Beatty v. United Parcel Service, Inc.

Filing 32

ORDER granting in part and denying in part 29 Defendant United Parcel Service, Inc.'s Motion to Dismiss Counts III, IV, and V of Plaintiff's Amended Complaint as set forth above. Counts III and IV are dismissed with prejudice, while Counts I, II, and V survive to the next stage of litigation. Signed by Judge Sheri Polster Chappell on 3/2/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRADLEY BEATTY,
Plaintiff,
v.

Case No: 2:15-cv-607-FtM-38CM

UNITED PARCEL SERVICE, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant United Parcel Service, Inc.'s
Motion to Dismiss Counts III, IV, and V of Plaintiff's Amended Complaint dated January
27, 2016. (Doc. #29). Plaintiff Bradley Beatty filed an Opposition to Defendant's Motion
to Dismiss on February 12, 2016. (Doc. #31). This matter is ripe for review.
BACKGROUND
This case arises from Plaintiff's former employment as a package driver with
Defendant. He began working for Defendant in September 1999, and has since been a
member of Local 79 of the International Teamster's Union (the "Union"). (Doc. #26 at
¶¶ 12-13). At all times relevant, Michael G. Boeschen served as the Union's shop
steward. (Id. at ¶¶ 8-9).

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their
websites. Likewise, the Court has no agreements with any of these third parties or their websites. The
Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

After ten years in Defendant's employ, Plaintiff's daughter was born with a disability
that required intensive medical treatment and around-the-clock nursing care. (Id. at
¶¶ 12, 16-20). For three years following his daughter's birth, Plaintiff took intermittent
leave under the Family and Medical Leave Act ("FMLA") to care for her. (Id. at ¶¶ 25,
112, 115). According to Plaintiff, his supervisors – Brian Conner, Robert Woodmansee,
Michael Compton, and Shawn Bonaberger – resented his need to take FMLA leave.
Plaintiff contends that their resentment grew to the point where they harassed him in a
calculated effort to force his resignation. (Id. at ¶¶ 35-37, 43-47, 49-54). Plaintiff's
purported evidence of their harassment is as follows:
First, sometime in late 2011, Plaintiff physically collapsed mid-shift because of
emotional exhaustion. (Id. at ¶ 49). A few weeks later, he notified Defendant that his
daughter needed yet another surgery. (Id. at ¶ 50). In response, Woodmansee and
Compton assigned Plaintiff fifty additional delivery stops. (Id. at ¶¶ 51-52). When Plaintiff
could not finish the additional stops, he drove his truck back to Defendant's customer
center. (Id. at ¶¶ 53-54). There, Bonaberger greeted Plaintiff by telling him that bets had
been made as to whether he would complete the additional stops. (Id.). Someone also
told Plaintiff that he would be fired if he left work and that he had to choose between his
job and his daughter. (Id. at ¶ 54).
Afterwards, Plaintiff contacted Linda Pallegrini, a member of Defendant's Human
Resources department, to "complain[] about the continued mistreatment and the effort to
break him because of his daughter's disability and his prior absences from work to care
[for] his daughter which were FMLA-qualifying." (Id. at ¶ 55). Pallegrini allegedly told
Plaintiff not to "pick on" Woodmansee. (Id.). Unsuccessful with Pallegrini, Plaintiff also

2

reported the alleged FMLA violations to the Union's shop steward, who told Plaintiff to
return to work the next day. (Id. at ¶¶ 8, 56). Plaintiff complied but Woodmansee,
Compton, and Bonaberger continued to give him unrealistic assignments. (Id. at ¶ 59).
Second, sometime in 2012, Plaintiff requested time off to bring his daughter to a
medical appointment. (Id. at ¶ 60). Compton allegedly said that he "did not deserve
FMLA leave" and that he "already had enough time off." (Id. at ¶ 61). Although Plaintiff
had not exceeded the allotted leave available to him under the FMLA, he was denied the
time. (Id. at ¶¶ 61-62). He also learned that he could not take time off to bring his
daughter to appointments between November 2012 and April 2013 because it was
Defendant's "season rush." (Id. at ¶¶ 63-64).
Third, sometime in 2012, Plaintiff sought a promotion to a more senior position but
Woodmansee and Compton allegedly promoted several drivers with less experience. (Id.
at ¶ 65). According to Plaintiff, Woodmansee told him that he "would never be promoted
because [he] had a handicapped daughter." (Id. at ¶ 66). Although not entirely clear from
the existing record, it appears that Plaintiff complained to Defendant's HR department
regarding this incident sometime during the summer of 2012.

