Frautten v. Estancia At Bonita Bay, Inc. et al

Filing 36

OPINION AND ORDER denying as moot 24 Defendants' Motion to Dismiss; denying in part and taking under advisement in part 25 Defendants' Amended Motion to Dismiss. The parties may engage in discovery limited to the issue of the exhaustion of remedies, and shall each file a supplemental memorandum within sixty (60) days of the date of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 4/17/2015. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DENNIS
FRAUTTEN,
individual,

an

Plaintiff,
v.

Case No: 2:14-cv-332-29DNF

ESTANCIA
AT
BONITA
BAY
CONDOMINIUM
ASSOCIATION,
INC., a Florida corporation,
and TRINET HR CORPORATION, a
California corporation,
Defendants.

OPINION AND ORDER
This matter comes before the Court on defendants’ Amended
Motion to Dismiss (Doc. #25) filed on November 20, 2014. 1 Plaintiff
filed a Response to Defendants’ Motion (Doc. #27) on November 28,
2014.

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

part and taken under advisement in part.
I.
Dennis

Frautten

(plaintiff)

filed

a

four-count

Amended

Complaint on September 21, 2014, against Estancia at Bonita Bay
Condominium
Corporation

1

Association,
(TriNet)

(Doc.

Inc.,
#17)

(Estancia),
setting

and

forth

the

TriNet

HR

following

Defendants’ Motion to Dismiss (Doc. #24), filed November 20,
2014, will be denied as moot.

claims: (Count I) unlawful disability discrimination in violation
of the Americans with Disabilities Act (ADA); (Count II) unlawful
disability discrimination in violation of the Florida Civil Rights
Act (FCRA); (Count III) age discrimination in violation of the
federal Age Discrimination in Employment Act (ADEA); and (Count
IV) age discrimination in violation of the FCRA. Plaintiff alleges
that he is a member of protected classes, being both over 40 years
of age and having or being perceived to have a disability, and
that the defendants terminated his employment based on those
conditions.

(Id. ¶¶ 23-27.)

Defendants’ Amended Motion to Dismiss Counts I and III against
TriNet argues that plaintiff failed to exhaust all administrative
remedies against defendant TriNet, and has therefore failed to
state a claim for which relief can be granted.

(Doc. #25, p. 2.)

Defendants further argue that upon dismissal of the claims against
defendant TriNet, Counts I and III against defendant Estancia must
be dismissed for lack of subject matter jurisdiction because
Estancia does not employ enough workers to meet the definition of
an “employer” under the ADA or the ADEA.

(Id. at p. 4.)

Plaintiff responds that Estancia and TriNet are so highly
integrated that they are a single employer, which together meets
the

jurisdictional

employees.

threshold

for

(Doc. #27, pp. 1-2.)

2

the

prerequisite

number

of

Plaintiff also argues that the

Notice of Right to Sue Estancia should suffice as Notice of Right
to Sue TriNet.

(Id. at pp. 6-8.)

Lastly, plaintiff contends that

even if a Notice of Right to Sue TriNet was not properly received,
he should be allowed to proceed with his suit for equitable
reasons.

(Id. at pp. 8-9.)
II.

As an initial matter, both sides refer at times to the issues
as involving subject matter jurisdiction.
jurisdiction

of

this

court

is

not

The subject matter

implicated

in

this

case.

Exhaustion of administrative remedies is a pre-condition to filing
suit,

and

failure

to

exhaust

administrative

affirmative defense unrelated to jurisdiction.

remedies

is

an

Bryant v. Rich,

530 F.3d 1368, 1374 (11th Cir. 2008); Forehand v. Fla. State Hosp.,
89 F.3d 1562, 1569 (11th Cir. 1996).

Whether an employer has a

sufficient number of employees to qualify as an “employer” under
the

statute

is

an

element

jurisdictional prerequisite.

of

the

cause

of

action,

not

a

Arbaugh v. Y&H Corp., 546 U.S. 500,

516 (2006).
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

3

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
normally accepts all factual allegations in a complaint as true
and takes them in the light most favorable to plaintiff.
v. Pardus, 551 U.S. 89, 94 (2007).

Erickson

When deciding a motion to

dismiss for failure to exhaust administrative remedies, a court
may resolve factual disputes.

Bryant, 530 F.3d at 1374.

“Legal

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).
III.
A.

Exhaustion of Administrative Remedies Against TriNet
Both sides agree that before a party may bring a cause of

action for violation of either the ADA or the ADEA, he must first
file a timely complaint against the discriminating entity with the
Equal

Employment

Opportunity

Commission

4

(EEOC)

and

receive

a

Notice of Right to Sue from the EEOC.

Maynard v. Pneumatic Prods.

Corp., 256 F.3d 1259, 1262 (11th Cir. 2001); 29 U.S.C. § 626(e).
In

addition

to

being

a

pre-condition

for

suit,

a

“judicial

complaint is limited by the scope of the EEOC investigation which
can

reasonably

discrimination.”

be

expected

to

grow

out

of

the

charge

of

Penaloza v. Target Corp., 549 F. App’x 844, 848

(11th Cir. 2013) (citations and internal quotations omitted).
Exhaustion

of

administrative

remedies

is

a

matter

abatement that should be raised in a motion to dismiss.

in

Bryant,

530 F.3d at 1374–75 (addressing the Prison Litigation Reform Act's
exhaustion requirements).

It is permissible for a district court

to consider facts outside of the pleadings and resolve factual
disputes, so long as the factual disputes do not decide the merits
and the parties are given sufficient opportunity to develop a
record.

