Ponce v. City of Naples
Filing
21
OPINION AND ORDER granting 10 motion to dismiss and Counts VI, VIII, X, and XI are dismissed without prejudice to filing an Amended Complaint within 14 days of this Opinion and Order. Count XII is deemed withdrawn. Signed by Judge John E. Steele on 6/22/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MANUEL A. PONCE,
Plaintiff,
v.
Case No: 2:17-cv-137-FtM-99CM
CITY OF NAPLES,
Defendant.
_________________________
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss (Doc. #10) filed on March 27, 2017.
Plaintiff filed a
Response (Doc. #15) on April 24, 2017; a Reply (Doc. #20) was
also filed.
On April 6, 2017, defendant filed a Notice of Partial
Withdrawal of its Motion to Dismiss (Doc. #13), withdrawing its
argument for dismissal under the Florida Civil Rights Act (Counts
I-IV); therefore, the Court will not consider dismissal of these
counts.
For the reasons set forth below, the motion is granted
with leave to amend.
I.
This
is
discrimination
a
disability,
case
brought
age,
by
race,
and
plaintiff
national
Manuel
A.
origin
Ponce
(plaintiff or Ponce), a fifty-three year old Hispanic male of
Cuban descent, against his former employer of twenty-seven years,
the City of Naples (defendant or City).
Plaintiff filed a
thirteen count Complaint (Doc. #2) in state court on February 8,
2017, which was removed to this Court on March 8, 2017, based
upon
federal
question
jurisdiction.
The
Complaint
alleges
violations under the Florida Civil Rights Act (FCRA) (Counts IV), Family Medical Leave Act (FMLA) (Counts VI-VII), Americans
with Disabilities Act (ADA) (Counts VIII-X), Title VII (Count
XI), 42 U.S.C. § 1981 (Count XII), and the Age Discrimination in
Employment Act (ADEA) (Count XIII).
As alleged in plaintiff’s Complaint (Doc. #2), plaintiff was
initially hired by the City on or about September 26, 1988, in
the Solid Waste Division as a Service Worker II.
(Id. ¶ 8.)
Throughout his employment, plaintiff was also classified as a
Service Worker III, Equipment Operator III and IV, and Meter
Reader.
(Id. ¶ 9.)
In 2011, plaintiff was promoted to the
position of Heavy Equipment Operator, the position he held as of
the date of his termination of employment in February 2016.
¶ 10.)
(Id.
Plaintiff worked as a Front Load Driver from 2009-2013,
emptying large commercial dumpsters throughout the City.
(Id. ¶
11.)
In October 2013, plaintiff suffered a heart attack and
remained out of work for approximately one month.
12.)
(Doc. #2, ¶
Upon his return to work at the City, he was assigned to
drive a dumpster carrier, which was a smaller truck, and his job
function was to retrieve, exchange, and/or distribute dumpsters
- 2 -
throughout the City.
(Id.)
until in or about May 2015.
He remained in this job function
(Id.)
In December 2014, after experiencing pain in his right
shoulder, an MRI revealed a torn rotator cuff.
(Doc. #2, ¶ 13.)
At that time, plaintiff elected to forego any surgical or other
medical intervention and continued operating the dumpster carrier
without any problems.
coworker’s
perform
absence,
residential
(Id. ¶ 14.)
plaintiff’s
garbage
In April 2015, due to a
supervisor
collection
assigned
which
required
him
to
manual
pickup of garbage containers.
(Id. ¶ 15.)
injured his shoulder.
(Id.)
Plaintiff notified the City of his
injury
a
and
initiated
worker’s
In doing so, plaintiff
compensation
claim.
(Id.)
Plaintiff’s medical providers assigned him to light duty, which
he remained from May to August of 2015 while receiving various
medical treatments for his shoulder injury.
(Id. ¶ 16.)
The light duty assignments included picking weeds and other
landscape work on City property for which plaintiff was never
trained and had not previously done, and was otherwise physically
unequipped to perform.
