Danielle-Diserafino v. District School Board of Collier County, Florida
Filing
20
OPINION AND ORDER granting in part and denying in part 8 Defendant's Motion to Dismiss Plaintiff's Complaint or for a More Definite Statement. The Motion is denied as to Count I. As to Count II, the Court grants in part the Motion f or a More Definite Statement and denies as moot the Motion to Dismiss. Plaintiff has fourteen (14) days to file an Amended Complaint clearly setting forth the protected workers' compensation activity that forms the basis for the retaliation claim and any relevant associated dates. See Opinion for details. Signed by Judge John E. Steele on 8/11/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GIGI DANIELLE-DISERAFINO,
Plaintiff,
v.
Case No: 2:15-cv-569-FtM-29CM
DISTRICT SCHOOL BOARD
COLLIER COUNTY, FLORIDA,
OF
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion to
Dismiss Plaintiff’s Complaint or for a More Definite Statement
(Doc. #8) filed on January 26, 2016.
Plaintiff filed a Response
in Opposition (Doc. #15) on March 14, 2016.
For the reasons stated
below, Defendant’s Motion is granted in part and denied in part.
I.
Plaintiff
Gigi
Danielle-DiSerafino
has
sued
her
former
employer, the District School Board of Collier County, Florida
(Defendant),
for
alleged
violations
of
the
Americans
with
Disabilities Act (ADA), 42 U.S.C. § 12102 et seq., and of Fla.
Stat. § 440.205 - the anti-retaliation provision of Florida’s
Workers’ Compensation Law.
Her Complaint (Doc. #1), filed on
September 21, 2015, alleges that she suffered a head injury on
January 4, 2005, while participating in an obstacle course at work,
which caused cognitive impairment, fibromyalgia, and repetitive
upper-body motion disorders.
(Id. ¶ 11.)
Plaintiff, who worked
as a teacher, claims she repeatedly asked Defendant for certain
accommodations, including specific planning periods and a less
stressful
classroom
environment
and
size.
(Id.
¶¶
15,
16.)
Defendant, however, “failed to seriously address [those] requests
and pleas for assistance and failed to reasonably accommodate her
disability.”
(Id. ¶ 17.)
Plaintiff claims that the “accumulation
of unbearable conditions” – including a visit by Defendant’s
attorney to her doctor – resulted in her constructive discharge on
March
21,
2014.
investigation,
the
(Id.
Equal
¶¶
33,
34.)
Employment
After
a
Opportunities
five-year
Commission
(EEOC) issued Plaintiff a right to sue letter on June 30, 2015.
(Id. ¶ 27).
This lawsuit followed.
Defendant now moves to dismiss Plaintiff’s Complaint or, in
the alternative, for a more definite statement.
As to Plaintiff’s
ADA claim, Defendant contends Plaintiff failed to adequately plead
i) that she exhausted her administrative remedies prior to filing
suit, and ii) the elements of that claim.
Defendant argues that
Plaintiff’s retaliation claim should be dismissed because the
statute of limitations has passed, and because the facts pled in
support of that cause of action do not support a causal connection
between her 2005 workers’ compensation claim and her alleged
constructive discharge nine years later.
- 2 -
II.
Federal Rule of Civil Procedure 8(a) requires a complaint to
contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
In
evaluating a Rule 12(b)(6) motion seeking to dismiss a complaint
for failing to comply with Rule 8(a), the Court must accept as
true all factual allegations in the complaint and “construe them
in the light most favorable to the plaintiff.”
Baloco ex rel.
Tapia v. Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011).
However,
mere
“[l]egal
conclusions
without
adequate
support are entitled to no assumption of truth.”
factual
Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
To avoid dismissal under Rule 12(b)(6), the complaint must
contain sufficient factual allegations to “raise a right to relief
above the speculative level.”
U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly, 550
To do so requires “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
This
plausibility pleading obligation demands “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
Id. at 555 (citation omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (“Factual allegations that are
- 3 -
merely consistent with a defendant’s liability fall short of being
facially plausible.” (citation omitted)).
Instead, the complaint
must contain enough factual allegations as to the material elements
of each claim to raise the plausible inference that those elements
are satisfied, or, in layman’s terms, that the plaintiff has
suffered a redressable harm for which the defendant may be liable.
III.
A.
The Failure to Accommodate Claim (Count I)
The Complaint asserts a claim under Title I of the ADA for
disability discrimination, specifically, Defendant’s failure to
reasonably accommodate Plaintiff’s disability in the workplace.
