Ward v. Casual Restaurant Concepts, Inc.

Filing 14

ORDER granting in part and denying in part 6 Motion to dismiss. See order for details and instructions on amending complaint and answering complaint. Signed by Judge Elizabeth A. Kovachevich on 6/29/2011. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMANDA WARD,
Plaintiff.

CASE NO: 8:10-CV-2640-T-171GW

v.

CASUAL. RESTAURANT
CONCEPTS INC. d/b/a

APPELBEE'S,
Defendant.

ORDER ON DEFENDANTS' MOTION TO DISMISS

THIS CAUSE is before the Court on Defendant's. CASUAL RESTAURANT

CONCEPTS INC. d/b/a APPLEBEE'S ("CRC"), Motion to Dismiss (Doc. 6) and Plaintiffs.
AMANDA WARD, response thereto (Doc. 8). For reasons set forward below. Defendant's
Motion lo Dismiss is granted in part and denied in part. Count III of Plaintiffs complaint is
GRANTED with prejudice. Count VI is GRANTED with leave to amend. Counts II. IV, V, and
VII are DENIED. The following facts are taken as true for the purposes of resolving the motion.
BACKGROUND AND PROCEDURAL HISTROY

Plaintiff began working for Defendant in December 2009 and was employed by

Defendant until April 2010. During this time, Chris Harrington, who was employed by
Defendant as manager and supervisor of the Plaintiff, made unrequited, amorous comments and

gestures toward the Plaintiff. Harrington, and other managers of this Applebee's, would routinely
use employee phones, without permission, lo make survey calls.

When using Plaintiffs phone on April 6. 2010. Harrington forwarded a personal picture
of the Plaintiff to his own phone, showed the photo to other employees and patrons, claimed to
have an intimate relationship with the Plaintiff, and claimed that the photo was taken by
Harrington.

Plaintiffdiscovered this, and reported Harrington's actions to the senior manager, who

never investigated the matter, and took no corrective action in response to the incident.
Plaintiff was told that she should not work until Harrington was transferred on April 25,
2011. for an unrelated reason. However. Plaintiff quit because she was concerned as to who had

heard the story and she did not want to work in a place that would condone such behavior.
STANDARD OF REVIEW

Federal Rule of Civil Procedure Rule 8(a)(2) requires that a plaintiffs complaint lay out

"a short and plain statement of the claim showing that the pleader is entitled to relief in order to
""give the defendant fair notice of what the ... claim is and the grounds upon which it rests."
Conley v Gibson. 355 U.S. 41. 47 (1957). That said. "[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs 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." Bell All. Corp. v. Twombly,
550 U.S. 544. 555 (2007) (internal quotation marks and citations omitted).
fherefore. "to survive a motion to dismiss, a complaint must now contain sufficient

factual matter, accepted as true, to 'stale a claim to relief that is plausible on its face."'^/».
Denial Ass'n v. Cigna Corp., 605 F.3d 1283. 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S.
at 570). In considering a motion lo dismiss, courts must follow a simple, two-pronged approach:
"1) eliminate any allegations in the complaint thai are merely legal conclusions: and 2) where

there are well-pleaded factual allegations, 'assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief" Id. at 1290 (quoting Ashcrofl v. Iqbal, 129 S.
Ct. 1937. 1950 (2009)). In sum, "the pleading standard that Rule 8 announces does not require

•detailed factual allegations.' but demands more than an unadorned, the defendant-unlawfullyharmed-me accusation." h/bal. 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555).
DISCUSSION

Defendant CRC seeks to dismiss Count II of the complaint for failing to exhaust all
available administrative remedies and Counts III - VII for failing to meet the Iqbal pleading
standard in regards lo vicarious liability and the merits on each count.
for the reasons staled below, this Court finds that Plaintiff has sufficiently exhausted all

appropriate administrative remedies. Plaintiffs complaint adequately meets the Iqbal standard in
regards to its claims of vicarious liability on all counts; however, Plaintiffs complaint does not
meet the Iqbal standard as to the merits of each claim presented. For these reasons, in regards to
Count II. IV. V. and VII Defendant's Motion to Dismiss is DENIED, in regards to Count III the
Motion is GRANTED without leave to amend and in regards to Count VI, defendant's Motion to
Dismiss is GRANTED with leave to amend.
A. Failure to Exhaust Administrative Remedies

The purpose behind the exhaustion requirement is to allow the Equal Employment

Opportunity Commission (EEOC) or other administrative agencies the opportunity to investigate

and perform their administrative roles of obtaining voluntary compliance and promoting
conciliation between the parties before suit. Gregory v. Georgia Dept. ofHuman Resources 355

F.3d 1277. 1279 (11th Cir. 2004). Further, the "plaintiffs judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be expected lo grow out of the charge of

discrimination" and that the scope of an EEOC complaint should not be •'strictly interpreted"
because courts are reluctant lo allow procedural hurdles to bar judicial claims. IdSt 1280.

