Rohttis v. Lee County School District

Filing 50

OPINION and ORDER granting in part and denying in part 46 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. Defendant's Request for Oral Argument 49 on its Motion to Dismiss is denied as moot. Plaintiff is g ranted leave to file a third (and FINAL) amended complaint on or before August 16, 2022. Defendant shall answer the remaining counts of the Second Amended Complaint, or respond to a third amended complaint if one is filed, on or before August 31, 2022. See ORDER for details.. Signed by Judge John E. Steele on 8/1/2022. (TLP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NERY ROHTTIS,
Plaintiff,
v.

Case No:

2:21-cv-737-JES-NPM

THE SCHOOL DISTRICT OF LEE
COUNTY, FLORIDA,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. #46)
filed on June 15, 2022. Plaintiff did not file a response, and the
time to do so has passed.

On July 15, 2022, Defendant filed a

Request for Oral Argument on its Motion to Dismiss.

(Doc. #49.)

For the reasons set forth below, the motion is granted in part and
denied in part, and the request for oral argument is denied as
moot.
I.
A. Factual Background
The

allegations

termination

of

in

the

plaintiff

Second

Nery

Amended

Rohttis’

Complaint

concern

(Plaintiff)

19-year

employment with defendant – the School District of Lee County,
Florida (Defendant or School District). (Doc. #40, ¶ 8.) Plaintiff
worked as a school bus operator on behalf of the School District.
1

(Id.) On May 15, 2018, Plaintiff suffered a work-related accident
which caused injuries to Plaintiff’s left shoulder, hip and hand,
and

lower

back.

(Id.,

¶

11.)

Plaintiff

filed

a

worker’s

compensation claim on the same day as her work accident. (Id.)
Following the accident, Plaintiff’s medical providers placed
her on light-duty work restrictions, which included not lifting
anything above her head. (Id., ¶ 12.) In November 2018, the School
District accommodated Plaintiff’s work restrictions by reassigning
Plaintiff to various jobs, including an “English Speaker Other
Languages

(ESOL)

Paraprofessional;

In-School

Suspension

(ISS)

Paraprofessional; and/or various assignment(s) as the Lee County
School District deemed necessary.” (Id., ¶ 13.)
On April 9, 2019, Plaintiff’s treating orthopedic surgeon,
Dr. Gomez, released Plaintiff back to regular-duty work, but noted
that maximum medical improvement (MMI) could not be determined.
(Id., ¶ 14.)
On May 2, 2019, Plaintiff successfully completed the U.S.
Department of Transportation Federal Motor Carrier Safety Medical
Examination and qualified for a “two-year driving certificate.”
(Id., ¶ 15.) Just five days later, Plaintiff underwent a “driver’s
test” at Defendant’s request, despite the School District having
knowledge

that

Plaintiff

had

not

been

released

by

her

pain

management physician, Dr. Tafel. (Id., ¶ 16.) During Plaintiff’s

2

driving test, she experienced physical difficulties with her left
hand. (Id., ¶ 17.)
On May 17, 2019, Plaintiff met with Yvonne Steward (Supervisor
of

Transportation

West)

and

Richard

Purdue

(Director

of

Transportation West), both of whom directed Plaintiff not to return
to

work

until

she

spoke

with

Cathy

Richards,

a

workers’

compensation adjuster. (Id., ¶ 18.) During the meeting, Plaintiff
asked Ms. Steward and Mr. Purdue if she could return to work at
the schools where she was previously assigned, but they denied her
request. (Id.)
Dr. Tafel released Plaintiff to regular-duty work on May 20,
2019, with a MMI rating of two percent. (Id., ¶ 19.) Dr. Tafel
diagnosed Plaintiff with left upper extremity pain, and a “physical
impairment that substantially limited one or more major life
activities.”

(Id.)

On

the

same

day,

Plaintiff

arrived

at

“Transportation West” to work, but Mr. Purdue informed Plaintiff
that she was suspended (without pay) from her employment with the
School

District

forward.”

and

(Id.,

¶¶

that
20,

she
21.)

must
Mr.

use
Purdue

her

“sick

did

not

days

going

provide

an

explanation for Plaintiff’s suspension. (Id., ¶ 21.)
Plaintiff sent a certified letter to the School District,
requesting

an

explanation

for

her

suspension.

