Mitchell v. Nassau County Board of County Commissioners
ORDER granting 16 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint; dismissing 11 the SAC without prejudice. Plaintiff shall file a Third Amended Complaint by 5/11/18. Defendant shall file an answer or motion to dismiss by 6/11/18. Signed by Judge Timothy J. Corrigan on 4/12/2018. (SEJ) Modified on 4/12/2018 to edit text per Chambers (JSG).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LARRY D. MITCHELL,
Case No. 3:17-cv-1164-J-32PDB
NASSAU COUNTY BOARD OF
This race discrimination and retaliation case is before the Court on Defendant
Nassau County Board of County Commissioners’ (“the Board”) Motion to Dismiss
Plaintiff’s Second Amended Complaint (“SAC”), (Doc. 16), to which Plaintiff Larry
Mitchell has responded, (Doc. 17). Mitchell alleges that throughout his employment
with the Board from 1985-2015, he was the target of race discrimination by other
employees in supervisory positions.1 (Doc. 11 ¶ 5). Further, Mitchell alleges that on
October 14, 2015, Nassau County Manager Ted Selby forced him to retire or face
termination after he was accused of threatening another employee. (Id. ¶ 29). As a
result, on November 20, 2017, Mitchell filed the SAC alleging six causes of action,
According to Charges of Discrimination that Mitchell filed with the EEOC,
Mitchell worked at the Board as a maintenance helper and an operator in the Public
Works Department. (Doc. 16 at 17, 23).
including: race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”) (Count I); race discrimination under the Florida Civil
Rights Act of 1992, Fla. Stat. § 760.01 et seq. (“FCRA”) (Count II); retaliation under
the FCRA (Count III); race discrimination under 42 U.S.C. §§ 1983, 1988, and the
Fourteenth Amendment to the U.S. Constitution (Count IV); retaliation under § 1983,
§ 1988, and the Fourteenth Amendment (Count V); and retaliation under Title VII
The Board now moves to dismiss the SAC on the grounds that Mitchell failed to
exhaust his administrative remedies with respect to several allegedly discriminatory
or retaliatory acts underlying his Title VII and FCRA counts. (Doc. 16 at 5-10). The
Board argues that those acts are time-barred or premature and cannot give rise to
actionable Title VII or FCRA claims. In addition, the Board contends that several of
the allegations underpinning Mitchell’s § 1983 counts are time-barred (specifically,
Doc. 11 ¶¶ 8-13), and that Mitchell fails to state a claim upon which relief may be
granted in his § 1983 claims because he has not identified a municipal policy or custom
causing his injury. (Id. at 10-12).
Mitchell responds that he has not alleged any claims that would be time-barred
and, to the extent he has, those allegations “were not meant to be considered separate
claims.” (Doc. 17 at 2). Mitchell admits that allegations such as those in paragraphs 8,
Mitchell filed his initial complaint on October 17, 2017, (Doc. 1), but the Court
sua sponte dismissed it as a shotgun pleading, (Doc. 5). He filed a First Amended
Complaint on November 2, 2017, (Doc. 6), but the Board moved to dismiss it on the
grounds that it was still a shotgun pleading, (Doc. 10). In response, Mitchell filed the
SAC, (Doc. 11)—the operative pleading.
10, 11, 17, 18, and 19 of the SAC occurred “outside any actionable time period” and
that, “taken individually, [they] would be legally insufficient, as none arise to a
tangible employment action.” (Id.). Rather, Mitchell contends that those allegations
serve as “background evidence on individual treatment or the pattern and practice of
discriminatory conduct and animus on the part of the employer.” (Id.). Mitchell
generally asserts that “all the events that fall outside the charging period are included
as either components of a hostile environment or background facts to actual claims
being made.” (Id. at 3). For support, Mitchell relies on the Supreme Court’s opinion in
National Railroad Passenger Corp. v. Morgan, which addresses whether, and in what
circumstances, a Title VII plaintiff may sue on events that fall outside the timely-filing
period. 536 U.S. 101, 110-21 (2002) (untimely acts can be used “as background
evidence in support of a timely claim,” but cannot themselves form the basis for
liability, while a charge alleging a hostile work environment claim will not be time
barred so long as all acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time period for filing the
In each of the six counts in the SAC, Mitchell realleges spans of paragraphs
from the General Allegations section, (see Doc. 11 ¶¶ 31, 42, 52, 63, 70, 77), some of
which he acknowledges are untimely, see supra. However, it is not sufficient for
Mitchell to simply state, as he does in the response, that he “has no intention of
bringing claims that would be barred for whatever reason.” (Doc. 17 at 2). Rule 8(a)(2)
requires a complaint to contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” The point is to “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Despite the
apparent concessions in Mitchell’s response, it is unclear precisely which allegations
he agrees are untimely and which he intends to use merely as background evidence in
support of his timely claims. See Wilson-Goines v. Marriott Ownership Resorts, Inc.,
No. 8:12-CV-1675-T-33MAP, 2012 WL 4513070, at *4 (M.D. Fla. Oct. 1, 2012) (“timebarred, discrete acts may be used by a plaintiff to support timely claims of
discrimination”). Moreover, he did not address whether the acts giving rise to his
§ 1983 claims are barred by the statute of limitations, as the Board argues, and if so,
whether they may properly support his allegations of a custom or policy of race
Regardless of the deficiencies in his SAC and response, the Court shall afford
Mitchell a final opportunity to file his best amended complaint. In doing so, he shall
reorganize the third amended complaint so it is clear which prior acts are admittedly
untimely but constitute background evidence in support of timely claims, and which
acts are timely and thus may form the basis for actionable claims. In addition,
although the EEOC charges and Mitchell’s response suggest that he intended to bring
a hostile work environment claim, the operative complaint contains no such cause of
action. Instead, all of Mitchell’s claims are based on “race discrimination” or
To the extent Mitchell relies on paragraphs 68 and 75 in support of his claim
of unlawful customs, policies, and practices under § 1983, they are conclusory, as the
“retaliation.” To the extent Mitchell is bringing a hostile work environment claim, it
must be set out as a separate count.4
Accordingly, it is hereby
Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint
(Doc. 16) is GRANTED.
The Second Amended Complaint (Doc. 11) is DISMISSED without
Plaintiff shall file a Third Amended Complaint by May 11, 2018.
Defendant shall file an answer or motion to dismiss by June 11, 2018.
In the meantime, the parties remain governed by the Case Management
and Scheduling Order. (Doc. 19).
DONE AND ORDERED in Jacksonville, Florida the 12th day of April, 2018.
Title VII prohibits a hostile work environment in which “a
series of separate acts . . . collectively constitute one
‘unlawful employment practice.’” Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d
106 (2002) (citing 42 U.S.C. § 2000e-5(e)(1)). As opposed to
“[d]iscrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire,” a hostile work
environment claim addresses acts “different in kind” whose
“very nature involves repeated conduct,” such as
“‘discriminatory intimidation, ridicule, and insult.’ ” Id. at
114-16, 122 S.Ct. 2061 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
Thus, these “claims are based on the cumulative effect of
individual acts.” Id. at 115, 122 S.Ct. 2061.
McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008).
TIMOTHY J. CORRIGAN
United States District Judge
Counsel of record
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