Maeder et al v. Tom Bush Auto-Plex, Inc. et al
Filing
19
ORDER granting 11 Defendants' Motion to Dismiss Plaintiffs' Complaint. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 3/20/2015. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JANICE MAEDER, TIM MAEDER, and
KREATIVE IMAGE WATERPROOFING,
INC., d/b/a Extreme Floors,
Plaintiff,
-vs-
Case No. 3:14-cv-335-J-34PDB
TOM BUSH AUTO-PLEX, INC., TOM
BUSH VOLKSWAGEN, INC., TOM BUSH
MOTORS, INC., BUSH INDUSTRIES
CORP., and JOHN P. BUSH,
Defendants.
______________________________________
ORDER
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Plaintiffs’
Complaint (Doc. No. 11; Motion) filed on May 5, 2014. Plaintiffs filed their response in
opposition to the Motion on May 14, 2014. See Plaintiffs’ Response to Defendants’ Motion
to Dismiss (Doc. No. 14; Response). Accordingly, the Motion is ripe for review.
I.
Background Facts1
On March 24, 2014, Plaintiffs Janice Maeder, Tim Maeder, and Kreative
Waterproofing, Inc. (Kreative) filed the instant action against Defendants Tom Bush AutoPlex, Inc., Tom Bush Volkswagen, Inc., Tom Bush Motors, Inc., Bush Industries Corp., and
1
In considering the Motion to Dismiss, the Court must accept all factual allegations in the
Complaint as true, consider the allegations in the light most favorable to the plaintiff, and accept all
reasonable inferences that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts
recited here are drawn from the Complaint, and may well differ from those that ultimately can be proved.
John P. Bush (collectively Defendants). See Complaint and Demand for Jury Trial (Doc. No.
1; Complaint). In their Complaint, Plaintiffs allege that Defendants requested bids to restore
and repair floors at different facilities, and in response, on or about June 19, 2013, Plaintiffs
submitted two bids. See id. ¶10. Shortly thereafter, on June 23, 2013, Plaintiffs allege that
they submitted two alternative bids for the same services at a lower cost. See id. ¶11.
When Plaintiffs followed up with Steve Kick, Defendants’ representative, he informed them
by e-mail that Defendants had given the contracts to another company. See id. ¶¶12-13.
When Plaintiffs asked if their bids were not accepted based on cost, “Defendants reply
stated that cost was not an issue, rather they ‘really didn’t like’ Plaintiffs’ company was
showing itself as a minority woman owned business.” Id. ¶¶14-15. Plaintiffs allege that
Plaintiff Janice Maeder is an African-American female. Id. ¶3.
Based on Defendants’ failure to award Plaintiffs the contracts, and the statement
which Plaintiffs allege indicates that race and gender were a significant if not determining
factor in such failure, Plaintiffs filed the instant action. See id. ¶16. Plaintiffs assert claims
of willful discrimination based on race in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. (Count One), illegal infringement on Plaintiffs’ ability to contract
for and obtain employment free of racial discrimination in violation of 42 U.S.C. § 1981
(Count Two), and discrimination based on race and gender in violation of the Florida Civil
Rights Act of 1992 (FCRA) (Count Three). Defendants now move to dismiss the Complaint,
arguing that it does not meet the requirements of Rule 8 because it does not contain specific
allegations by each Plaintiff against each Defendant and the basis for Plaintiffs’ claims is
indecipherable. See Motion at 4-5. Defendants further contend that the Complaint should
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be dismissed because: it fails to allege sufficient facts to state a cause of action as to all
three counts; Defendant John Bush cannot be held liable as an individual as to Counts One
and Three; there are no factual allegations that Defendant Bush personally participated in
any discrimination as to Count Two; and business entities such as Plaintiff Kreative cannot
be the subject of racial discrimination as to all three counts. See id. at 5-13. Plaintiffs
oppose the motion and argue that their Complaint states causes of action for all three of the
their claims. See generally Response.
II.
