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

Filing 43

OPINION AND ORDER denying 25 Defendants' Amended Motion to Dismiss; denying 39 Defendants' Supplemental Motion to Dismiss. See Opinion and Order for details. Signed by Judge John E. Steele on 7/16/2015. (MAB)

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

an

Plaintiff,
v.

Case No: 2:14-cv-332-FtM-29CM

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 review of defendants’
Amended Motion to Dismiss (Doc. #25) filed on November 20, 2014.
Plaintiff filed a Response to Defendants’ Amended Motion to Dismiss
(Doc.

#27)

on

November

28,

2014.

After

conducting

limited

discovery, defendants filed a Supplemental Motion to Dismiss (Doc.
#39) on June 16, 2015, to which plaintiff filed a Response (Doc.
#42) on July 9, 2015.

For the reasons set forth below, the motions

are denied.
I.
On September 21, 2014, Dennis Frautten (plaintiff) filed a
four-count

Amended

Complaint

against

Estancia

at

Bonita

Bay

Condominium Association, Inc. (Estancia) and TriNet HR Corporation

(TriNet)

setting

disability

forth

the
in

discrimination

following
violation

claims:
of

the

(I)

unlawful

Americans

with

Disabilities Act (ADA); (II) unlawful disability discrimination in
violation

of

the

Florida

Civil

Rights

Act

(FCRA);

(III)

age

discrimination in violation of the federal Age Discrimination in
Employment Act (ADEA); and (IV) age discrimination in violation of
the FCRA.

(Doc. #17.)

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.)
On November 20, 2014, defendants filed an Amended Motion to
Dismiss arguing that Counts I and III against TriNet should be
dismissed

because

plaintiff

administrative remedies.

failed

(Doc. #25.)

to

exhaust

all

of

his

Due to the limited record,

the Court directed the parties to engage in limited discovery on
this issue.

(Doc. #36, p. 8.)

On June 16, 2015, defendants filed

a Supplemental Motion to Dismiss arguing that plaintiff failed to
exhaust his administrative remedies because the Equal Employment
Opportunity

Commission

(EEOC)

never

investigate the claims against TriNet.

had

an

opportunity

to

(Doc. #39, pp. 8-9.)

II.
Before instituting an action under the ADA or the ADEA, a
plaintiff must file a charge of discrimination with the EEOC and

2

receive a statutory notice of the right to sue the respondent named
in the charge.

Burnett v. City of Jacksonville, 376 F. App’x 905,

906 (11th Cir. 2010) (citing Forehand v. Fla. State. Hosp. at
Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996)).

“The purpose

of this exhaustion requirement is that the [EEOC] should have the
first

opportunity

to

investigate

the

alleged

discriminatory

practices to permit it to perform its role in obtaining voluntary
compliance and promoting conciliation efforts.”

Gregory v. Ga.

Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).

It

follows that a “plaintiff’s judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.”

Id. at 1280 (citing

Alexander v. Fulton Cnty. Ga., 207 F.3d 1303, 1332 (11th Cir.
2000)).

Judicial claims that “amplify, clarify, or more clearly

focus” the allegations in the EEOC charge are permitted, but the
plaintiff cannot allege new acts of discrimination.
80.

Nevertheless,

courts

are

“extremely

Id. at 1279-

reluctant

to

allow

procedural technicalities to bar claims brought under [the ADA or
the ADEA]” and should construe an EEOC complaint broadly. Penaloza
v. Target Corp., 549 F. App’x 844, 848 (11th Cir. 2013) (quoting
Gregory, 355 F.3d at 1280).
In this matter, plaintiff filed a Charge of Discrimination
with the EEOC on or about August 26, 2013, asserting age and
disability

discrimination

against

3

Estancia

and

TriNet’s

predecessor, Grevity HR, Inc. (Grevity). (Doc. #42-1.) The Charge
states, in relevant part, that plaintiff worked for Estancia, but
was also employed by Grevity “as it supplies my services to
Estancia by written contract and retains co-employer rights with
Estancia.”

(Id.)

After the Charge was filed, the EEOC issued a

single charge number encompassing the claims against Estancia and
TriNet/Grevity, and assigned the case EEOC Investigator Delia
Hernandez (Hernandez).

(Doc. #39-5, pp. 6-8.)

On October 23, 2013, Hernandez held a conference call with
plaintiff

and

Evelyn

Brown

(Brown),

a

paralegal

employed

by

plaintiff’s counsel, to discuss the respondents identified in the
Charge of Discrimination.

(Doc. #39-1, p. 2; Doc. #39-2, p. 1.)

After the call, Hernandez sent Brown an email stating, in relevant
part, that “I want to confirm that Mr. Frautten advised both of us
that his employer (who paid his salary) was Estancia at Bonita
Bay; and, that Grevity HR, Inc. (which also appears on the instant
charge) is the HR for this Respondent.

Accordingly the assumption

that Grevity HR, Inc. was another Respondent being charged is
inaccurate.

Thank you for helping me clear this matter up.”

#39-5, p. 48.)

(Doc.

Hernandez noted that TriNet/Grevity was not a

second employer on the investigation log (Id. at 8), but never
relayed her findings to Estancia or TriNet/Grevity (Doc. #39, p.
7).

4

Estancia

and

TriNet/Grevity

jointly

filed

a

position

statement with the EEOC on November 27, 2013, asserting that the
claims against them should be dismissed in their entirety because
Estancia does not employ enough workers to meet the definition of
“employer” under the ADA or the ADEA and TriNet/Grevity did not
exercise sufficient day-to-day control over plaintiff’s work to be
considered a joint employer.
evidence,

Hernandez

(Doc. #42-3.)

recommended

that

After reviewing the

plaintiff’s

Charge

of

Discrimination be dismissed because Estancia did not have fifteen
or more employees for twenty or more calendar weeks in the current
or

preceding

years.

(Doc.

#39-5,

p.

12.)

Hernandez’s

recommendation was approved on March 13, 2014, and plaintiff’s
Charge of Discrimination was dismissed for lack of subject matter
jurisdiction.

(Id.)

A Dismissal and Notice of Rights was mailed

to plaintiff, plaintiff’s counsel, and Estancia’s counsel on March
21, 2014.

(Doc. #42-4.)

Although the Dismissal and Notice of

Rights did not mention TriNet/Grevity, it did state that the EEOC
was closing the entire file.
Based

on

the

foregoing,

the

Court

finds

that

plaintiff

exhausted his administrative remedies as to both Estancia and
TriNet.

Plaintiff

investigate
timely

the

Charge

TriNet/Grevity.

provided

alleged
of

the

EEOC

discriminatory

Discrimination

with

an

opportunity

practices
against

by

to

filing

Estancia

a

and

The EEOC was also able perform its role in

5

obtaining voluntary compliance as both defendants were notified of
the proceedings.
was satisfied.

Thus, the purpose of the exhaustion requirement
The fact that the Dismissal and Notice of Rights

did not mention TriNet/Grevity is of little import as the entire
file was closed.

Furthermore, it would be unfair to allow a

procedural technicality such as this to bar plaintiff’s claims
given that TriNet was not prejudiced by its exclusion from the
Dismissal and Notice of Rights.

See Virgo v. Riviera Beach

Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994); Fouche v.
Jekyll Island-State Park Auth., 713 F.2d 1518, 1526 (11th Cir.
1983).

Defendants’ motions are therefore denied.

Accordingly, it is now
ORDERED:
Defendants’

Amended

Motion

to

Dismiss

(Doc.

#25)

and

Supplemental Motion to Dismiss (Doc. #39) are DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2015.

Copies:
Counsel of record

6

16th

day of