Defendant contends that Plaintiff’s ADA claim should be dismissed
because the Complaint fails to i) adequately allege that she
exhausted her administrative remedies prior to filing suit, and
ii) state a prima facie case for disability discrimination.
The
Court will consider these arguments in turn.
(1)
Exhaustion of Administrative Remedies
“Generally, [an ADA] plaintiff must allege in the complaint
filed in his lawsuit that he has met the prerequisites o[f] a valid
and timely-filed EEOC charge.”
Rizo v. Ala. Dep't of Human Res.,
228 F. App'x 832, 836 (11th Cir. 2007) (per curiam) (citing Jackson
v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir.
1982)).
It suffices to “allege generally that all conditions
precedent have occurred or been performed.”
- 4 -
Fed. R. Civ. P. 9(c).
Plaintiff satisfied her pleading burden by alleging that she
received a right to sue letter from the EEOC on June 30, 2015 –
less than 90 days prior the date her suit was filed – and that
“[a]ll
conditions
occurred.”
precedent
to
filing
this
suit
has
[sic]
(Doc. #1, ¶¶ 27, 28); Myers v. Cent. Fla. Invs., Inc.,
592 F.3d 1201, 1224 (11th Cir. 2010); see also Rodrigues v. SCM I
Invs., LLC, No. 2:15-CV-128-FTM-29CM, 2015 WL 6704296, at *3 (M.D.
Fla. Nov. 2, 2015).
Accordingly, even if it turns out that
Plaintiff did not file a timely or valid charge of discrimination
with the EEOC - as Defendant’s Motion to Dismiss insinuates dismissal
of
Plaintiff’s
ADA
claim
on
exhaustion-of-
administrative-remedies grounds is not warranted at this stage.
Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)
(“[F]iling a timely charge of discrimination with the EEOC is not
a jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling.”).
(2)
Pleading Sufficiency of the ADA Claim
Under Title I of the ADA, “[a]n employer “discriminate[s]
against a qualified individual on the basis of disability” by,
inter alia, “not making reasonable accommodations to the known
physical
or
mental
limitations
of
an
otherwise
qualified
individual with a disability who is an . . . employee, unless such
covered entity can demonstrate that the accommodation would impose
- 5 -
an undue hardship on the operation of the business of such covered
entity.”
42 U.S.C. § 12112(b)(5)(A).
Thus:
To state a prima facie claim for failure to
accommodate under the ADA, a plaintiff must
show that: (1) he is disabled; (2) he is a
qualified individual, meaning able to perform
the essential functions of the job; and (3) he
was discriminated against because of his
disability by way of the defendant's failure
to provide a reasonable accommodation.
Russell v. City of Tampa, No. 15-14946, --- Fed. App’x ---, 2016
WL 3181385, at *2 (11th Cir. June 8, 2016) (per curiam) (citing
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001)).
Defendant argues that dismissal of Plaintiff’s ADA claim is
warranted because the Complaint does not adequately allege these
three elements.
Specifically, Defendant contends that Plaintiff
did not: 1) plead facts to support her “conclusory allegation”
that she has a disability affecting major life activities; 2)
allege that she is a “qualified individual”; and 3) provide facts
linking
her
condition
allegedly received.
facts
alleged
in
with
the
discriminatory
The Court disagrees.
the
Complaint,
and
treatment
she
Accepting as true the
drawing
“all
reasonable
inferences derived from those facts” in Plaintiff’s favor, as the
Court must, Tennyson v. ASCAP, 477 F. App'x 608, 609 n.2 (11th
Cir. 2012) (per curiam) (quotation omitted), the Court finds the
ADA claim adequately pled.
- 6 -
(a)
Plaintiff Adequately Alleges She Is “Disabled”
An individual is “disabled” within the meaning of the ADA if
she has “a physical or mental impairment that substantially limits
one or more major life activities.”
42 U.S.C. § 12102(1)(A).
“[M]ajor life activities include, but are not limited to, caring
for oneself, performing manual tasks, seeing, hearing, eating,
sleeping,
walking,
breathing,
standing,
learning,
reading,
communicating, and working.”