(Id. at ¶ 67).

An

investigation ensued, but Defendant apparently took no corrective action. (Id. at ¶¶ 6871).
Fourth, in June 2013, Plaintiff learned that his daughter struggled to breathe and
promptly notified his district manager that he needed time to care for her. (Id. at ¶ 76).
The manager granted his request but instructed Plaintiff to notify Woodmansee, which he
admittedly did not do. (Id. at ¶ 77). When Plaintiff returned to work the next morning,
Woodmansee fired him. (Id. at ¶ 78). A few days later, Woodmansee expressed doubt

3

as to the validity of Plaintiff's FMLA leave requests and directed Plaintiff to submit medical
records to prove his daughter's condition. (Id. at ¶¶ 80-81). Plaintiff refused to do so
believing the directive violated the FMLA. (Id. at ¶¶ 81-82).
Fifth, in October 2013, Plaintiff learned that Woodmansee, Compton, and
Boeschen spoke to his ex-wife about their daughter's health. (Id. at ¶¶ 91-92). Plaintiff's
ex-wife apparently said their daughter was healthy and that Plaintiff "was fraudulently
seeking FMLA protection." (Id. at ¶¶ 91-96). Plaintiff then refused to answer Boeschen's
questions about his daughter's condition. (Id. at ¶¶ 96-98).
On October 25, 2015, Plaintiff took FMLA leave for his own serious medical
condition. (Id. at ¶¶ 100, 106). About one month later, Plaintiff received a final warning
from Defendant that indicated he would be fired if he did not contact his supervisor within
48 hours. (Id. at ¶ 105). Plaintiff then contacted Compton to advise about his leave of
absence. (Id. at ¶ 107). Nevertheless, Defendant fired Plaintiff on December 4, 2013, for
failing to contact his supervisor. (Id.).
On August 12, 2015, Plaintiff commenced this suit in the Circuit Court for the
Twentieth Judicial Circuit in and for Charlotte County, alleging Defendant discriminated
and retaliated against him because of his daughter's disability in violation of the FMLA
and the Florida Civil Rights Act ("FCRA"). (Doc. #2). Defendant timely removed the case
to this Court under 28 U.S.C. § 1331. (Doc. #1). Defendant thereafter filed a partial
motion to dismiss (Doc. #2), which the Court granted because the FCRA does not
recognize associational disability discrimination and retaliation claims (Doc. #20).
However, the Court allowed Plaintiff leave to amend the Complaint in order to raise these

4

claims under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112, which was
the appropriate statute. (Doc. #20 at 4-6).
Plaintiff filed his Amended Complaint on January 13, 2016. (Doc. #26). The crux
of this case remains that Defendant resented Plaintiff's need to take FMLA leave to care
for his disabled daughter and that he was fired because of this animosity. (Id. at ¶¶ 2324, 29, 35). From that basis, Plaintiff asserts five causes of action under the FMLA,
FCRA, and Florida Whistleblower Act ("FWA"), Fla. Stat. § 448.102(3). Counts I though
IV are identical to the original Complaint, whereas Count V is new. Counts I and II again
allege that Defendant violated the FMLA by interfering with his rights to leave and
retaliating against him for taking leave. Count III similarly re-alleges that Defendant
discriminated against him because of his daughter's disability in violation of the FCRA.
Count IV asserts that Defendant retaliated against him because he opposed disability
discrimination and requested leave to care for himself and his daughter in violation of the
FCRA. Finally, Count V maintains that Defendant harassed, retaliated, and fired him for
whistleblowing activity in violation of the FWA. (Doc. #26 at ¶ 126). Defendant now
moves to dismiss Counts III, IV, and V of the Amended Complaint. (Doc. #29).
STANDARD OF REVIEW
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the reviewing court must accept all factual allegations in the complaint
as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court
has been clear on this point – a district court should dismiss a claim where a party fails to