(Doc. #2, ¶ 16.)
In July 2015, plaintiff
suffered a heat stroke and was taken to the emergency room;
despite this, the City assigned plaintiff to pick weeds again one
week later, when plaintiff suffered another heat stroke, requiring
medical attention.
(Id. ¶¶ 17-18.)
- 3 -
On or about August 19, 2015, plaintiff underwent surgical
repair of his shoulder, remaining out of work on FMLA leave until
on or about December 22, 2015.
(Doc. #2, ¶ 19.)
Upon returning
to work, the City inexplicably notified plaintiff that he was
being placed on probation.
(Id. ¶ 20.)
The City also told
plaintiff that he did not know how to speak English, and “speaks
gibberish.”
(Id. ¶ 21.)
January
2016,
19,
Furthermore, without justification, on
defendant
accused
plaintiff
of
misconduct
without justification and suspended his employment for three days.
(Id. ¶ 22.)
Defendant again accused plaintiff of misconduct on
January 25, 2016.
(Id. ¶ 23.)
On or about February 4, 2016, the City advised plaintiff
that he could resign his employment, and that if he failed to do
so, the City would terminate his employment.
(Doc. #2, ¶ 24.)
Plaintiff no longer works for the City and the City replaced
plaintiff with an individual who is significantly younger.
¶ 25.)
(Id.
Plaintiff has received a Notice of Right to Sue letter
from the Equal Employment Opportunity Commission.
(Id. ¶ 26.)
Defendant now moves to dismiss Counts VI, VIII, X, and XI1
for failure to state a claim.
1
Defendant withdrew its motion to dismiss as to Counts I-IV
(FCRA counts) (Doc. #13).
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II.
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 do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). 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).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court
must accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff, Erickson v.
Pardus, 551 U.S. 89 (2007), but “[l]egal 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).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
consistent with a defendant’s liability fall short of being
- 5 -
facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal citations omitted).
Thus, the
Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement
to relief.”
Iqbal, 556 U.S. at 679.
III.
A. FMLA Interference Claim (Count 6)
The City moves to dismiss Count 6, which is a claim for
interference with plaintiff’s rights under the Family Medical
Leave Act, 29 U.S.C. § 2615(a)(1), arguing that plaintiff does
not plead facts that his request to seek FMLA leave was interfered
with or that he was denied leave, citing the fact that plaintiff
was allowed to take FMLA leave.
(Doc. #10, pp. 11-13.)
Plaintiff
responds that he has pled that upon returning from FMLA leave on
December 22, 2015, he was not reinstated with the terms and
conditions equivalent to those he had before he took leave in
violation of his rights under the FMLA.
“Under the FMLA, an eligible employee shall be entitled to
a total of 12 workweeks of leave during any 12–month period for
a serious health condition that makes the employee unable to
perform the functions of her position.” Gilliard v. Georgia Dep’t
of Corr., 500 F. App’x 860, 864 (11th Cir. 2012).
Additionally,
“[a]n employee has the right following FMLA leave to be restored
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by the employer to the position of employment held by the employee
when the leave commenced or to an equivalent position.” 2
Martin
v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008).
“To protect this right, the FMLA allows employees to bring a
private cause of action for interference or retaliation.”
Hurley
v. Kent of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir. 2014).
To
prevail
on
a
FMLA
retaliation
claim,
“an
employee
must
demonstrate that his employer intentionally discriminated against
him in the form of an adverse employment action for having
exercised an FMLA right.”
Strickland v. Water Works & Sewer Bd.
of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001).
The
Complaint contains both interference (Count VI) and retaliation
(Count VII) claims, but the City only moves to dismiss the
interference claim.
To support a claim for interference, Ponce “must demonstrate
only that []he was denied a benefit to which she was entitled
under the FMLA.”
