator of the harassment
is merely a co-employee of the victim, the employer will be held
directly liable if it knew or should have known of the harassing
conduct but failed to take prompt remedial action.”
F.3d at 1278.
Miller, 277
“Thus, a victim of coworker harassment must show
either actual knowledge on the part of the employer or conduct
sufficiently severe and pervasive as to constitute constructive
knowledge to the employer.”
Id.
Here, Reidy adequately pleads a tangible employment action.
Reidy asserts that the ongoing sexual harassment at the DOC Camp
“became so intolerable that any reasonable person . . . would have
felt compelled to resign.” (Doc. #28 at ¶ 20.)
As a result,
plaintiff asserts that she was constructively discharged when she
resigned on or about February of 2012. (Id.)
discussed
above,
Plaintiff’s
specific
For the reasons
allegations
of
sexual
harassment plausibly support a charge of constructive discharge.
Arbaugh v. Y&H Corp., 546 U.S. 500, 507 n.6 (2006) (“[C]onstructive
10
discharge
compensable
under
Title
VII
includes
an
employee's
departure due to sexual harassment that renders working conditions
so intolerable that a reasonable person would have felt compelled
to
resign.”)
(quotation
omitted).
Accordingly,
Reidy
has
plausibly pled that the DOC is strictly liable for the harassing
conduct of her supervisors, or, in the alternative, that the DOC
is vicariously liable subject to affirmative defenses. Suders, 542
U.S. at 143-46.
In addition, Reidy has plausibly pled that the DOC is liable
for
her
co-workers’
sexually
harassing
conduct
because
Reidy
alleges she filed numerous incident reports with the DOC in which
she
objected
to
her
co-workers
conduct.
(Doc.
#28
at
16.)
Assuming this is true, the DOC knew or should have known of the
offensive,
severe,
and
pervasive
sexual
harassment.
If,
as
alleged, the DOC failed to take any remedial action, the DOC would
be liable for its employees’ conduct.
Miller, 277 F.3d at 1278.
Accordingly, the Court finds that Reidy has adequately pled
each element of her Title VII discrimination claim.
B.
Title VII Retaliation (Count II)
To assert a prima facie case of retaliation under Title VII,
a plaintiff must show that: “(1) she engaged in an activity
protected under Title VII; (2) she suffered an adverse employment
action; and (3) there was a causal connection between the protected
11
activity and the adverse employment action.” Crawford v. Carroll,
529 F.3d 961, 970 (11th Cir. 2008).
The DOC’s sole argument with respect to Count II is that Reidy
has not alleged an adverse employment action.
(Doc. #32, p. 5.)
However, Plaintiff plausibly alleges that the DOC work environment
became so intolerable that she was constructively discharged,
(Doc. #28 at ¶ 20), which is undeniably an adverse employment
action.
Poole, 129 F.3d at 553 n.2.
Accordingly, Count II will
not be dismissed.
C.
Negligent Retention (Count III)
“Negligent
retention
occurs
when,
during
the
course
of
employment, the employer becomes aware or should have become aware
of problems with an employee that indicated his unfitness, and the
employer fails to take further action such as investigating,
discharge, or reassignment.”
Degitz v. S. Mgmt. Servs., Inc., 996
F. Supp. 1451, 1461 (M.D. Fla. 1998).
Additionally, as with any
tort premised upon negligence, a plaintiff must allege facts which
show that (1) the employer owed a duty to the plaintiff; (2) the
employer breached that duty; (3) the breach proximately caused
plaintiff’s injuries or damages; and (4) the plaintiff suffered
damages.
Malicki v. Doe, 814 So. 2d 347, 361 & n.15 (Fla. 2002).
Concerning the first element, employers owe a duty to hire
and retain safe and competent employees.
2d 435, 440 (Fla. 2d DCA 1986).
12
Garcia v. Duffy, 492 So.
That duty is owed, at the very
least, “to anyone legally on the employer’s premises whose rights
were trespassed against by the employee.”
Id. at 439.
Reidy was
a DOC employee and, therefore, was within the scope of the DOC’s
duty to retain safe and competent employees.
Turning to the second element, a breach occurs “where the
employer knows or should know of an employee's unfitness and fails
to
take
further
reassignment.”
action
such
as
investigating,
discharge
or
Malicki, 814 So. 2d at 362 (quotation omitted).
Here, Reidy asserts that she repeatedly filed incident reports
with the DOC, which placed the DOC on notice of its employees’
offensive and tortious conduct. (Doc. #28 at ¶ 16, 37.)
Reidy
further alleges that the DOC failed to take any disciplinary or
investigative action as a result of her reports.
(Id. at ¶ 39.)
Accordingly, Reidy has adequately alleged that the DOC breached
its duty.
Concerning the third and fourth elements, Reidy alleges that
as a result of the DOC’s negligent retention, its employees were
allowed to continue their offensive and tortious conduct, thereby
causing her “embarrassment, anxiety, economic loss, humiliation,
pain and suffering, loss of enjoyment of life and severe emotional
distress.”
(Doc. #28 at ¶ 42.)
Accordingly, Reidy has adequately
alleged that she suffered damages as a direct result of the DOC’s
failure
to
discipline,
discharge,
or
reassign
its
offending
employees. In addition, “[u]nder Florida law, the underlying wrong
13
allegedly committed by an employee in a negligent supervision or
negligent retention claim must be based on an injury resulting
from a tort which is recognized under common law.”
Scelta v.
Delicatessen Support Servs., Inc., 57 F. Supp. 2d 1327, 1348 (M.D.
Fla. 1999).
Reidy meets this requirement as well because, as
detailed above, her allegations plausibly state claims against her
co-workers for battery and intentional infliction of emotional
distress.
(Doc. #28, ¶ 15.)
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Plaintiff's Amended Complaint
for Failure to State a Cause of Action (Doc. #31) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
August, 2014.
Copies: Counsel of record
14
13th
day of
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