5

plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable
inference, based on the facts pled, that the opposing party is liable for the alleged
misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires "more than a
sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at
557 (internal quotation marks omitted)).
DISCUSSION
A. Count III – Associational Disability Discrimination Under the FCRA
Count III of the Amended Complaint is identical to its predecessor. Both versions
allege that Defendant discriminated against Plaintiff because of his daughter's disability
in violation of the FCRA. According to Plaintiff, he re-alleged Count III under the FCRA,
and not the ADA as the Court suggested, because of a procedural bar. Plaintiff admittedly
commenced this case more than ninety (90) days after he received a "Notice-of-Right-to
Sue" letter from the United States Equal Employment Opportunity Commission; and, once
that 90-day period expired, he lost the right to sue Defendant based on an associational
disability discrimination claim under the ADA. (Doc. #24). Consequently, Defendant
again moves to dismiss Count III. Plaintiff does not oppose the dismissal; but rather,
responds that he re-alleged an associational disability discrimination claim under the
FCRA to preserve his right to appeal. (Doc. #31 at 1-2).
Because this Court previously found the FCRA does not recognize a claim for
associational disability discrimination and because Plaintiff is procedurally barred from
asserting such a claim under the ADA, the Court dismisses Count III of the Amended
Complaint with prejudice.

6

B. Count IV – Retaliation Under the FCRA
Count IV of the Amended Complaint is also identical to its predecessor. Both
versions allege that Defendant retaliated against Plaintiff for "opposing disability
discrimination" and "requesting one or more periods of leave in order to care for himself
and his daughter" under the FCRA. (Doc. #26 at ¶ 128). Defendant moves to dismiss
Count IV, arguing that Plaintiff has not shown that he engaged in statutorily protected
activity, the first element to a retaliation claim, because the FCRA does not recognize
associational disability discrimination. (Doc. #29 at 5-6). Plaintiff does not argue the
contrary; but rather, states that he re-alleged this claim under the FCRA, and not the ADA,
to preserve his right to appeal. (Doc. #31 at 1-2).
The FCRA prohibits an employer from retaliating "against any person because that
person has opposed any practice which is an unlawful employment practice under [the
FCRA]." Fla. Stat. § 760.10(7). Pertinent here, the FCRA makes it unlawful for an
employer to fire or otherwise discriminate against any individual because of his/her
handicap. Fla. Stat. § 760.10(1)(a). Where there is no direct evidence of retaliation, as
in this case, courts apply the burden-shifting framework established in McDonnell
Douglas v. Green, 411 U.S. 792, 802-04 (1973). See Brown v. Ala. Dep't of Transp., 597
F.3d 1160, 1181 (11th Cir. 2010). First, the employee must establish a prima facie case
of retaliation by showing (1) he engaged in statutorily protected activity; (2) he suffered
an adverse employment action; and (3) a causal link between the protected activity and
the adverse employment action. See Lucas v. W.W. Grainger, 257 F.3d 1249, 1260 (11th
Cir. 2001). Once a plaintiff establishes a prima facie case of retaliation, the employer has
an opportunity to articulate a non-retaliatory reason for its action, which the employee can

7

rebut by evidence of pretext. See Brown, 597 F.3d at 1181-82. The first element of
Plaintiff's prima facie case is at issue in the instant motion.
Even viewing the facts in a light most favorable to Plaintiff, he has not engaged in
statutorily protected activity. In the three years following his daughter's disability, Plaintiff
avers that he complained about FMLA violations and discrimination because of his
daughter's condition. Although Plaintiff raises serious issues with his superiors' treatment
of him, he did not actually oppose any unlawful employment practice under the FCRA.
Remember, the FCRA makes it unlawful for an employer to discriminate against any
individual because of his/her handicap – it does not contemplate FMLA violations and
associational disability discrimination. Fla. Stat. § 760.10(1)(a). Plaintiff's complaints
here support an FMLA retaliation claim, which he asserts in Count II of the Amended
Complaint. Moreover, to the extent that Plaintiff bases the FCRA retaliation claim on
requesting one or more periods of leave in order to care for himself, he does so without
sufficient specificity to state a plausible claim under the FCRA. Accordingly, the Court
dismisses Count IV of the Amended Complaint with prejudice.
C. Count V – FWA
Plaintiff brings Count V of the Amended Complaint under the FWA, which states,
in pertinent part, "[a]n employer may not take any retaliatory personnel action against an
employee because the employee has . . . [o]bjected to, or refused to participate in, any
activity, policy, or practice of the employer which is in violation of a law, rule, or regulation."
Fla. Stat. § 448.102(3). Plaintiff now asserts, for the first time, that he was "harassed,
retaliated against and ultimately discharged in retaliation for protected whistleblowing
activity[.]" (Doc. #26 at ¶¶ 131-32). In response, Defendant moves to dismiss because