The
Complaint
lifting,
alleges
bending,
concentrating,
speaking,
thinking,
Id. § 12102(2)(A).
that,
after
Plaintiff’s
workplace
accident, she began to suffer from several impairments, including
“cognitive
impairment,
fibromyalgia,
and
repetitive
disorders of the upper body.” (Doc. #1, ¶ 11.)
motion
As a result,
Plaintiff “is in near constant pain[ and] suffers from severe sound
sensitivity.”
(Id. ¶ 20.)
From these allegations, the Court may
draw the reasonable inference that Plaintiff has impairments that
affect
major
life
activities,
lifting, bending, and walking. 1
including
thinking,
hearing,
See Weixel v. Bd. of Educ. of
1
Defendant argues that Plaintiff has alleged only that she was
“diagnosed” with these conditions and there exists a distinction
between a “diagnosis” and an “impairment” for purposes of stating
a claim under the ADA. (Doc. #8, pp. 8-9.) If there is indeed
any such distinction (a point on which the Court is not convinced),
it is one without a difference here.
The allegations in the
Complaint permit the Court to reasonably infer that Plaintiff
suffers from impairments that substantially limit major life
activities.
- 7 -
N.Y., 287 F.3d 138, 146-48 (2d Cir. 2002) (reversing district
court’s holding that complaint alleging chronic fatigue syndrome
and fibromyalgia did not adequately plead
disability element);
see also Araya-Ramirez v. Office of the Courts Admin., No. CIV.
14-1619 DRD, 2015 WL 5098499, at *8 (D.P.R. Aug. 31, 2015) (“[I]t
is
uncontested
that
with Fibromyalgia suffer,
in
individuals
the
majority
of
diagnosed
circumstances,
a
physical impairment [impacting major life activities] . . . ,
including
sleeping
and
concentration.”).
The
Complaint
thus
sufficiently alleges that Plaintiff is “disabled” under the ADA. 2
(b)
Plaintiff Adequately Alleges She Is a “Qualified
Individual”
A “qualified individual” for purposes of the ADA is one “who,
with
or
without
essential
reasonable
functions
of
accommodation,
the
employment
individual holds or desires.”
essential
functions
means
can
perform
position
that
42 U.S.C. § 12111(8).
the
fundamental
job
the
such
“The term
duties
of
the
employment position the individual with a disability holds or
desires.”
to
perform
29 C.F.R. § 1630.2(n)(1).
an
essential
function
“If the individual is unable
of
his
job,
even
with
an
accommodation, he is, by definition, not a ‘qualified individual’
and, therefore, not covered under the ADA.”
2
Holly v. Clairson
The Complaint also adequately alleges that Defendant knew of
Plaintiff’s impairments. (Doc. #1, ¶¶ 14, 15, 18, 19.)
- 8 -
Indus., L.L.C., 492 F.3d 1247, 1256 (11th Cir. 2007) (citation
omitted).
Consequently, stating a claim under the ADA requires a
plaintiff to allege sufficient facts from which the Court may
reasonably
infer
that
she
was
able
to
perform
her
essential
employment functions, or that she could have performed those
functions with “reasonable accommodation.”
By alleging that she had worked for Defendant since 1997 and
continued to do so for more than nine years after her accident,
Plaintiff has done just that.
From her approximately seventeen
years of employment, the Court may plausibly infer that, at the
time of her alleged constructive discharge, she was able to perform
the essential functions of her job as a teacher. 3
See Johnson v.
SecTek, Inc., No. CIV.A. ELH-13-3798, 2015 WL 502963, at *11 (D.
Md. Feb. 4, 2015) (“[P]laintiff is not required to use words
stating that she is a ‘qualified individual,’ as defendant urges.
Nor, at the pleading stage, does plaintiff need to define the
essential functions of her position.”); see also Blackburn v.
Trustees of Guilford Tech. Cmty. Coll., 822 F. Supp. 2d 539, 551
(M.D.N.C. 2011) (plaintiff not required to specifically plead the
“essential functions” of the job).
Accordingly, Plaintiff has
adequately pled she is a “qualified individual” under the ADA.
3
In fact, Defendant’s Motion to Dismiss acknowledges that
Plaintiff “remained employed by the District as a teacher for
nearly a decade following her injury, all the while performing her
job duties as a teacher.” (Doc. #8, p. 5.)
- 9 -
(c)
Plaintiff Adequately Alleges Defendant Failed to
Accommodate Her Disability
In order to satisfy the pleading burden with respect to the
third element of a failure to accommodate claim, the Complaint
must allege facts from which the Court may infer that a reasonable
accommodation existed and was denied to the plaintiff, and that
providing that accommodation would not have imposed an undue
hardship on the employer.