Id. at 1376.

Deciding a motion to dismiss for failing to exhaust
administrative remedies is a two-step process. First,
the court must look to the factual allegations in the
defendant’s motion and the plaintiff’s response, taking
the plaintiff’s version of the facts as true to the
extent that it conflicts with that of the defendant. If
the complaint is not subject to dismissal at this step,
the court must then make specific findings to resolve
the parties’ factual disputes, and determine whether the
defendant bore its burden of proving that the plaintiff
failed to exhaust his administrative remedies.
Basel v. Secretary of Defense, 507 F. App’x 873, 874-75 (11th Cir.
2013) (citation omitted).

5

Plaintiff

summarily

alleges

that

he

has

exhausted

his

administrative remedies and is therefore entitled to bring this
action.

(Doc. #17, ¶¶ 44, 58, 72, 86.)

These allegations are

sufficient under Fed. R. Civ. P. 9(c), which states that “it
suffices to allege generally that all conditions precedent have
occurred or been performed.”
Defendants assert that despite the conclusory allegations,
plaintiff did not in fact exhaust his administrative remedies as
to defendant TriNet.

Defendants suggest that TriNet was not named

in the complaint filed with the EEOC and state that TriNet was not
named in the EEOC’s right to sue letter.

The right to sue letter

attached to the Amended Complaint confirms that no reference is
being made to TriNet.

Plaintiff never explicitly states that

TriNet was named in his complaint with the EEOC, and has not
attached a copy of his EEOC complaint.

Rather, plaintiff asserts

that TriNet and Estancia were a single employer so that naming one
was sufficient.
Ordinarily, a party not named in the EEOC charge cannot
be sued in a subsequent civil action.
This naming
requirement serves to notify the charged party of the
allegations and allows the party an opportunity to
participate in conciliation and voluntarily comply with
the requirements of Title VII.
However, courts
liberally construe this requirement. Where the purposes
of the Act are fulfilled, a party unnamed in the EEOC
charge may be subjected to the jurisdiction of federal
courts. A party not named in an EEOC charge generally

6

cannot be sued in a subsequent civil action, but may be
subjected to the jurisdiction of the federal courts when
the purposes have been fulfilled.
Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th
Cir. 1994) (citations omitted).

In determining whether these

purposes have been met, courts look to several factors, including:
(1) the similarity of interest between the named party and the
unnamed party; (2) whether the plaintiff could have ascertained
the identity of the unnamed party at the time the EEOC charge was
filed; (3) whether the unnamed parties received adequate notice of
the charges; (4) whether the unnamed parties had an adequate
opportunity to participate in the reconciliation process; and (5)
whether the unnamed party actually was prejudiced by its exclusion
from the EEOC proceedings.
Adequate

notice,

Id.

adequate

opportunity,

and

absence

of

prejudice turn on whether the unnamed and named parties to the
EEOC complaint are determined to be a single employer.

Whitson v.

Staff Acquisition, Inc., 41 F. Supp. 2d 1294, 1299 (M.D. Ala.
1999).

In

employer,”

determining
the

Eleventh

whether
Circuit

two
has

entities

are

adopted

promulgated by the National Labor Relations Board.
(1)

interrelations

of

operation;

(2)

common

the

a

“single
criteria

These include

management;

(3)

centralized control of labor relations; and (4) common ownership
and financial control.

McKenzie v. Davenport–Harris Funeral Home,

7

834 F.2d 930, 933 (11th Cir. 1987).

A “joint employer” arises

when “two entities contract with each other for the performance of
some task, and one company retains sufficient control over the
terms

and

employees.”

conditions

of

employment

of

the

other

company’s

Lyes v. City Of Riviera Beach, Fla., 166 F.3d 1332,

1342 (11th Cir. 1999).
The Court is unable to resolve the issue as the record
currently stands.

The Court will direct that limited discovery be

allowed as to the satisfaction of the condition precedent, and
allow the parties to submit supplemental memoranda.
B.

Equitable Modification of Condition Precedent
Plaintiff argues that dismissal of claims against TriNet

would be inequitable. In support, plaintiff cites Fouche v. Jekyll
Island–State Park, 713 F.2d 1518, 1526 (11th Cir. 1983), in which
the court waived the Right to Sue Notice because the Attorney
General had refused to issue it.
relevant to the instant case.

The holding in Fouche is not

Plaintiff has made no statement or

showing that he was unable to obtain a Right to Sue Notice from
the EEOC in reference to TriNet, nor is there any evidence that
the EEOC made a clerical error by failing to mention TriNet on the
Notice for Estancia.

In fact, the EEOC dismissal was based on the

sole fact that Estancia did not have enough employees to qualify
as an “employer” under the ADA and ADEA, indicating that the EEOC

8

was unaware that TriNet was a potential defendant.

There are no

circumstances stated that justify equitable modification of the
condition precedent of the Right to Sue Notice.
Accordingly, it is now
ORDERED:
1.

Defendants’ Motion to Dismiss (Doc. #24) is DENIED as

moot.
2.

Defendants’ Amended Motion to Dismiss Counts I and III

against TriNet (Doc. #25) is DENIED in part and taken under
advisement in part.
3.

The parties may engage in discovery limited to the issue

of the exhaustion of remedies, and shall each file a supplemental
memorandum within sixty (60) days of the date of this Opinion and
Order.
DONE AND ORDERED at Fort Myers, Florida, this
April, 2015.

Copies:
Counsel of record

9

17th

day of