Karaba v. DSI Security Services

Filing 21

ORDER granting 13 Defendant DSI Security Services' Motion to Dismiss. The Amended Complaint is dismissed without prejudice. Plaintiff Anton Karaba may file a second amended complaint on or before February 28, 2017. Failure to do so will result in this case being dismissed with prejudice.Signed by Judge Sheri Polster Chappell on 2/14/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTON KARABA,
Plaintiff,
v.

Case No: 2:16-cv-664-FtM-99MRM

DSI SECURITY SERVICES,
Defendant.
___________________________________/
OPINION AND ORDER1
This matter comes before the Court on Defendant DSI Security Services’ Motion
to Dismiss (Doc. 13) dated January 10, 2017. Plaintiff Anton Karaba, appearing pro se,
filed a response in opposition on February 3, 2017. (Doc. 13). As set forth below,
Defendant’s motion is granted.
BACKGROUND
Approximately five months ago, Plaintiff filed this suit for employment
discrimination and retaliation. (Doc. 1, Doc. 1-1). The Court ordered him to file an
amended complaint because he failed to allege sufficient facts establishing discrimination
and to state each allegation in separate, numbered paragraphs. (Doc. 4). Plaintiff then

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filed an Amended Complaint, which appears to cure the pleading deficiencies. (Doc. 5;
Doc. 6).
Plaintiff is a fifty-two year old, Caucasian man from Slovakia. (Doc. 5 at 1). He
alleges that on April 25, 2016, Defendant fired him after he complained about favorable
treatment of two African American co-workers. (Docs. 1 at 1-2; 1-1). On May 27, 2016,
Plaintiff filed an intake questionnaire with the United States Employment Opportunity
Commission (“EEOC”). (Doc. 1-1 at 2-5). Although he indicated that he wanted to file a
charge of discrimination in his questionnaire, he has not filed any EEOC charge. (Id. at
5). In addition, Plaintiff has not filed a notice of right-to-sue letter.
DISCUSSION
Defendant moves to dismiss the Amended Complaint because Plaintiff has failed
to exhaust his administrative remedies before filing suit in this Court. (Doc. 13 at 1-2).
Plaintiff does not respond substantively but asserts that he does not agree with
Defendant’s motion. (Doc. 20).
A motion to dismiss for failure to exhaust administrative remedies is treated as a
Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be
granted. See Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). “In order to file
a judicial complaint under Title VII, a plaintiff must first administratively exhaust any claims
by filing a charge with the EEOC.” Francois v. Miami Dade Cnty., 432 F. App’x 819, 821
(11th Cir. 2001) (citations omitted). “[T]he scope of [a] judicial complaint is limited to the
scope of the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.” Id. (citation omitted). This means that a plaintiff must allege
that he filed a charge with the EEOC and “receive[d] statutory notice from the EEOC of

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[his] right to sue the [defendant] named in the charge.” Forehand v. Fla. State Hosp. at
Chattahoochee, 89 F.3d 1562, 1569-70 (11th Cir. 1996). Once a plaintiff receives a notice
of right-to-sue letter from the EEOC, he has 90 days to file a complaint. See 42 U.S.C.
§ 2000e-5(f)(1); Miller v. Georgia, 223 F. App’x 842, 845 (11th Cir. 2007). A Title VII
plaintiff bears “the burden of proving all conditions precedent to filing suit[.]” Miller; 223
F. App’x at 845,
Here, Plaintiff not only failed to provide a notice of right-to-sue, but he also failed
to show that he filed a discrimination charge with the EEOC. Instead, Plaintiff attached
an intake questionnaire that he filed with the EEOC. (Doc. 1-1 at 2-5). The Eleventh
Circuit has cautioned that “an intake questionnaire is not intended to function as a
charge[.]” Pijenburg v. West Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001).
Because Plaintiff has not shown that he has exhausted his administrative remedies
prior to filing this suit, the Amended Complaint is dismissed without prejudice. See
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (“Before a potential
plaintiff may sue for discrimination under Title VII, she must first exhaust her
administrative remedies.”). The Court will grant Plaintiff an opportunity to file a second
amended complaint that attaches a notice of right-to-sue letter he received from the
EEOC.
Accordingly, it is now
ORDERED:
1. Defendant DSI Security Services’ Motion to Dismiss (Doc. 13) is
GRANTED. The Amended Complaint is dismissed without prejudice.

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2. Plaintiff Anton Karaba may file a second amended complaint on or before
February 28, 2017. Failure to do so will result in this case being
dismissed with prejudice.
DONE and ORDERED in Fort Myers, Florida this 14th day of February, 2017.

Copies: All Parties of Record

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