See 42 U.S.C. § 12112(b)(5)(A).
A
failure to accommodate is akin to a strict liability claim in that
“[a]n employer's failure to reasonably accommodate a disabled
individual is itself discrimination, and the plaintiff does not
bear the additional burden of having to show that the employer
acted in a discriminatory manner toward its disabled employees.” 4
Palmer v. McDonald, 624 F. App'x 699, 706 (11th Cir. 2015) (per
curiam) (emphasis added) (citing Holly, 492 F.3d at 1262).
The Complaint alleges what the ADA requires.
Plaintiff
claims she “asked repeatedly that her schedule be changed to allow
for a less stressful classroom environment and size, particularly
as an ESOL teacher,” and also “requested specific planning periods
and a classroom change.”
(Doc. #1, ¶¶ 15-16.)
Not only did
Defendant refuse to provide most of the accommodations requested,
4
Consequently, unlike an ADA retaliation claim, a failure to
accommodate claim requires no allegations connecting the denial of
accommodations to any adverse employment actions suffered.
- 10 -
(id. ¶ 23), 5 the school principal “failed to show up for scheduled
meetings to discuss accommodations.”
(Id. ¶ 21.)
Moreover,
“Defendant routinely accommodated the schedules of other teachers,
so Defendant could have accommodated [her].”
(Id. ¶ 22.)
Defendant nevertheless claims dismissal of the ADA claim is
warranted
because
Plaintiff
pleads
no
facts
connecting
“her
condition and any accommodation requests allegedly denied by the
District.”
(Doc. #8, p. 10.)
In other words, Defendant argues
that Plaintiff has failed to allege her employment would have been
less debilitating, had Defendant provided the accommodations. 6
It is certainly true that, to prevail on a workplace failure
to accommodate claim under the ADA, the accommodations requested
must have been sought for the purpose of alleviating the workplace
effect of the impairment.
Tesh v. U.S. Postal Serv., 349 F.3d
1270, 1276 (10th Cir. 2003) (affirming judgment as a matter of law
in defendant’s favor on failure to accommodate claim where the
accommodation sought (a daytime shift) was “unrelated to the
[plaintiff’s] knee disability”); Wood v. Crown Redi-Mix, Inc., 339
F.3d 682, 687 (8th Cir. 2003) (“[T]here must be a causal connection
between
the
major
life
accommodation sought.”).
5
activity
that
is
limited
and
the
But regardless of whether the Court
She did receive a room change in 2011.
6
(Doc. #1, ¶ 33.)
The Complaint does allege that the accommodations Plaintiff
requested would have been “less stressful to her.” (Id. ¶ 16.)
- 11 -
finds
tenuous
accommodations
the
connection
Plaintiff
sought
between
and
the
her
“less
alleged
stressful”
impairments,
Defendant has provided no authority supporting the contention that
dismissal is appropriate where a Complaint does not connect the
accommodations requested to the impairment.
In sum, though the Complaint’s factual allegations are rather
lean, the facts pled are sufficient to state a claim against
Defendant for failure to accommodate under Title I of the ADA. 7
B.
The Workers’ Compensation Retaliation Claim (Count II)
Plaintiff also seeks to hold Defendant liable for violating
Fla. Stat. § 440.205, 8 which states that “[n]o employer shall
discharge,
threaten
to
discharge,
intimidate,
or
coerce
any
employee by reason of such employee's valid claim for compensation
or attempt to claim compensation under the Workers' Compensation
Law.”
Defendant moves for dismissal of this claim, arguing i) it
is barred under the applicable statute of limitations, and ii)
Plaintiff has not adequately pled one of the elements of the claim.
(1)
Statute of Limitations Affirmative Defense
The expiration of the relevant statute of limitations is an
affirmative defense around which a plaintiff is not required to
7
Defendant’s bare assertion that it cannot respond in good faith
to Plaintiff’s ADA allegations is not well-taken. The request for
a more definite statement as to Count I is therefore denied.
8
The Court presumes that the Complaint’s citation to Section
440.204, which does not exist, is a scrivenor’s error.
- 12 -
plead.
La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004).
Consequently, dismissal of a cause of action
because the defendant claims the statute of limitations has run is
not warranted unless “it is apparent from the face of the complaint
that the claim is time-barred.” Id. (citations omitted).