(Id.,

¶

23.)

Defendant received the certified letter on May 28, 2019. (Id., ¶
24.) For two months following her suspension, Plaintiff regularly
3

inquired about her “work status”, but each time she traveled to
the School District’s Transportation West, Plaintiff was told she
should not be there.

(Id., ¶ 25.)

On August 7, 2019, Plaintiff received an unsigned letter from
Roger Lloyd (Director of Transportation), informing Plaintiff that
she “failed to report to work since May 30, 2019 . . . [and he]
will be recommending to the Superintendent that [Plaintiff’s]
contract will not renew for [her] . . . position as a school bus
operator, effective August 7, 2019.”

(Id., ¶ 28.)

Plaintiff

immediately sent a certified letter to the U.S. Equal Employment
Opportunity Commission (EEOC), alleging that the School District
discriminated against her due to disability, wrongfully terminated
her employment, and retaliated against her for filing a workers’
compensation claim. (Id., ¶ 29.)

Plaintiff also informed the

School District’s Superintendent, Greg Adkins, and Director of
Human Resources, Angela Pruitt, that she believed her termination
was unfair and was appealing the School District’s decision. (Id.,
¶ 30.)

Prior to her termination, Plaintiff did not have any

disciplinary actions noted in her personnel folder. (Id., ¶ 10.)
B. Procedural Background
On October 6, 2021, Plaintiff initiated this lawsuit against
Defendant upon filing a Complaint with this Court.
November

23,

2021,

Defendant

filed

a

motion

to

(Doc. #2.) On
dismiss

the

Complaint pursuant to Rule 12(b)(6), which the Court granted on
4

February

22,

2022.

(Doc.

#35.)

Plaintiff

was

provided

an

opportunity to file an Amended Complaint if she chose to do so.
Plaintiff

filed

an

Amended

Complaint

on

March

8,

2022,

and

Defendant again sought to dismiss her claims for failure to state
a claim. (Doc. #36.) Rather than file a response, Plaintiff filed
a

Second

Amended

Complaint

on

May

10,

2022,

which

she

also

characterized as a motion for leave to file the complaint. (Doc.
#40, p. 1 n.1.)

The Court issued an Order granting Plaintiff’s

motion for leave and dismissed Defendant’s motion to dismiss the
Amended Complaint as moot, giving Defendant twenty-one days to
respond to Plaintiff’s Second Amended Complaint (SAC). (Doc. #41.)
Defendant timely filed a motion a motion to dismiss the SAC. (Doc.
#46.)
The

operative

pleading,

the

eight-count

Second

Amended

Complaint, asserts claims for employment discrimination pursuant
to the American Disabilities Act (ADA) and the Americans with
Disabilities Act Amendments Act ("ADAAA"), 42 U.S.C. § 12101 et
seq., the Family and Medical Leave Act of 1933 (FMLA), 29 U.S.C.
§ 2601, et seq., the Florida Civil Rights Act (FCRA) “as cited
within the Lee County School District Policies 1.21, 1.22, 5.20,
5.22, 5.25, 5.28, and 601,” Florida Statute Chapter 440, Workers’
Compensation . . . .” (Doc. #40, ¶ 2.) Plaintiff alleges the
following claims against the School District: (1) violation of the
FMLA and failure to accommodate disability; (2) violation of the
5

FMLA – retaliation

(3) violation of the ADA, as amended; (4)

violation

Florida

of

the

Civil

Rights

Act

–

disability

discrimination; (5) violation of the ADA, as amended – retaliation;
(6) violation of the Florida Civil Rights Act – retaliation; (7)
breach of contract/wrongful termination; and (8) violation of the
Florida Workers’ Compensation – retaliation. (Id., pp. 7-22.)
Defendant moves to dismiss all counts in the SAC pursuant to
Rule 12(b)(6) because they do not provide factual allegations to
support

Plaintiff’s

right

to

relief.

(Doc.

#46,

pp.

1.)