Standard of Review
In ruling on a motion to dismiss, brought pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (Rule(s)), the Court must accept the factual allegations set forth in
the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr.,
Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be
drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247
(11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal
pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir.
2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[,]” the complaint
should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A “plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372
F.3d at 1262 (explaining that “[c]onclusory allegations, unwarranted deductions of facts or
legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and
quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled
to [an] assumption of truth.” See Iqbal, 556 U.S. at 678, 680-81. Thus, in ruling on a motion
to dismiss, the Court must determine whether the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678
(quoting Twombly, 550 U.S. at 570).
III.
Discussion
A.
Title VII and the FCRA
Title VII provides “that it is unlawful for an employer ‘to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.’” Holifield v. Reno,
115 F.3d 1555, 1561 (11th Cir. 1997) (quoting 42 U.S.C. §§ 2000e-2(a)(1)). While the
statute does not define “any individual,” in the Eleventh Circuit and elsewhere, “only those
plaintiffs who are ‘employees’ may bring a Title VII suit.” Llampallas v. Mini-Circuits, Lab,
Inc., 163 F.3d 1236, 1242-43 (11th Cir. 1998).
4
Moreover, the Eleventh Circuit has
recognized “[e]mployment must be distinguished from the independent contractual
associations of business entities for the latter are not covered by Title VII.” Cobb v. Sun
Papers, Inc., 673 F.2d 337, 340 (11th Cir. 1982) (quoting Mathis v. Standard Brands Chem.
Indus., Inc., 10 F.E.P. 295, 297 (N.D. Ga. 1975)). Notably, with respect to the FCRA,
“Florida courts have held that decisions construing Title VII are applicable when considering
claims under the Florida Civil Rights Act, because the Florida act was patterned after Title
VII.” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); see also
Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 n.3 (Fla. 1st DCA 2002)
(“The Florida Civil Rights Act is patterned after Title VII, and therefore federal case law
regarding Title VII is applicable.”). Thus, a plaintiff who is unable to maintain a claim under
Title VII is equally unable to maintain a claim based on the same conduct under the FCRA.
See Harper, 139 F.3d at 1387, 1389-90.
In this case, Defendants argue that Plaintiffs cannot maintain Title VII or FCRA claims
because they do not allege an employment relationship between the parties but instead
merely a bid to provide flooring services as an independent contractor or vendor. See
Motion at 6-7. Plaintiffs state that they “do not dispute that Title VII and FCRA protections
do not extend to parties that are in an established independent contractor relationship as a
matter of law.” Response at 4. However, Plaintiffs contend that applications for employment
are subject to Title VII and the FCRA, and the determination of the legal nature of the
employment Plaintiffs were seeking should be made at the summary judgment stage of the
proceedings following discovery. See id. at 6-8.
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Plaintiffs’ arguments are without merit. While Plaintiffs may be correct that Title VII
and the FCRA apply to racial discrimination in hiring, the allegations in Plaintiffs’ Complaint
belie any contention that Plaintiffs were seeking employment with Defendants in submitting
their contract bids. The Complaint reflects that Plaintiffs, one of whom is a corporation, were
seeking a contractual relationship with Defendants to provide floor restoration and repair
services. This type of relationship is nothing more than a contractual association between
businesses and not covered under either Title VII or the FCRA. See Cobb, 673 F.2d at 340.
Without need of any discovery, taking Plaintiffs’ allegations as true, the Court can determine
that Plaintiffs, as potential contractors, were seeking an independent contractor relationship
with Defendants.2
Because Plaintiffs have not alleged that they were employees of
2
The Eleventh Circuit follows “the ‘economic realities’ test to determine whether a Title
VII plaintiff is an employee.” Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1234 (11th Cir. 2004) (citing
Cobb, 673 F.2d at 340-41. “Under this test, the term ‘employee’ is ‘construed in light of general common
law concepts’ and ‘should take into account the economic realities of the situation,’ ‘viewed in light of the
common law principles of agency and the right of the employer to control the employee.’” Id. (citing Cobb,
673 F.2d at 340-41). Some of the relevant factors to take into consideration include:
(1) the kind of occupation, with reference to whether the work usually is done under the
direction of a supervisor or is done by a specialist without supervision; (2) the skill
required in the particular occupation; (3) whether the “employer” or the individual in
question furnishes the equipment used and the place of work; (4) the length of time
during which the individual has worked; (5) the method of payment, whether by time or
by the job; (6) the manner in which the work relationship is terminated; i.e., by one or
both parties, with or without notice and explanation; (7) whether annual leave is
afforded; (8) whether the work is an integral part of the business of the “employer”; (9)
whether the worker accumulates retirement benefits; (10) whether the “employer” pays
social security taxes; and (11) the intention of the parties.
