Ponce v. City of Naples
Filing
30
OPINION AND ORDER granting 25 motion to dismiss and Counts I, IV, VIII, and XI are dismissed with prejudice. Count VI is deemed withdrawn. Signed by Judge John E. Steele on 10/13/2017. (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 Second
Motion to Dismiss (Doc. #25) filed on July 21, 2017.
filed a Response (Doc. #26) on July 28, 2017.
Plaintiff
For the reasons set
forth below, the motion is granted.
I.
On June 22, 2017, this Court granted defendant’s First Motion
to Dismiss certain counts for failure to state a claim with leave
to amend.
(Doc. #21.)
On June 26, 2017, plaintiff filed an
Amended Complaint (Doc. #22).
Defendant again moves to dismiss
certain counts for failure to state a claim, arguing that the
Amended Complaint does not remedy the defects identified by this
Court in its dismissal order.
The factual allegations as set forth in the Amended Complaint
are nearly identical to the initial Complaint and are set forth in
detail
in
this
Court
previous
Opinion
and
Order
(Doc.
#21).
Therefore,
for
the
most
part
the
Court
will
race,
and
not
repeat
the
allegations here.
This
is
a
disability,
age,
national
origin
discrimination case brought by plaintiff Manuel A. Ponce, a fiftythree year old Hispanic male of Cuban descent, against his former
employer of twenty-seven years, the City of Naples (defendant or
City).
Plaintiff has filed a twelve-count Amended Complaint (Doc.
#2), alleging violations under the Florida Civil Rights Act (FCRA)
(Counts I-V), Family Medical Leave Act (FMLA) (Counts VI-VII),
Americans with Disabilities Act (ADA) (Counts VIII-X), Title VII
(Count XI), and the Age Discrimination in Employment Act (ADEA)
(Count XII).
Defendant moves to dismiss Counts I, IV, VIII, and
XI. 1
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.”
(citation
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
omitted).
To
survive
1
dismissal,
the
factual
Plaintiff agrees to withdraw his claim for FMLA interference
(Count VI) in light of Jones v. Gulf Coast Health Care of Delaware,
LLC, 854 F.3d 1261 (11th Cir. 2017). (Doc. #26, p. 2.)
- 2 -
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).
This requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”
Ashcroft v. 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.”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
facially plausible.”
“Factual allegations that are merely
defendant’s
liability
fall
short
of
being
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.
- 3 -
III.
A. ADA Failure to Accommodate Claim (Count 8)
The Court previously found that plaintiff did not plausibly
allege that he made a reasonable accommodation request that was
refused by the City, and the Court was not otherwise convinced
that a light-work duty restriction automatically satisfies as an
accommodation request without specifically pleading as much in the
Complaint.
(Doc. #21, p. 13.)
Defendant argues that, like the
initial Complaint, plaintiff again does not allege facts from which
it can be inferred that he requested a disability accommodation
from the City at any time.
Plaintiff responds that in compliance
with this Court’s Opinion and Order, he alleges in the Amended
Complaint that “[t]he requests by Plaintiff’s medical providers
that he be assigned to light duty constitute requests for a
reasonable accommodation within the meaning of the ADA.”
(Doc.
#22, ¶ 104.)
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).
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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)
(per curiam) (citing Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001)).
Plaintiff challenges the third element.
In order to satisfy the pleading burden with respect to the
third element of a failure to accommodate, the Amended 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).
An
accommodation is only reasonable if it allows the disabled employee
to perform the essential functions of the job in question.
257 F.3d at 1255.
depends
on
the
restructuring,
Lucas,
What constitutes a reasonable accommodation
circumstances,
part-time
or
but
it
modified
work
may
include
schedules,
“job
[and]
reassignment to a vacant position” among other things. 42 U.S.C.
§
12111(9)(B).
“Moreover,
an
employer’s
duty
to
provide
reasonable accommodation is not triggered unless a specific demand
for an accommodation has been made.