Schaaf v. Smithkline Beecham Corp., 602 F.3d
1236, 1241 (11th Cir. 2010) (quoting Martin, 543 F.3d at 1266–67
(11th Cir. 2008)).
return
to
an
The right to FMLA leave and the right to
equivalent
position
post-leave
are
both
FMLA
benefits. Gilliard, 500 F. App’x at 864; Martin, 543 F.3d at 1267.
2
An employer can deny the right to reinstatement, however,
if it can demonstrate that it would have discharged the employee
had he not been on FMLA leave.
O’Connor v. PCA Family Health
Plan, Inc., 200 F.3d 1349, 1353–54 (11th Cir. 2000).
- 7 -
As Ponce concedes that he was granted FMLA leave 3 (Doc. #2,
¶ 19), his claim for FMLA interference rests on his assertion
that “Defendant failed to cooperate with Plaintiff in his attempt
to exercise his FMLA rights, and otherwise interfered with,
restrained or denied Plaintiff’s exercise of or the attempt to
exercise his rights under the FMLA in direct violation of 29
U.S.C. § 2615(a)(1).”
(Id. ¶ 80.)
However, other than this
“formulaic recitation of the elements,” Ponce alleges no facts to
support his claim that his post-leave position at the City was
not equivalent to his pre-leave position.
Accordingly, Ponce’s
FMLA interference cause of action (Count VI) is dismissed with
leave to amend. 4
3
The City does not dispute that shoulder surgery is a serious
health condition. 29 U.S.C. § 2611(11).
4
The City argues for the first time in its Reply that the
FMLA interference claim fails because plaintiff’s alleged
termination occurred after he took leave in excess of the 12 weeks
allowed under the FMLA, citing Jones v. Gulf Coast Health Care of
Delaware, LLC, 854 F.3d 1261 (11th Cir. 2017), a decision decided
after the City submitted its Motion to Dismiss. “The purpose of
a reply brief is to rebut any new law or facts contained in an
opposition’s response to a request for relief before the Court.”
Tardif v. People for Ethical Treatment of Animals, No. 2:09-cv537FtM-29SPC, 2011 WL 2729145, at *2 (M.D. Fla. July 13, 2011).
Because the arguments were not a true “reply” in the sense that
it does not rebut any arguments raised by plaintiff’s opposition,
and because plaintiff has otherwise not had the opportunity to
respond to this new theory of dismissal, the Court will not
consider this argument as it relates to the pending Complaint.
- 8 -
B. ADA Claims
Ponce
has
brought
claims
under
the
ADA
for
failure
to
accommodate (Count VIII), disparate treatment (Count IX), and
retaliation (Count X).
The City argues as to all counts that
plaintiff’s claimed disability is supported by nothing more than
conclusory allegations regarding plaintiff’s condition of which
the City was unaware.
(Doc. #10, pp. 4-8.)
1. Disability
The
ADA
prohibits
discrimination
“against
a
qualified
individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment.”
42 U.S.C. § 12112(a).
The ADA
defines “disability” as either “a physical or mental impairment
that substantially limits one or more major life activities ...
a record of such an impairment ... or being regarded as having
such an impairment.”
42 U.S.C. § 12102(1).
In turn, “major life
activities” is defined to include “caring for oneself, performing
manual
tasks,
standing,
seeing,
lifting,
hearing,
bending,
eating,
speaking,
sleeping,
breathing,
walking,
learning,
reading, concentrating, thinking, communicating, and working.”
Id. § 12102(2)(A).
“Major life activities” also include the
operation of “major bodily function[s] including, but not limited
to, functions of the immune system, normal cell growth, digestive,
- 9 -
bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.”
Id. § 12102(2)(B).
The
EEOC’s regulations state that “major life activities” include
functions of the cardiovascular and musculoskeletal systems.
C.F.R. § 1630.9(i)(1)(ii).
29
The definition of “disability” shall
be “construed in favor of broad coverage of individuals under
this chapter, to the maximum extent permitted by the terms of
this chapter.”