8

(1) the FWA's two-year statute of limitations bars the claim; and (2) he failed to plead a
prima facie case of retaliation sufficiently. (Doc. #29 at 6-11). The Court will address
each argument in turn.
1. Statute of limitations
The FWA provides that an employee may bring an action "within 2 years after
discovering that the alleged retaliatory personnel action was taken[.]"

Fla. Stat.

§ 448.103. Here, Defendant fired Plaintiff on December 4, 2013, meaning he was
required to file an FWA claim on or before December 3, 2015. (Doc. #26 at ¶ 106).
Plaintiff initiated this suit in state court on August 12, 2015, but he filed the Amended
Complaint – where the FWA claim was first alleged – on January 13, 2016. (Compare
Doc. #2, with Doc. #26). According to Defendant, Plaintiff first asserted the FWA claim
outside the two-year limitations period. Plaintiff counters that his FWA claim "relates
back" to the original complaint because it arises out of the same conduct as the other
counts. The issue before the Court, therefore, is whether the FWA claim "relates back"
to the original complaint, because, if not, the claim is time barred.
Rule 15(c) of the Federal Rules of Civil Procedure governs the "relation back of
amendments," or the circumstances in which an amendment will be treated as though it
was filed on the date of the original pleading. Fed. R. Civ. P. 15(c). "An amendment of
a pleading relates back to the date of the original pleading when . . . the amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out – or attempted to be set out – in the original pleading[.]" Fed. R. Civ. P. 15(c)(1)(B).
If the new claims relate back to the original claims, the court considers the new claims as
having been filed at the time of the original complaint. See Brewer-Giorgio v. Producers

9

Video, Inc., 216 F.3d 1281, 1285 (11th Cir. 2000). "Amendments made after the statute
of limitations has run relate back to the date of the original pleading if the original and
amended pleadings 'ar[i]se out of the conduct, transaction, or occurrence.'" Mayle v.
Felix, 545 U.S. 644, 655 (2005). The Supreme Court has held that amendments can
relate back, and therefore avoid a statute of limitations bar, "even though the amendment
invoked a legal theory not suggested by the original complaint and relied on facts not
originally asserted." Id. (citation omitted). "[R]elation back depends on the existence of
a common 'core of operative facts' uniting the original and newly asserted claims." Id. at
659 (citations omitted).
Here, the Court has little trouble finding that the FWA claim relates back to the
original complaint.

Since day one of this suit, Plaintiff has challenged Defendant

interfering with his FMLA leave and discriminating against him because of his daughter's
disability, as well as Defendant's decision to fire him for opposing said interference and
discrimination. Simply, Count V alleges retaliatory discharge as do the other counts.
Having overcome the two-year statute of limitations, the Court turns now to Plaintiff's
prima facie case of retaliation under the FWA.
2. Plaintiff's Prima Facie Case of Retaliation
The FWA prohibits an employer from retaliating against an employee who objected
to any unlawful activity, policy, or practice of the employer. See Fla. Stat. § 448.102(3).
In analyzing retaliation claims under the FWA, a court must apply the McDonnell
Douglas burden-shifting framework already discussed. See Sierminski v. Transouth Fin.
Corp., 216 F.3d 945, 950 (11th Cir. 2000).2 To recapitulate, a plaintiff must first establish a

2

Although the court in Sierminski acknowledged that it found the McDonnell Douglas framework applicable
to FWA claims only because there was no guiding case law from Florida, at least one Florida appellate