In Gregory, Dr. Gregory brought charges ofrace and gender discrimination, she prepared
the EEOC form without aid from counsel, and she never checked the "retaliation box" on the
EEOC form. Id. The court found that her claim for retaliation was not barred because the facts

given by Dr. Gregory '•could have reasonably been extended to encompass a claim for retaliation
because they were inextricably intertwined with her complaints of race and sex discrimination"
under a liberal viewing of the administrative requirements. Id.

In the present case. Plaintiff presented her initial complaint without counsel and claims
she was forced to quit after complaining about Harrington to management. It is reasonable from
these facts to find that Plaintiff being forced to quit was in retaliation to her complaint and thus
the EEOC charge could reasonable be extended to include that claim based on the facts provided
to the EEOC. Thus, because the EEOC charge could reasonably be extended to include the
charge of retaliation, despite the fact that the "retaliation" box was not checked on the EEOC
form, the retaliation and discrimination claims are "inextricably entwined" and the retaliation

claim would "grow out of the charge of discrimination" as it did in Gregory. Accordingly, this
Court finds that Plaintiffs claims are not barred for failing to exhaust administrative remedies,
and. thus, to Count II the Motion to Dismiss is DENIED.

B. Vicarious Liability

Plaintiff claims that Defendant CRC is responsible for the intentional acts of Chris
Harrington during his employment at CRC. and in order to survive a motion to dismiss as to

Counts II - VII of the complaint, first the Plaintiff must plead facts that plausibly shows that

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Defendant is responsible for Harrington's actions through vicarious liability, and then must plead
facts that show it is plausible that Plaintiff will succeed on the merits for each of her claims.
Because the complaint must fail as to all relevant counts if vicarious liability is not plead
sufficiently, this order will first determine whether a charge of vicarious liability can be
supported by the pleading.

"Under the doctrine of respondent superior, an employer cannot be held liable for the
tortious or criminal acts of an employee, unless the acts were committed during the course of the

employment and lo further a purpose or interest, however excessive or misguided, of the
employer." Iglesia Crisliana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353, 356 (Fla. 3d DCA
2001). "Under Florida law. an action falls within the scope of employment if the conduct: (1) is
ofthe kind the employee was employed to perform; (2) occurred within the time and space limits

of the employee's employment; and (3) was activated at least in part by a purpose to serve the
employment." Spencer v. Assurance Co. ofAm., 39 F.3d 1146. 1150 (11th Cir.1994); Iglesia
('ristiana. 783 So.2d at 357. Thus, the question here is similar to the question recently presented
to the Eleventh Circuit in Untied Technologies Corp. v. Mazer, whether under this legal standard
and the facts available to the Plaintiff, did the Plaintiff adequately allege that Harrington was
acting within the scope of his employment. 556 F.3d 1260. 1271 (11th Cir. 2009).

Here. Harrington was a supervising manager at Applebee's during the time relevant to
this complaint. PL's Compl. % (Nov. 23, 2010). The purpose of a restaurant is lo sell food and
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beverages, and it can reasonably be inferred that the kind of conduct expected from a supervising
manager would be lo supervise and manage employees and implement the policies of the

company in performing that function. Plaintiff claims that one such policy is the prevention of
employees using cell phones while working and the confiscation of employee cell phones to

effectuate this policy. Id at \ 3-4. Plaintiff further contends that while her cell phone was under
the control of Harrington. Harrington used the phone to make survey calls and while doing so

searched her phone, discovered the photos in question, and sent them to himself. Wat *\ 17-23.
This Court finds that these facts, taicen as true, support the assertion that the activities in question
were of the kind the employee was employed to perform.
Nexl. Plaintiff asserts that this action occurred during the time Plaintiff was working at

Defendant's restaurant, during her shift, and during periods when Harrington was working for
CRC. fhis Court finds that these facts support the assertion that the acts occurred within the time

and space limits of Ilarrington's employment. PL's Compl. \ 13. 19-23. Finally, Plaintiffalleges
that the original reason for obtaining her phone was a company policy of CRC. and that the
subsequent using and abusing her phone was a regular occurrence, was done to boost the store's
ratings, and may be implied to be a policy of the company as well. These facts support the
assertion that the activity in question was at least in part performed to serve the employment. Id
at 16-18.