Defendant’s arguments are addressed below.
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

unadorned,

This requires

the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations
omitted).
6

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.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (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. Count I – Violation of FMLA and Failure to Accommodate1

Count I of the SAC is entitled “Violation of Family and
Medical Leave Act (FMLA) Failure to Accommodate Disability.” Count
I does not indicate whether Plaintiff is asserting an interference
or retaliation claim under the FMLA. However, because Count II
asserts a FMLA—retaliation claim, the Court will construe Count I
as asserting an interference claim. Furthermore, Count I’s title
indicates that Plaintiff is also asserting a failure to accommodate
claim under the ADA, but there are no allegations that Defendant
failed to accommodate a disability.
Thus, the Court will not
1

7

Count I of the SAC alleges that Plaintiff suffered from a
serious health condition, that she informed the School District of
her need for leave due to a serious health condition, and that the
School District determined Plaintiff was eligible for leave, but
failed to grant leave and terminated her employment. (Doc. #40, ¶¶
36-37, 40, 45.)
The FMLA guarantees the rights of eligible employees to "12
workweeks of leave during any 12-month period . . . [b]ecause of
a serious health condition that makes the employee unable to
perform

the

functions

2612(a)(1)(D).

of

the

position[.]"

29

U.S.C.

§

To protect this right, the FMLA authorizes two

types of claims — interference and retaliation. See Strickland v.
Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206
(11th Cir. 2001).

An interference of rights occurs when an

employer interferes with, restrains, or denies the exercise or
attempted exercise of rights or benefits under the FMLA. See 29
U.S.C. § 2615(a)(1); Pereda v. Brookdale Senior Living Cmtys.,
Inc., 666 F.3d 1269, 1272 (11th Cir. 2012) (explaining that
interference claims involve an "employee assert[ing] that his
employer

denied

or

otherwise

interfered

with

his

substantive

rights under the [FMLA]."). To state a claim for interference, a
plaintiff must demonstrate that she was entitled, under the FMLA,

discuss whether Count I sets forth a plausible claim under the
ADA.
8

to a benefit that she was denied. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
Defendant argues that Plaintiff’s FMLA interference claim
should be dismissed as Plaintiff “failed to allege that she was
entitled to leave under the FMLA because she does not allege facts
to show that she provided sufficient notice to the School District
of her need for FMLA leave.” (Doc. #46, p. 4.) More specifically,
the Defendant asserts that the SAC does not allege any facts about
when or whom Plaintiff informed about her need for leave,

the

means by which the alleged notice was provided to the School
District, or the anticipated timing or duration of her alleged
request. (Id., p. 5.)
"While

suffering

from

a

serious

health

condition

is

necessary, it is not sufficient for an employee to earn FMLA
leave." Finch v. Morgan Stanley & Co. LLC, No. 15-81323-Civ, 2016
U.S. Dist. LEXIS 106305, 2016 WL 4248248, at *4 (S.D. Fla. Aug.
11, 2016).

Under the FMLA, "[a]n employee must [also] provide the

employer at least 30 days advance notice before FMLA leave is to
begin if the need for leave is foreseeable based on [planned
medical treatment for a serious health condition]. . . . If 30
days notice is not practicable because of lack of knowledge . . .
notice must be given as soon as practicable." Avena v. Imperial
Salon & Spa, Inc., 740 F. App'x 679, 681 (11th Cir. 2018) (quoting
29 C.F.R. § 825.302(a)). The notice provided must be "sufficient
9

to make the employer aware that the employee needs FMLA-qualifying
leave, and the anticipated timing and duration of the leave." Id.
(quoting 29 C.F.R. § 825.302(c)).
The Court finds that Plaintiff has failed to state a plausible
FMLA

interference

claim.

Plaintiff

only

provides

a

formulaic

recitation of the elements of this claim, i.e., that she requested
leave due to a serious medical condition and was not granted leave
and terminated.2

Such bare bone assertions will not suffice.

Twombly, 550 U.S. at 555 (for plaintiff to show entitlement to
relief it

“requires more than labels and

conclusions, and a

formulaic recitation of the elements of a cause of action will not
do.”).

With respect to the notice requirement, the SAC simply

states that “Ms. Rohttis complied with all of the notice and due
diligence requirements of the FMLA,” with no additional factual
support.

Furthermore, Plaintiff does not allege that she ever

informed the School District about the anticipated timing or
duration of her leave.

