Schoelzel v. Volusia County

Filing 12

ORDER granting 8 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 1/27/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PETER SCHOELZEL,
Plaintiff,
v.

Case No. 6:14-cv-1633-Orl-37TBS

VOLUSIA COUNTY, FLORIDA,
Defendant.
ORDER
This cause is before the Court on the Defendant Volusia County, Florida’s Motion
to Dismiss (Doc. 8), filed January 5, 2015.
BACKGROUND
On October 7, 2014, Plaintiff Peter Schoelzel initiated this action against his
former employer, Defendant Volusia County, Florida. (Doc. 1.) Plaintiff alleges that:
(1) Defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1213(d),
when it forced him to resign his position as an Information Technology Activity
Director/Manager on May 18, 2012 (“Count One”) (see id. ¶¶ 28–35); and
(2) Defendant’s “willful, wanton, and outrageous” discriminatory conduct toward Plaintiff
during his employment amounted to intentional infliction of emotional distress under
Florida law (“Count Two”) (see id. ¶¶ 36–39). Plaintiff alleges that “[a]ll conditions
precedent to the filing of this action have occurred or been waived” based on his filing of
a “Complaint of Discrimination with the Florida Commission on Human Relations”
(“FCHR”) on April 13, 2013. 1 (Id. ¶¶ 24, 27.)

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Plaintiff did not submit a copy of his FCHR Complaint with his Complaint;

Defendant filed a Motion to Dismiss on the following grounds: (1) Plaintiff has not
exhausted his administrative remedies with respect to Count One; (2) upon dismissal of
Count One, no basis for jurisdiction will exist concerning Count Two; and (3) Count Two
is barred by sovereign immunity. (Doc. 8.) Because the deadline for Plaintiff to respond
to the Motion to Dismiss has passed without a filing from Plaintiff, see Local Rule
3.01(b), the Court infers that Plaintiff does not oppose the Motion. 2
STANDARDS
Before filing a claim under the ADA, a Florida plaintiff must exhaust his
administrative remedies by filing a charge of discrimination with the FCHR “within 300
days of the allegedly unlawful employment practice.” See Fatz v. Winn-Dixie Stores,
Inc., No. 6:12-cv-1668-Orl-36DAB, 2013 WL 4080330, at *3 (M.D. Fla. Aug. 13, 2013);
see also EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002)
(holding that, in Florida, only those employment discrimination “claims arising within 300
days prior” to an administrative charge are actionable); Maynard v. Pneumatic Prods.
Corp., 256 F.3d 1259, (11th Cir. 2001) (citing 42 U.S.C. § 12117(a) for same
proposition). The question whether a plaintiff has exhausted his administrative remedies
is “a legal determination for the Court.” See Brooks v. CSX Transp., Inc., No. 3:09-cv379-J-32HTS, 2009 WL 3208708, at *5–*6 (M.D. Fla. Sept. 29, 2009). A defendant
however, he did submit a “Notice of Determination: Cause” issued by the FCHR on
October 13, 2012. (See Doc. 1–1 (determining that “reasonable cause exists to believe
that an unlawful employment practice occurred”); see also Doc. 1, ¶ 25.)
2 See Carmody v. State Farm Mutual Auto. Ins. Co., 6:14-cv-830-Orl-37KRS,
2014 WL 3057108, at *2 (M.D. Fla. Jul. 7, 2014) (granting motion to dismiss because it
was “consistent with Florida law” and unopposed); Cortez v. City of Orlando, Fla.,
No. 6:13-cv-164-Orl-28TBS, 2013 WL 1821048, at *1 (M.D. Fla. Apr. 30, 2013)
(granting motion to dismiss as unopposed); see also Patton v. Ocwen Loan Servicing,
LLC, No. 6:11-cv-445-Orl-19DAB, 2011 WL 3236026, at *2 n. 3 (M.D. Fla.
July 28, 2011) (“Failure to oppose a motion raises an inference that the party does not
object to the motion.”).

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should raise the exhaustion question in a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Duble v. FedEx Ground Package Sys., Inc.,
572 F. App’x 889, 892 (11th Cir. 2014); see also Jones v. Bank of Am., 985 F. Supp. 2d
1320, 1325, 1330 (M.D. Fla. 2013).
When ruling on a 12(b)(6) motion, the court must “accept all factual allegations in
the complaint as true,” and must consider only the pleading itself, “documents
incorporated by reference, and matter of which a court may take judicial notice.”
See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Jackson v.
BellSouth

Telecomms.,

372

F.3d

1250,

1262

(11th

Cir.

2004);

see

also

Fed.R.Civ.P. 10(c). With reference only to the non-conclusory and well-pled facts, the
Court must determine whether the plaintiff states “a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
DISCUSSION
Defendant argues that the Court should dismiss Count One because Plaintiff filed
his FCHR Complaint 332 days after the last alleged discriminatory act. (See Doc. 8,
pp. 2, 4.) Defendant’s unopposed argument is correct. The Complaint provides that
Plaintiff filed his FCRA Complaint on April 15, 2013 (Doc. 1, ¶ 24), and the last allegedly
discriminatory act (the termination of Plaintiff’s employment) occurred on May 18, 2012.
(See id. ¶ 21.) By the Court’s calculation, March 15, 2013, was the deadline to file an
administrative complaint for the alleged May 18, 2012 ADA violation. Accordingly, Count
One is due to be dismissed. See Brady v. Postmaster Gen., 521 F. App’x 914, 917
(11th Cir. 2013) (affirming dismissal of ADA claim based on untimely exhaustion of
administrative remedies); Camp v. Bridgeway Center, Inc., (dismissing ADA claim due

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to plaintiff’s filing of administrative charge more than 300 days after termination of her
employment); Brooks, 2009 WL 3208708, at *6–*7 (granting motion to dismiss for failure
to

exhaust

remedies);

see

also

Tillery

v.

U.S.

Dep’t

of

Homeland

Sec.,

402 F. App’x 421, 425 (11th Cir. 2010) (affirming dismissal of Title VII claim for failure to
timely exhaust administrative remedies); J.P. v. Cherokee Cnty. Bd. of Educ.,
218 F. App’x 911, 913–914, n.3 (11th Cir. 2007) (affirming dismissal of IDEA and ADA
claims based on untimely exhaustion of administrative remedies); Babicz v. School Bd.
of Broward Cnty., 135 F.3d 1420, 1422 (11th Cir. 1998) (same).
Defendant argues that the Court should dismiss Count Two because no basis
exists for the Court to exercise jurisdiction over the state law claim. (See Doc. 8, p. 5.)
Again, Defendant’s unopposed argument is correct. The only ground for jurisdiction
identified in the Complaint is federal question jurisdiction under 28 U.S.C. §§ 1331 and
1343. (See Doc. 1, ¶ 2.) Because Count Two is not a federal question claim, Plaintiff
has pled no grounds for jurisdiction over Count Two. (See id.) Further, the parties to this
action are not diverse, and the Complaint does not indicate that the $75,000.00 amount
in controversy requirement is met (see id. ¶¶ 3–5); accordingly, § 1332 does not apply.
Finally, after dismissal of Count One, Count Two also is due to be dismissed because
the

Court

will

not

exercise

supplemental

jurisdiction

under

§ 1367(a).

See

28 U.S.C. § 1367(c)(3).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendant Volusia County, Florida’s Motion to Dismiss (Doc. 8) is
GRANTED.

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2.

The Complaint and Demand for Jury Trial (Doc. 1) is DISMISSED Without
Prejudice, and the Clerk is directed to CLOSE this file.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 27, 2015.

Copies:
Counsel of Record

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