10

prima facie case of retaliation, which requires a showing that (1) the plaintiff engaged in
protected activity; (2) he subsequently suffered an adverse employment action by the
defendant; and (3) a causal connection existed between the plaintiff's activity and the
defendant's adverse action. See Rutledge v. SunTrust Bank, 262 F. App'x 956, 958 (11th
Cir. 2008). Once a plaintiff establishes a prima facie case, the employer may articulate a
non-retaliatory reason for its action, which the employee can rebut by evidence of pretext.
See Brown, 597 F.3d at 1181-82. The first and third elements of Plaintiff's prima facie
case are at issue here.
To establish the first element, the plaintiff must allege that he "objected to or
refused to participate in (i) an illegal activity, policy, or practice of an employer, (ii) illegal
activity of anyone acting within the legitimate scope of their employment, or (iii) illegal
activity of an employee that has been ratified by the employer." McIntyre v. Delhaize Am.,
Inc., No. 8:07-cv-2371-T-30TBM, 2009 WL 1039557, at *3 (M.D. Fla. Apr.17, 2009), aff'd,
403 F. App'x 448 (11th Cir. 2010). Defendant argues that Plaintiff does not allege with
the requisite specificity that he engaged in any statutorily protected activity. (Doc. #29 at
8-9).
Defendant specifically takes issue with having to "guess upon which of the 100
paragraphs of allegations contained in the Amended Complaint, Plaintiff is supposedly
basing his FWA claim." (Doc. #29 at 9). However, Plaintiff counters that the Amended
Complaint "is a model of specificity" and that he "should not have to write an appellate
brief in response to a 'specificity' argument that is unsupported by any case law." (Doc.
#31 at 5). The Court agrees with Plaintiff. Viewing the facts in a light most favorable to

court has since endorsed use of that framework for FWA claims. See Rustowicz v. N. Broward Hosp. Dist.,
174 So. 3d 414, 419 (Fla. 4th DCA 2015).

11

Plaintiff, he has sufficiently pled that he opposed Defendant's alleged practice of
interfering with his FMLA rights and discriminating against him because of his daughter's
disability during the years following his daughter's birth. The Amended Complaint is
replete with instances in which Plaintiff engaged in protected activity to satisfy the first
element of his prima facie case.
Turning to the third element, Defendant argues that Plaintiff fails to link his
supposed statutorily protected expression to his discharge on December 4, 2013. (Doc.
#29 at 9). The causation requirement is "broadly construed," and a plaintiff may establish
a prima facie case for retaliation so long as the protected activity and the adverse
employment action are not completely unrelated. See Pennington v. City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001). Causation may be established by temporal
proximity, Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004), as well as by showing
that an employer knew of a protected activity and adverse employment actions
commenced shortly thereafter, Jiles v. United Parcel Serv., Inc., 360 F. App'x 61, 66 (11th
Cir. 2010).
According to Defendant, Plaintiff does not allege that any person to whom he
complained was involved in the decision to fire him or that the person who did fire him
was aware of his prior complaints. It also argues that Plaintiff's complaints in 2012 and
2013 are too far removed from his firing on December 4, 2013, to show a close temporal
proximity. (Doc. #29 at 10). For whatever reason, Plaintiff does not offer any substantive
response to Defendant's argument beyond reiterating standard language from the case
law. (Doc. #31 at 7). Nevertheless, the Court sides with Plaintiff.

12

Taking as true the facts in the Amended Complaint, it is clear that Plaintiff opposed
Defendant's interference with his FMLA rights and his supervisors were aware of his
opposition. In addition, Plaintiff took FMLA leave for his own medical condition on or
about October 25, 2013, and approximately six weeks later, Defendant fired him for failing
to contact his supervisor. Coupling this timing with Defendant's ongoing opposition the
three years prior, there is a sufficient causal connection, at this stage, to satisfy the third
element of Plaintiff's prima facie case. All and all, the Court finds that Count V will best
be left for resolution after development of the facts through discovery.
Accordingly, it is now
ORDERED:
Defendant United Parcel Service, Inc.'s Motion to Dismiss Counts III, IV, and V of
Plaintiff's Amended Complaint (Doc. #29) is GRANTED in part and DENIED in part as
set forth above. Counts III and IV are dismissed with prejudice, while Counts I, II, and V
survive to the next stage of litigation.
DONE and ORDERED in Fort Myers, Florida this 2nd day of March, 2016.

Copies: All Parties of Record

13