42 U.S.C. § 12102(4)(A).
Here, in support of his ADA claims, Ponce alleges that he
“suffered from the medical conditions as heretofore described and
was
substantially
limited
as
having
an
impairment
that
substantially limited one or more of life’s major activities.”
(Doc. #2, ¶¶ 95, 105, 115.)
The Complaint further alleges that
following plaintiff’s heart attack, he remained out of work due
to his medical condition.
(Id. ¶ 12.)
And following a workplace
accident where plaintiff injured his shoulder, he initiated a
worker’s compensation claim and performed light duty at the
direction of his medical providers.
(Id. ¶¶ 15-16.)
Plaintiff
remained out of work on FMLA leave from August to December 2015,
following the surgical repair of his shoulder.
(Id. ¶ 19.)
From
these allegations, the Court may draw the reasonable inference
that
plaintiff
musculoskeletal
has
impairments
systems
that
of
affect
- 10 -
the
cardiovascular
major
life
and
activities,
including lifting, bending, and working.
The Complaint thus
plausibly alleges that plaintiff is “disabled” under the ADA. 5
2. Failure to Accommodate (Count VIII)
Defendant argues that plaintiff does not allege facts from
which
it
can
be
inferred
that
he
requested
accommodation from the City at any time.
a
disability
Plaintiff responds that
his physician’s light work restrictions constitute a request for
a reasonable accommodation.
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
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, 652 F. App’x 765, 767 (11th Cir. 2016)
5
The Complaint also plausibly alleges that defendant knew of
plaintiff’s impairments. (Doc. #2, ¶¶ 95, 105, 115.)
- 11 -
(per curiam) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001)).
Plaintiff challenges the first and third
elements.
As discussed above, the Court has found that plaintiff has
adequately pled that he suffers from a disability as defined by
the ADA.
In order to satisfy the pleading burden with respect to
the third element of a failure to accommodate, 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.
accommodation
employee
to
is
only
perform
See 42 U.S.C. § 12112(b)(5)(A).
reasonable
the
if
essential
it
allows
functions
the
of
the
An
disabled
job
in
question. Lucas, 257 F.3d at 1255. What constitutes a reasonable
accommodation depends on the circumstances, but it may include
“job restructuring, part-time or modified work schedules, [and]
reassignment to a vacant position” among other things. 42 U.S.C.
§
12111(9)(B).
reasonable
“Moreover,
accommodation
is
an
not
employer’s
triggered
demand for an accommodation has been made.
818
F.3d
1249,
1256
(11th
Cir.
2016)
duty
to
provide
unless
a
specific
Frazier-White v. Gee,
(quoting
Gaston
v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363–64 (11th
Cir. 1999)) (“[T]he initial burden of requesting an accommodation
is on the employee.
Only after the employee has satisfied this
- 12 -
burden and the employer fails to provide that accommodation can
the
employee
prevail
on
a
claim
that
her
employer
has
discriminated against her.”).
Here,
in
support
of
his
failure
to
accommodate
claim,
plaintiff states that “defendant discriminated against plaintiff
by wrongfully denying his requests for a reasonable accommodation
and
instead
forcing
him
to
pick
weeds
in
extreme
weather
conditions which plaintiff was not equipped to handle.”
#2, ¶ 97.)
(Doc.
The Court agrees with the City that plaintiff has not
plausibly alleged that he made a reasonable accommodation request
that was refused by the City, and the Court is not otherwise
convinced
that
satisfies
as
a
an
light-work
accommodation
duty
restriction
request
pleading as much in the Complaint. 6
without
automatically
specifically
Therefore, Count VIII is
dismissed without prejudice with leave to amend.
3. Retaliation (Count 10)
The City next argues that plaintiff’s ADA retaliation claim
does not allege any facts that he engaged in protected activity.