Even viewing the allegations in a light

most favorable to Plaintiff, her claim for FMLA interference is
insufficient to survive dismissal under Rule 12(b)(6) as her
allegations are conclusory and unsupported by facts. See Iqbal,

In seeming contradiction to these allegations, Paragraph 52
of the SAC alleges that Plaintiff was terminated from her
employment with the School District because she requested and took
FMLA leave, and demanded reinstatement from such leave. (Doc. 40,
¶ 52.)
2

10

556 U.S. at 678 (“Threadbare recitals of the elements of a cause
of

action,

supported

suffice.”).

by

mere

conclusory

statements,

do

not

Defendant’s motion to dismiss Count I is therefore

granted, without prejudice.
B. Count II — Retaliation In Violation Of FMLA
Count II of the SAC alleges that the School District violated
the FMLA by retaliating against Plaintiff when it terminated her
employment

for

condition.

(Doc. #40, ¶¶ 50, 53.)

“The

FMLA

requesting

prohibits

leave

due

employers

to

from

her

serious

medical

retaliating

against

employees for engaging in protected activities.”
Enterprises, Inc., 981 F.3d 1265, 1275

Munoz v. Selig

(11th Cir. 2020).

To

establish a FMLA retaliation claim, Plaintiff "must demonstrate
that h[er] employer intentionally discriminated against h[er] in
the form of an adverse employment action for having exercised an
FMLA right."

Aponte v. Brown & Brown of Fla., Inc., 806 F. App'x

824, 829 (11th Cir. 2020) (quoting Strickland, 239 F.3d at 1207).
To establish a prima facie case of FMLA retaliation, Plaintiff
must allege that "(1) [s]he engaged in statutorily protected
activity, (2) [s]he suffered an adverse employment decision, and
(3) the decision was causally related to the protected activity."
Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1268 (11th Cir.
2008).

11

Defendant argues that Plaintiff’s retaliation claim must be
dismissed because the SAC does not allege any facts tending to
show a causal relationship between any protected activities and
any alleged adverse employment action.

(Doc. #46, p. 6.)

Rather,

Defendant asserts that Plaintiff summarily concludes “[a] causal
connection exists between Ms. Rohttis [sic] request for FMLA
protected leave and reinstatement and LCSD termination of her
employment” which fails to provide any facts about her alleged
protected activity, including when she allegedly requested FMLAqualifying leave.

(Id., citing Freytes–Torres v. City of Sanford,

270 F. App’x 885, 893 (11th Cir. 2008) (To satisfy the causation
prong of a prima facie case, close temporal proximity may be
sufficient to show that the protected activity and the adverse
action were not wholly unrelated)).
As discussed above, Plaintiff did not provide any facts that
sufficiently allege that she engaged in protected activity under
the FMLA, including giving the School District notice of the need
for leave.

Just as with an FMLA interference claim, “notice” of

the need for FMLA leave is a requisite for a FMLA retaliation
claim. Avena, 740 F. App'x at 681 (Notice must be given under
"under both the discrimination and the interference provisions of
the FMLA."); Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1167
(11th Cir. Fla. 2014) (An employee must actually qualify for FMLA
leave in addition to providing appropriate notice to assert a valid
12

interference or retaliation claim).

Thus, Plaintiff has not pled

sufficient facts as to the first element of her retaliation claim.
Because Plaintiff has not adequately alleged that she engaged
in

any

protected

activity

under

the

FMLA,

Plaintiff

cannot

plausibly show that a causal link exists between any protected
activity and adverse employment action. The Court therefore grants
Defendant’s

motion

to

dismiss

Count

II

of

the

SAC,

without

prejudice.
C. Count III and Count IV – Disability Discrimination In
Violation of the ADA and FCRA
Count III and Count IV of the SAC allege that the School
District unlawfully discriminated against Plaintiff in violation
of the ADA and FCRA, respectively. (Doc. #40, ¶¶ 56-70, 71-85.)
Specifically, Plaintiff alleges that she “has perceived mental
impairments that would substantially limit one or more major life
activities and bodily functions, has a record of the impairment,
and is regarded by the Defendant as having such impairments.” (Id.,
¶¶ 58, 73.)

Plaintiff further alleges that the School District

discriminated against her “because of her perceived disabilities.”
(Id., ¶¶ 63, 78.)
“[D]isability-discrimination

claims

under

the

analyzed using the same framework as ADA claims.”