Here, that is not apparent.
Under Florida law, an employee
must bring a claim for workers’ compensation retaliation within
four years of the occurrence of the alleged retaliatory conduct.
Scott v. Otis Elevator Co., 524 So. 2d 642, 643 (Fla. 1988).
Although true that some of the alleged violative behavior occurred
more than four years before Plaintiff filed her Complaint on
September 15, 2015, the Complaint also alleges incidents occurring
during the four years prior to filing. 9
(k), (m).)
Indeed, the date of Plaintiff’s alleged constructive
discharge is March 21, 2014.
(2)
(Doc. #1, ¶¶ 33(a), (e),
(Id. ¶ 34.)
Failure to State a Claim Under Fla. Stat. § 440.205
A plaintiff alleging a violation of Fla. Stat. § 440.205 must
adequately plead that: (1) she engaged in protected activity, such
9
The Complaint also claims that the retaliatory actions alleged
“should be subject to the continuing torts doctrine.” (Doc. #1,
¶ 36.) This doctrine is recognized under Florida law and “permits
a plaintiff to sue on an otherwise time-barred claim when
additional violations of the law occur within the statutory
period.” Crossman v. Asset Acceptance, L.L.C., No. 5:14-CV-115OC-10, 2014 WL 2612031, at *3 n.4 (M.D. Fla. June 11, 2014) (citing
Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1221 (11th
Cir. 2001)).
It is not clear, however, whether any court has
applied the doctrine to a claim brought under Fla. Stat. § 440.205.
- 13 -
as filing a claim for workers’ compensation; 2) she was subjected
to an adverse employment action prohibited by the statute; and 3)
there exists “a causal connection” between the protected activity
and the adverse action.
Andrews v. Direct Mail Exp., Inc., 1 So.
3d 1192, 1193 (Fla. DCA 5th 2009); Russell v. KSL Hotel Corp., 887
So. 2d 372, 379 (Fla. DCA 3d 2004).
Defendant argues that
dismissal of Plaintiff’s retaliation claim is appropriate because
her Complaint is devoid of facts showing a causal connection
between the protected workers’ compensation activity in which she
engaged (which Defendant claims was the singular act of signing
her workers’ compensation documents on January 4, 2005) and the
adverse actions she claims she suffered years later.
It is unclear whether the only “protected activity” alleged
is the January 4, 2005 document signing. 10
understanding
of
the
evolution
of
Without a better
Plaintiff’s
workers’
compensation claim, the Court cannot evaluate whether Defendant’s
argument has merit.
On this point only, Defendant’s request for
10
The Complaint alleges that “Defendant chose to transport
Plaintiff to school to sign [the workers’ compensation] documents”
on January 4, 2005, (Doc. #1, ¶ 31), which seems to imply that
Plaintiff was successful in claiming workers’ compensation, and
that Defendant never frustrated her efforts to do so. However,
the Complaint also states that there “has been no final resolution
of Plaintiff’s worker's compensation claim,” (id. ¶ 35), and that
“District officials advised other teachers not to assist [her] in
her duties as she requested help due to her injury, because she
was in a worker's compensation lawsuit.” (Id. ¶ 33(f)).
- 14 -
a
more
definite
statement
is
granted. 11
Accordingly,
within
fourteen (14) days of the date of this Order, Plaintiff shall file
an Amended Complaint clearly setting forth the protected activity
forming the basis for her state-law retaliation claim and any
relevant dates associated therewith.
Accordingly, it is hereby
ORDERED:
1.
Defendant's Motion to Dismiss Plaintiff’s Complaint or
for a More Definite Statement (Doc. #8) is granted in part and
denied in part.
As to Count I, the Motion is denied.
As to Count
II, the Court grants in part the Motion for a More Definite
Statement and denies as moot the Motion to Dismiss.
2.
Within fourteen (14) days of the date of this Order,
Plaintiff shall file an Amended Complaint clearly setting forth
the protected workers’ compensation activity that forms the basis
for Count II and any relevant associated dates.
DONE and ORDERED at Fort Myers, Florida, this 11th day of
August, 2016.
Copies:
Counsel of Record
11
Defendant claims that it is not clear “which employment-related
actions Plaintiff is relying upon as the basis for her claim,”
(Doc. #8, p. 12), but it seems apparent to the Court that she is
relying on the several actions listed in paragraphs 33 and 34.
- 15 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?