Frautten v. Estancia At Bonita Bay, Inc. et al
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
Case No: 2:14-cv-332-29DNF
INC., a Florida corporation,
and TRINET HR CORPORATION, a
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,
For the reasons set forth below, the motion is denied in
part and taken under advisement in part.
Complaint on September 21, 2014, against Estancia at Bonita Bay
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
(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
(Doc. #27, pp. 1-2.)
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
(Id. at pp. 8-9.)
As an initial matter, both sides refer at times to the issues
as involving subject matter jurisdiction.
The subject matter
Exhaustion of administrative remedies is a pre-condition to filing
affirmative defense unrelated to jurisdiction.
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
Arbaugh v. Y&H Corp., 546 U.S. 500,
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).
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).
When deciding a motion to
dismiss for failure to exhaust administrative remedies, a court
may resolve factual disputes.
Bryant, 530 F.3d at 1374.
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).
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
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).
complaint is limited by the scope of the EEOC investigation which
Penaloza v. Target Corp., 549 F. App’x 844, 848
(11th Cir. 2013) (citations and internal quotations omitted).
abatement that should be raised in a motion to dismiss.
530 F.3d at 1374–75 (addressing the Prison Litigation Reform Act's
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
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).
administrative remedies and is therefore entitled to bring this
(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
Ordinarily, a party not named in the EEOC charge cannot
be sued in a subsequent civil action.
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.
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
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.
prejudice turn on whether the unnamed and named parties to the
EEOC complaint are determined to be a single employer.
Staff Acquisition, Inc., 41 F. Supp. 2d 1294, 1299 (M.D. Ala.
promulgated by the National Labor Relations Board.
centralized control of labor relations; and (4) common ownership
and financial control.
McKenzie v. Davenport–Harris Funeral Home,
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
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
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.
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
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
Defendants’ Motion to Dismiss (Doc. #24) is DENIED as
Defendants’ Amended Motion to Dismiss Counts I and III
against TriNet (Doc. #25) is DENIED in part and taken under
advisement in part.
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
DONE AND ORDERED at Fort Myers, Florida, this
Counsel of record
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