FCRA

are

Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).
Accordingly, federal case law interpreting the ADA is applicable

13

to claims arising under the FCRA. Matamoros v. Broward Sheriff's
Off., 2 F.4th 1329, 1336 (11th Cir. 2021).

The Court will

therefore analyze Plaintiff’s ADA and FCRA claims together. Holly,
492 F.3d at 1255.
Both the ADA and the FCRA recognize discrimination based on
a perceived disability. The ADA defines "disability" as "(a) a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (b) a record
of such an impairment; or (c) being regarded as having such an
impairment." 42 U.S.C. § 12102(2).

Similarly, the FCRA prohibits

employment discrimination "based on . . . handicap." Fla. Stat. §
760.10(1). Individuals with a handicap include those with actual
physical impairments as well as those who are regarded by others
as impaired. Davidson v. Iona-McGregor Fire Protection & Rescue
Division, 674 So.2d 858, 860 (Fla. 2d DCA 1996) (citing Sch. Bd.
of Nassau Cnty v. Arline, 480 U.S. 273, 281-84, 107 S. Ct. 1123,
94 L. Ed. 2d 307 (1987)).
The School Board argues that the SAC fails to identify: the
alleged

perceived

impairment;

any

record

that

purportedly

classified Plaintiff as having a mental impairment; any life
activities

Defendant

believed

were

substantially

limited

by

Plaintiff’s mental condition; or any

misperceptions Defendant

entertained about Plaintiff whatsoever.

The School Board asserts

that

Plaintiff’s

conclusory

allegations
14

–

that

her

perceived

mental impairment substantially limited major life functions –
cannot support a claim under the ADA or FCRA.

The Court agrees.

Plaintiff alleges that she suffered work-related physical
injures to her left shoulder, hip, arm, hand, and her lower back,
and that Dr. Tafel diagnosed Plaintiff with left upper extremity
pain. (Id., ¶¶ 11, 19.)

However, Plaintiff does not identify her

perceived “mental impairment” that “substantially limit[s] one or
more of [her] major life activities.” See 42 U.S.C. § 12102(2).
Identification of a real or perceived disability is a requirement
of a cause of action under the ADA. Gordon v. E.L. Hamm & Assocs.,
100 F.3d 907, 910 (11th Cir. 1996).
In addition, other than a bare assertion that the School
District regarded Plaintiff as having mental impairments (Doc.
#40, ¶¶ 58, 73), the SAC is devoid of any factual allegations to
support this claim.

Conclusory allegations do not "unlock the

doors of discovery" for plaintiffs. Iqbal, 556 U.S.

at 678-79.

"Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557).

Accordingly, Plaintiff has

failed to allege plausible disability discrimination claims under
the ADA and FCRA.

Defendant’s motion to dismiss Count III and

Count IV is therefore granted, without prejudice.

15

D. Count V and Count VI – Retaliation In Violation Of The
ADA and FCRA
In Count V and Count VI of the SAC, Plaintiff sets forth claims
for retaliation under the ADA and FCRA, which Defendant argues
does not offer adequate factual allegations to support any right
to relief.3 (Doc. #40, ¶¶ 86-95, 96-105; Doc. #46, p. 9.)
The ADA makes it an unlawful for an employer to “discriminate
against any individual because such individual has opposed an
unlawful act under the ADA, or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under those statutes.” 42
U.S.C. § 12203(a).

To plead a claim of retaliation under FCRA and

the ADA, Plaintiff must allege that: "(1) [s]he engaged in conduct
protected by the ADA; (2) [s]he suffered an adverse employment
action; and (3) the adverse employment action was causally related
to the protected conduct."

Powell v. Space Coast Credit Union,

No. 6:15-cv-550-Orl-22TBS, 2015 U.S. Dist. LEXIS 174041, at *1415 (M.D. Fla. Dec. 23, 2015) (citing Farley v. Nationwide Mut.
Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1994)); see also Blizzard
v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009)
(setting forth same elements to establish a prima facie case of
retaliation under FCRA, § 760.10(7)).

FCRA retaliation claims are analyzed under the same
framework as ADA claims. Russell v. City of Tampa, 737 F. App'x
922, 923 (11th Cir. 2018).
3

16

The

School

District

argues

that

Plaintiff

has

failed

to

identify any alleged protected activity, let alone allege a causal
connection between the protected activity and any alleged adverse
employment action. (Doc. #46, p. 10.)
Plaintiff

alleges

that

her

The Court does not agree.
“objection

to

disability

discrimination” constitutes protected activity because it was in
furtherance of her rights secured to her by law. (Doc. #40, ¶¶ 88,
98.)