Frazier-White v. Gee, 818
F.3d 1249, 1256 (11th Cir. 2016) (quoting Gaston v. Bellingrath
Gardens & Home, Inc., 167 F.3d 1361, 1363–64 (11th Cir. 1999))
- 5 -
(“[T]he initial burden of requesting an accommodation is on the
employee.
Only after the employee has satisfied this burden and
the employer fails to provide that accommodation can the employee
prevail on a claim that her employer has discriminated against
her.”).
The
regulations
governing
the
ADA
explain
that
an
employer may need “to initiate an informal, interactive process
with the individual with a disability in need of an accommodation”
to identify the person’s limitations and potential reasonable
accommodations that could overcome those limitations.
29 C.F.R.
§ 1630.2(o)(ii)(3); see also Spears v. Creel, 607 F. App’x 943
(11th Cir. 2015) (finding that an employer has no duty to engage
in an “interactive process” or to show undue hardship if the
employee fails to identify a reasonable accommodation).
Here, plaintiff’s Amended Complaint alleges in the “General
Allegations” section 2 that following a shoulder injury, worker’s
comp medical providers requested that if defendant was going to
continue
assigning
plaintiff
to
perform
residential
garbage
collection, then defendant should assign plaintiff to light duty.
(Doc. #22, ¶ 16.)
Instead of returning plaintiff back to his
position operating a dumpster carrier vehicle, defendant “elected
to place Plaintiff on light duty.”
(Id. at ¶ 17.)
Plaintiff goes
on to state that “[f]rom approximately May 2015 to August 2015
2
The paragraphs of the “General Allegations” section are
incorporated into each Count.
- 6 -
Defendant assigned Plaintiff to light duty” picking weeds and other
landscaping, during which he suffered a heat stroke.
18-19.)
(Id. at ¶¶
Thus, plaintiff does not dispute that he was placed on
“light duty” by the City – the accommodation he requested - but
seemingly pleads that the light duty assigned was not a reasonable
accommodation because it was work that he was physically unequipped
to do given his disabilities.
City
denied
plaintiff
an
Yet this does not mean that the
accommodation
that
he
requested.
Plaintiff does not allege that after he was placed on light duty
that he requested a different and less stressful job assignment
that
was
denied
by
the
City.
Therefore,
plaintiff
has
not
satisfied his initial burden of showing that he requested an
accommodation
that
was
refused
by
the
City.
Accordingly,
dismissal is appropriate.
B. Title VII, Race/National Origin Discrimination (Count 11)
The
Court
previously
found
no
plausible
allegation
that
plaintiff was qualified to do his job, nor that the City treated
him less favorably than similarly situated employees outside of
the protected class.
(Doc. #21, pp. 15-16.)
In compliance with
the Court’s Opinion and Order, plaintiff states that he alleges in
the Amended Complaint that he “was qualified to do his job and
other jobs in the Solid Waste Division” and that “Defendant treated
Plaintiff less favorable than similarly situated employees outside
the protected class.”
(Doc. #22, ¶¶ 135, 137.)
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Plaintiff further
cites the fact that because he was employed by the City for twentyseven
years,
as
alleged
in
the
Amended
undoubtedly a qualified individual.
Complaint,
he
was
The City argues that the
Amended Complaint still fails to plead ultimate facts that he was
qualified to do his job, or that he was treated less favorably,
and merely recites legal conclusions instead.
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 similarly situated employees outside of the protected class.
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.”
1562 (11th Cir. 1997).
Holified v. Reno, 115 F.3d 1555,
“Although a plaintiff need not satisfy the
McDonnell Douglas 3 framework at the pleading stage in order to
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this framework, the plaintiff must first establish a prima
facie case, which creates a presumption of unlawful discrimination
against the employee.
The employer may then rebut that
presumption with legitimate, non-discriminatory reasons for the
adverse employment actions.
The employee must then proffer
sufficient evidence to create a genuine issue of material fact
that the defendant’s articulated reasons are pretextual.