The ADA prohibits retaliation “against any individual because
such individual has opposed any act or practice made unlawful by
this chapter.”
42 U.S.C. § 12203(a).
This prohibition is
analyzed “under the same framework ... employ[ed] for retaliation
6
Indeed,
proposition.
plaintiff
cites
no
- 13 -
binding
authority
for
this
claims arising under Title VII.”
Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997).
Accordingly, “[t]o establish a prima facie case of retaliation,
a plaintiff must show: (1) statutorily protected expression; (2)
adverse employment action; and (3) a causal link between the
protected expression and the adverse action.”
Id.
A plaintiff’s
request for a reasonable accommodation under the ADA constitutes
protected activity.
See Lucas, 257 F.3d at 1261; Siudock v.
Volusia Cnty. Sch. Bd., No. 12–CV–503, 2013 WL 6187537, at *16
(M.D. Fla. Nov. 25, 2013) aff’d, No. 13–15576, 2014 WL 2463009
(11th Cir. June 3, 2014).
Plaintiff alleges the following in support of his retaliation
claim: “Following and as a result of plaintiff’s request for
reasonable accommodation, defendant retaliated against plaintiff
by instead forcing him to pick weeds in extreme weather conditions
which plaintiff was not equipped to handle, by placing him on
probation, and by suspending and terminating his employment.”
(Doc. #2, ¶ 116.)
As set forth above, the Court has found that
plaintiff has not plausibly alleged that he made a reasonable
accommodation request to the City.
Therefore, the Court finds
that as currently pled, the Complaint does not sufficiently allege
that plaintiff engaged in a statutorily protected activity for
which the City retaliated against him.
Therefore, Count X is
dismissed without prejudice with leave to amend.
- 14 -
C. Title VII, Race/National Origin Discrimination (Count 11)
Plaintiff alleges race and national origin discrimination in
violation
of
Title
VII
of
the
Civil
Rights
Act
of
1964.
Specifically, plaintiff alleges that he is of Cuban descent and
therefore a member of a protected class and that his race and
national
origin
treatment
in
was
placing
a
motivating
him
on
terminating his employment.
factor
probation,
in
the
defendant’s
suspending
(Doc. #2, ¶¶ 122-23.)
him,
and
The City
argues that this claim fails because Ponce has not alleged any
discriminatory intent on the part of the City.
Assuming
plaintiff’s
proof
of
discrimination
will
be
circumstantial, to establish a prima facie case under Title VII,
plaintiff must show: (1) that he belongs to a protected class;
(2) that she suffered an adverse employment action; (3) that he
was qualified to do his job; and (4) that he was treated less
favorably
than
protected class.
similarly
situated
employees
outside
of
the
Lathem v. Dep’t of Children & Youth Serv., 172
F.3d 786, 792 (11th Cir. 1999).
As the Eleventh Circuit has
emphasized, “[d]emonstrating a prima facie case is not onerous;
it requires only that the plaintiff establish facts adequate to
permit an inference of discrimination.”
Holified v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997).
Here,
plaintiff
has
alleged
that
he
is
a
member
of
a
protected class (Doc. #2, ¶ 123) and that he suffered adverse
- 15 -
employment actions (id. ¶ 122), but the Court finds no plausible
allegations wherein plaintiff alleges that he was qualified to do
his job, nor that the City treated him less favorably than
similarly situated employees outside of the protected class.
Therefore, Count XI will be dismissed without prejudice with leave
to amend.
D. Section 1981 (Count 12)
Plaintiff agrees that his Section 1981 claim fails, and he
agrees to withdraw this claim.
(Doc. #15, p. 9.)
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Defendant’s Motion to Dismiss (Doc. #10) is GRANTED.
Counts VI, VIII, X, and XI are DISMISSED without prejudice to
filing an Amended Complaint within FOURTEEN (14) days of this
Opinion and Order.
2. Count XII is deemed withdrawn.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2017.
Copies:
Counsel of Record
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22nd
day
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