The SAC alleges that on May 20, 2019, Plaintiff sent a

certified letter to the School District requesting an explanation
why she was suspended without pay and stated that she believed
Defendant’s

actions

were

“discriminatory”,

which

received by the School District on May 28, 2019.

was

later

(Id., ¶¶ 23-24.)

Plaintiff further alleges that on August 7, 2019, her employment
was terminated when the School District did not renew her contract.
(Id., ¶ 28.)
Viewing

the

allegations

in

a

light

most

favorable

to

Plaintiff, the Court finds Plaintiff’s May 20, 2019 letter that
was received by Defendant on May 28, 2019, sufficiently alleges
protected activity that Plaintiff believed to be discriminatory.
See Calvo v. Walgreens Corp., 340 F. App'x 618, 625-26 (11th Cir.
2009) (noting that opposing unlawful practices or filing charges
against the employer are the bases for a retaliation claim).

The

SAC also sufficiently alleges an adverse employment action – that
Plaintiff’s employment with the School District was terminated on
17

August 7, 2019.
causal

While Defendant correctly argues that to show a

connection

between

protected

activity

and

an

adverse

employment action, there must be a “very close” temporal proximity
between the two events, the Court finds Plaintiff has plausibly
alleged such a connection.

See Pennington v. City of Huntsville,

261 F.3d 1262, 1267 (11th Cir. 2001) (citations omitted) ("The
causal link element is construed broadly so that 'a plaintiff
merely has to prove that the protected activity and the negative
employment action are not completely unrelated.'").

Based on the

allegations, there is a little over two months between Defendant’s
receipt

of

Plaintiff’s

letter

and

her

termination,

which

is

sufficient as a matter of law to infer a causal relationship for
purposes of retaliation.

Compare

Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509
(2001) (citing with approval several court of appeals decisions
for the proposition that a three to four month gap is insufficient
to establish the causal relation prong in a retaliation case);
Cazeau v. Wells Fargo Bank, N.A., 614 F. App'x 972, 980 (11th Cir.
2015) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363
(11th Cir. 2007)) (a "delay of four to nine months is too remote,
as a matter of law, to show a causal connection."); Walker v.
Sec'y, U.S. Dep't of Air Force, 518 F. App'x 626, 628 (11th Cir.

18

2013) (three-month time lapse has been held insufficient to create
a jury issue regarding causation).4
E. Count VII – Breach of Contract/Wrongful Termination
Count

VII

of

the

SAC

alleges

a

claim

contract/wrongful termination.” (Doc. #40,

for

“breach

¶¶ 106-112.)

of

Under

Florida law, a breach of contract claim requires the existence of
a valid contract between the parties, a material breach of that
contract, and resulting damages. Havens v. Coast Fla., 117 So. 3d
1179, 1181 (Fla. 2d DCA 2013).
Defendant argues, and the Court agrees, that Plaintiff has
only provided conclusory allegations which are merely consistent
with Defendant’s liability and are insufficient to state a breach
of contract claim. Chaparro, 693 F.3d at 1337.
(1)

A Valid Contract

“In order to establish the presence of a valid contract, a
plaintiff

must

allege

the

existence

of:

(1)

an

offer;

(2)

acceptance of the offer; (3) consideration; and (4) sufficient
specification of the essential terms of the agreement.”

Senter v.

To the extent Plaintiff alleges that her letter to the EEOC
dated August 7, 2019 about her “wrongful termination,” or her EEOC
Charge dated January 21, 2020 constitute protected activity, the
Court finds otherwise. Both documents occurred after Defendant’s
alleged adverse action on August 7, 2019, and therefore could not
serve as the basis for any retaliation. See Mack v. Wilcox Cnty.
Comm'n, No. 09-00101-KD-B, 2009 U.S. Dist. LEXIS 114861, at *14
(S.D. Ala. Nov. 6, 2009) (dismissing a claim where the plaintiff’s
termination preceded his EEOC charge).
4

19

JPMorgan Chase Bank, N.A., 810 F. Supp. 2d 1339, 1345 (S.D. Fla.
2011) (citing St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla.
2004)).
Plaintiff does not satisfy the first element of her breach of
contract claim.