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state a claim for disparate treatment, the ordinary rules for
assessing the sufficiency of a complaint [still] apply.”
Uppal
v. Hosp. Corp. of Am., 482 F. App’x 394, 396 (11th Cir. 2012)
(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002);
see also Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955,
974 (11th Cir. 2008) (“Although a Title VII complaint need not
allege facts sufficient to make out a classic McDonnell Douglas
prima facie case, it must provide enough factual matter (taken as
true)
to
suggest
intentional
race
discrimination.”)
Accord
Twombly, 550 U.S. at 546 (2007) (finding that the new plausibility
standard does not run counter to Swierkiewicz).
In
Upall,
the
Eleventh
Circuit
found
that
a
formulaic
recitation of elements of a prima facie Title VII case is not
sufficient
as
the
plaintiff
“never
once
supplements
these
allegations of disparate treatment with any factual detail, such
as even a brief description of how the alleged comparator employees
were outside of her protected class,” or that gender, race, or
national
origin
played
any
Upall, 482 F. App’x at 396.
role
in
the
disparate
treatment.
In cases similar to this in this
District, judges have dismissed discrimination claims when the
allegations
relating
insufficiently pled.
to
similarly
situated
employees
are
For example, in Uppal v. Hospital Corp. of
America, 8:09–cv–00634–VMC–TBM, 2011 WL 2691869 (M.D. Fla. July 5,
2011), the District Court noted that the plaintiff’s complaint
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stated in a conclusory fashion that other similarly situated
employees not of plaintiff’s gender, race, and/or national origin
were not treated in the same way as plaintiff.
Id. at *3.
The
court found that plaintiff did not allege any facts to support
these conclusory allegations in violation of Iqbal.
went
on
to
note
that
“[d]istrict
courts
The court
frequently
dismiss
discrimination claims when the allegations of disparate treatment
are nothing more than legal conclusions unsupported by any facts.”
Uppal, 2011 WL 2691869, at *3 (citing a number of cases for this
proposition). Uppal was appealed to the Eleventh Circuit, and
affirmed, as noted above.
Uppal v. Hosp. Corp. of Am., 482 F.
App’x 394, 396 (11th Cir. 2012).
Here, plaintiff merely points to Paragraph 137 of the Amended
Complaint, which merely recites the fourth element of a prima facie
case.
Although plaintiff is not required at the pleading stage
to prove a prima facie case and satisfy the McDonnell Douglas
framework, he is still required to plead more than a formulaic
recitation of the elements pursuant to Twombly and Iqbal; which,
as courts have noted, require more than just a recitation of the
fourth prong of a Title VII prima facie case.
Plaintiff here has
simply stated that there were other employees that were similarly
situated outside his protected class, who received more favorable
treatment.
(Doc. #22, ¶ 137.)
Such a recitation, without any
allegations
of
to
specific
facts
- 10 -
explain
how
the
disparate
treatment
occurred
to
even
give
discrimination, is insufficient.
rise
to
an
inference
of
Thus, defendant’s Motion to
Dismiss in this regard will be granted.
C. FCRA Claims for Failure to Accommodate and Race/National
Origin Discrimination (Counts I, IV)
Federal law interpreting Title VII and ADA discrimination
suits is controlling authority when analyzing FCRA claims.
Harper
v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)
(finding that the complaint fails for the same reasons under Title
VII and the FCRA); Holly v. Clarison Indus., LLC, 492 F.3d 1247,
1255 (11th Cir. 2007) (considering ADA and FCRA claims together
because they are analyzed using the same framework).
Thus, for
the same reasons stated above, plaintiff’s FCRA claims for failure
to accommodate and race/national origin discrimination fail.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s Second Motion to Dismiss (Doc. #25) is GRANTED.
Counts I, IV, VIII, and XI are dismissed with prejudice.
2. Count VI is deemed withdrawn.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2017.
Copies:
Counsel of Record
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13th
day
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