Cobb, 673 F.2d at 340 (quoting Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C. Cir. 1979)). By definition,
contractors work on the particular project for which they have a contract. They bring their own staff and
equipment without approval from the other party to the contract and are paid for the completion of the
work, upon which the relationship between the parties is terminated in the absence of any additional
contract. Plaintiffs’ conclusory allegations do not transform their bids for contracts into employment
applications. Therefore, the Court concludes from the face of the Complaint that Plaintiffs were seeking
an independent contractor relationship and cannot maintain a Title VII or FCRA claim.
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Defendants or that they were seeking an employment relationship with Defendants, Plaintiffs
have not stated a claim plausible on its face upon which relief can be granted under either
Title VII or the FCRA. Thus, Counts One and Three of the Complaint are due to be
dismissed.3
B.
Section 1981
While in an employment context, § 1981 and Title VII have the same analytical
framework, Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir.
2000), “section 1981 and Title VII are not coextensive in coverage.” Parr v. Woodmen of
the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986) (citing Johnson v. Railway
Express Agency, 421 U.S. 454, 460 (1975)). “Section 1981 prohibits intentional race
discrimination in the making and enforcement of public and private contracts, including
employment contracts.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999). As
discussed above, Plaintiffs do not allege that they were seeking a contractual employment
relationship. Instead, Plaintiffs allege that Defendants failed to award Plaintiffs certain
contracts on the basis of race. “Disappointed bidders are at the core of Section 1981’s
protection: Section 1981 is a protection against an entity . . . declining to make a contract
with a party . . . on account of race.” Webster v. Fulton Cnty., Ga., 283 F.3d 1254, 1257
(11th Cir. 2002). In the non-employment context, to state a claim for race discrimination
under § 1981, a plaintiff must allege that: “(1) he [or she] is a member of a racial minority,
3
Because the Court concludes that Plaintiffs cannot maintain their Title VII and FCRA
claims against Defendants based on the lack of an employment relationship, the Court need not address
Defendants’ remaining arguments as to the sufficiency of these claims.
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(2) the defendant intended to racially discriminate against him [or her], and (3) the
discrimination concerned one or more of the activities enumerated in the statute.” Jimenez
v. Wellstar Health Sys., 596 F.3d 1304, 1308 (11th Cir. 2010). One of the rights enumerated
in the statute is the making of contracts. See 42 U.S.C. § 1981.4 As the Supreme Court
explained, § 1981 “offers relief when racial discrimination blocks the creation of a contractual
relationship, as well as when racial discrimination impairs an existing contractual
relationship, so long as the plaintiff has or would have rights under the existing or proposed
contractual relationship.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006).
Although Defendants raise several grounds for dismissal of Plaintiffs’ 1981 claim,
including whether Plaintiffs Tim Maeder and Kreative can establish that they are members
of a racial minority, the Court finds Defendants’ argument that Plaintiffs have failed to
4
Section 1981 provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and no
other.
(b) “Make and enforce contracts’ defined
For purposes of this section, the term ‘make and enforce contracts’
includes the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms and
conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment
by nongovernmental discrimination and impairment under color of State
law.