Plaintiff alleges that a contract existed between

her and the School District, that the parties agreed to the terms
(which were clear and unambiguous), and that she performed her
duties under the contract (Doc. #40, ¶¶ 107-09).

Other than these

vague and conclusory statements, the SAC contains no allegations
showing that any offer, acceptance, or consideration was provided
between Plaintiff and the School District, nor does the SAC provide
any specificity about the essential terms of such agreement.
Plaintiff therefore has not sufficiently pled any facts tending to
show the existence of a valid contract.
(2)

Material Breach of the Contract

Plaintiff does not satisfy the second requirement because she
fails to allege a material breach of the contract. Plaintiff never
alleges which specific term of the contact was violated by the
School District; rather, she alleges Defendant refused to employ
and pay her the “full amount of sums due under the terms of the
contract.” (Doc. #40, ¶ 110.)

This accusation is too conclusory

to survive a motion to dismiss. See Regal v. Butler & Hosch, No.
15-CIV-61081, 2015 U.S. Dist. LEXIS 182446, 2015 WL 11198248, at
*5 (S.D. Fla. Oct. 8, 2015) (A

breach of contract claim must be
20

dismissed "where it is unclear what provision or obligation under
the contract has been violated."); see also George v. Wells Fargo
Bank, N.A., No. 13-80776-CIV, 2014 U.S. Dist. LEXIS 2000, 2014 WL
61487 (S.D. Fla. Jan. 8, 2014) ("The Amended Complaint does not
identify which provision of the [contract] has been breached and
therefore runs afoul of Twombly.").
(3)

Damages

Under Florida law, a breach of contract claim requires a
showing of "damages resulting from such breach." Bray & Gillespie
Mgmt. LLC v. Lexington Ins. Co., 527 F. Supp. 2d 1355, 1365 (M.D.
Fla. 2007) (citing Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043
(Fla. 1st DCA 1977)). Plaintiff alleges that she “has been damaged
as a result of the Defendant’s breach of contract,” with no
supporting facts.

(Doc. #40, ¶ 111.)

While the Court may infer

that Plaintiff may have been damaged by the School District’s
refusal to employ or pay her, her claim is still somewhat vague.
Vague "catchall" allegations are insufficient to survive a motion
to dismiss. Heyward v. Wells Fargo Bank, No. 8:20-cv-572-T-33AAS,
2020 U.S. Dist. LEXIS 257058, at *5-7 (M.D. Fla. Oct. 6, 2020).
Accordingly,

Plaintiff

breach of contract claim.

has

failed

to

allege

a

plausible

Defendant’s motion to dismiss Count VII

is granted, without prejudice.

21

F. Count VIII — Retaliation In Violation of Florida Workers’
Compensation Statute § 440.2055
Count VIII of the SAC alleges that the School District
retaliated against Plaintiff in violation of Florida’s Workers’
Compensation law. (Doc. #40, ¶¶ 113-122.)
Florida
discharge,

Statute

threaten

§
to

440.205

provides:

discharge,

"No

employer

intimidate,

or

shall

coerce

any

employee by reason of such employee's valid claim for compensation
. . . under the Workers' Compensation Law."

To state a claim for

workers' compensation retaliation under § 440.205, Plaintiff must
allege the following: (1) she engaged in the protected activity of
applying for workers' compensation; (2) she was adversely affected
by an employment decision; and (3) there is a causal connection
between

the

protected

activity

and

the

adverse

employment

decision. See Eichmuller v. Sarasota Cty. Gov't, No. 8:20-cv-47T-33SPF, 2021 U.S. Dist. LEXIS 3220, at *15 (M.D. Fla. Jan. 8,
2021).
In

its

motion,

the

School

District

seeks

dismissal

of

Plaintiff’s workers’ compensation retaliation claim, arguing that
Plaintiff

cannot

establish

a

causal

connection

between

her

In addition to alleging retaliation in violation of
Florida’s workers’ compensation statute, Plaintiff includes
allegations within Count VIII about Defendant retaliating against
her in violation of the ADAAA. Because the Court has already
addressed Plaintiff’s retaliation claim under the ADA (as amended
by the ADAAA), it will disregard any related allegations.
5