42 U.S.C. § 1981 (2013).
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sufficiently allege intentional discrimination to be dispositive. Defendants contend that
Plaintiffs’ allegation as to purposeful discrimination is a statement by an unidentified source
not attributable to any particular Defendant. See Motion at 9. Plaintiffs bring their 1981
claim against four different corporations and one individual without making any specific
allegations as to the conduct of any of these Defendants. See generally Complaint. Liability
under § 1981 is premised on personal involvement of a defendant and cannot be imposed
vicariously. Jerome v. Hertz Corp., 15 F. Supp. 3d 1225, 1233 (M.D. Fla. 2014). Moreover,
while an individual defendant can be held personally liable under § 1981, see Faraca v.
Clements, 506 F.2d 956, 959-60 (5th Cir. 1975),5 to do so “a plaintiff must demonstrate
‘some affirmative link to causally connect the actor with the discriminatory action.’” Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (quoting Allen v. Denver
Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991), overruled on other grounds, Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir. 2000)); see also Crawley v.
Paskert-Johnson Co., No. 8:07-cv-1789-T-23TGW, 2008 WL 4793650, at *1 (M.D. Fla. Nov.
3, 2008) (same). Thus, “‘[a] claim seeking personal liability under section 1981 must be
predicated on the actor’s personal involvement.’” Whidbee, 223 F.3d at 75 (quoting Allen,
928 F.2d at 983); see also Crawley, 2008 WL 4793650, at *1 (same); Jerome, 15 F. Supp.
3d at 1234 (“[A] plaintiff cannot bring a cause of action pursuant to Section 1981 against an
individual not personally involved.”).
5
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the
Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
9
In the Complaint, Plaintiffs allege that “Defendants are an employer” as defined in
Title VII and the FCRA, and that “Defendants include a corporation and an individual . . .”
Complaint ¶¶ 4-5. Plaintiffs do not identify to which Defendant(s) Plaintiffs submitted their
bids, which Defendant(s) made the decision to award the contracts to another company, or
which Defendant(s) employed Steve Kick. Significantly, Plaintiffs do not identify the person
who allegedly stated that “they” did not like Plaintiff Kreative showing itself as a minority
owned business or the employer of that person. As to the individual Defendant, John Bush,
Plaintiffs do not even identify how he is affiliated with one or any of the corporate
Defendants, much less how he has personally discriminated against Plaintiffs.
See
generally Complaint.6 Based on the lack of allegations of intentional discrimination as to
each Defendant, the Court concludes that Plaintiffs have failed to state a § 1981 claim
against Defendants. Thus, Count Two of the Complaint is due to be dismissed along with
Counts One and Three.7
6
In their Response, Plaintiffs state that they are not seeking to hold Defendant John Bush
individually liable, but “[r]ather, as the sole human defendant making the discriminatory decision on behalf
of the Defendants as a group, he is liable in his official capacity.” Response at 8-9. The problem with
this argument is that nowhere in the Complaint do Plaintiffs allege what office Defendant John Bush holds
or what decision(s) he made.
7
Although Plaintiffs attempted to seek leave to amend their Complaint as an alternative
to dismissal, the Court denied the request as not properly before the Court and directed Plaintiffs to file
an appropriate motion if they so desired. See Order (Doc. No. 18). Plaintiffs, who are represented by
counsel, did not file a motion for leave to amend, and the Court declines to permit them an additional
opportunity to do so given the failure to suggest any facts that might support a viable claim. See Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“A district court is not
required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
represented by counsel, never filed a motion to amend nor requested leave to amend before the district
court.”).
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IV.
Conclusion
In light of the foregoing, the Court determines that Plaintiffs’ Complaint is due to be
dismissed in its entirety with prejudice. Therefore, the Court will grant Defendants’ Motion.
Accordingly, it is ORDERED:
1.
Defendants’ Motion to Dismiss Plaintiffs’ Complaint (Doc. No. 11) is
GRANTED.
2.
The Complaint and Demand for Jury Trial (Doc. No. 1) is DISMISSED.
3.
The Clerk of the Court is directed to terminate any pending motions or
deadlines and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of March, 2015.
lc16
Copies to:
Counsel of Record
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