22

protected activity and an adverse employment action due to a
substantial delay between the two events. (Doc. #46, pp. 14-15.)
"A causal connection between a plaintiff's protected activity and
an employer's adverse employment action may be inferred from
temporal proximity so long as the timing between the two events is
'very close.'" Ortiz v. Ardaman & Assocs., No. 6:17-cv-1430-Orl40GJK, 2019 U.S. Dist. LEXIS 106250, at *38 (M.D. Fla. Mar. 27,
2019) (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th

Cir.

causation,

2007)).
the

In

the

Eleventh

absence

Circuit

has

of

any

held

other
that

a

evidence

of

three-month

proximity between a protected activity and an adverse employment
action is insufficient to create a jury issue on causation. Drago
v. Jenne, 453 F.3d 1301, 1307 (11th Cir. 2006).
Plaintiff

alleges

that

her

objection

to

retaliation

for

filing her workers’ compensation claim constitutes her protected
activity, and that the School District retaliated against her when
it altered the terms and conditions of her employment via her
termination

on

August

7,

2019.

(Doc.

#40,

¶¶

28,

114-15.)

However, under § 440.205 protected activity occurs when a plaintiff
applies for workers’ compensation, which in this case occurred on
March 15, 2018.

(Id., ¶ 115.)

Plaintiff was suspended without

pay on May 20, 2019, and was ultimately terminated from her
employment with the School District on August 7, 2019. (Id., ¶¶
20, 28.)
23

To the extent Plaintiff is alleging that she was suspended
and terminated from her position as a school bus driver due to
filing a workers' compensation claim, the facts do not support an
inference of causation. Taking the allegations as true, there is
approximately
applied

for

a

fourteenth

workers'

month

compensation

gap

between

benefits

when

and

when

Plaintiff
she

was

suspended, as well as more than seventeen months in regard to her
termination. See, e.g., Gonzales v. Pasco Cnty. Bd. of Cnty.
Comm'rs, No. 8:11-cv-1397-T-30TGW, 2013 WL 179948, 2013 U.S. Dist.
LEXIS 7249, at *24 (M.D. Fla. Jan. 17, 2013)(stating that there
was no causal connection due to the five month gap between the
application for workers' compensation benefits and the alleged
adverse

employment

action);

Sierra

v.

Port

Consolidated

Jacksonville, L.L.C., 2016 WL 927189, 2016 U.S. Dist. LEXIS 28085
(M.D. Fla. Mar. 4, 2016) (same for gap of nine months); Pericich
v. Climatrol, Inc., 523 So. 2d 684, 686 (Fla. 3d DCA 1988) (same
for gap of over a year). Cf. Renta v. Cigna Dental Health, Inc.,
No. 08-60938CIV, 2009 U.S. Dist. LEXIS 101491, 2009 WL 3618246,
(S.D. Fla. Oct. 29, 2009) (explaining that a "close temporal
proximity" is between one and two months). Accordingly, the time
gap

between

when

Plaintiff

filed

for

workers'

compensation

benefits and her suspension or termination is too significant to
support an inference of retaliation under § 440.205.

24

Because Plaintiff has failed to alleged any facts showing a
causal connection between her protected activity and any adverse
employment action, Count VIII of the SAC – the Florida workers’
compensation

retaliation

claim

is

hereby

dismissed,

without

prejudice.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended
Complaint (Doc. #46) is GRANTED in part and DENIED in part.
2. Plaintiff’s

Second

Amended

Complaint

(Doc.

#40)

is

DISMISSED without prejudice; the motion is DENIED as to
Count V and Count VI.
3. Defendants Request for Oral Argument on its Motion to
Dismiss Plaintiff’s Second Amended Complaint (Doc. #49) is
DENIED as moot.
4. Plaintiff is granted leave to file a third (and final)
amended complaint if she believes it would not be futile.
Plaintiff may file a third amended complaint on or before
August 16, 2022.

Defendant shall answer the remaining

counts of the Second Amended Complaint, or respond to a
third amended complaint if one is filed, on or before
August 31, 2022.

25

DONE AND ORDERED at Fort Myers, Florida, this
August, 2022.

Copies:
Counsel of record

26

1st

day of