Thus, because the facts presented in this case meet all the elements necessary for
vicarious liability, they show a plausible link between Harrington's conduct and the finding of

vicarious liability for the Defendant, and, thus, the complaint adequately pleads to the Iqbal
standard of factual plausibility of CRC's vicarious liability in this case.
C. Intentional Infliction of Emotional Distress

"In order to stale a cause of action for intentional infliction of emotional distress, the

plaintiff must demonstrate that: I) the defendant acted recklessly or intentionally; 2) the
defendant's conduct was extreme and outrageous: 3) the defendant's conduct caused the
plaintiffs emotional distress: and 4) plaintiffs emotional distress was severe." Johnson v.

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Thigpen. 788 So. 2d 410. 412 (Fla. Isi Dist. App. 2001). Yet. while the Florida state courts have
allowed claims for intentional infliction of emotional distress, conduct which reaches the level of

outrageousness that would justify such a claim have rarely, if ever, been found solely on verbal
harassment or abuse. Id at 413. In fact, federal courts in Florida have usually required repeated

verbal abuse and repeated physical contact to meet the burden ofoutrageous conduct sufficient to
state a claim of intentional infliction of emotional distress. Mat 413-414. In the present case, no

facts have been alleged of any physical contact, and further facts, while they may be

inappropriate, hardly rise lo the level of outrageous conduct which a claim of intentional
infliction of emotional distress would require. Thus, because it is clear that no relief could be

granted even should Plaintiff amend her Complaint, Defendant's Motion to Dismiss is
GRANTED with prejudice.
D. Invasion of Privacy

Florida has recognized three causes of action for invasion of privacy: (1) appropriation,
(2) intrusion, and (3) public disclosure of private facts. Allslale Ins. Co. v. Ginsberg, 863 So. 2d
156, 162 (Fla. 2003). Only two of the recognized causes of action are asserted in Plaintiffs
Complain. The two invasion of privacy causes of action asserted by the plaintiff are intrusion of
a "place" where "there is a reasonable expectation of privacy" and public disclosure of private
facts. Id

The first cause of action, intrusion, is the physical or electronic intruding into one's

private quarters. Id, Plaintiff claims this occurred when I larringlon took Plaintiffs phone and
searched through iis contents. PL's Compl. ^] 19-21, 49. The second cause of action, public
disclosure of private facts, can be summarized into four elements. "1) the publication. 2) of
private facts, 3) that are offensive and 4) are not of public concern." Doe v. Univision TVGroup,
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Inc.. 717 So. 2d 63, 64 (Fla. 3d Dist. App. 1998). Ilerc, Harrington acquired Plaintiffs picture,

the acquisition of the picture was offensive in nature, Plaintiffs picture was not a public concern
and Harrington spread this picture among employees and patrons. PL's Compl. H20-23. 52-55.
Thus, on both intrusion and public disclosure of private facts, this Court finds that Plaintiff has
sufficiently plead Counts IV and V for invasion of privacy and Defendant's Motion to Dismiss is
DENIED as to the counts.

E. Negligent Retention and Supervision
To slate a claim as to negligent retention or supervision under Florida law the following
elements must be found: "(1) the existence of a relationship giving rise lo a legal duty to

supervise; (2) negligent breach of that duly; (3) proximate causation of injury by virtue of the
breach." Doe v. Mann. 6:05CV259 ORL31DAB. 2007 WL 604981 (M.D. Fla. 2007). (See also

Roberson v. Duval County Sch. Bd. 618 So. 2d 360. 362 (Fla. 1st Dist. App. 1993). Garcia v.
Duffy. 492 So. 2d 435. 439 (Fla. 2d Dist. App. 1986)). "In order to allege facts sufficient to show
breach of the duly to exercise reasonable care in retention of an employee, the plaintiff must

allege facts sufficient to show that once an employer received active or constructive notice of
problems with an employee's fitness, it was unreasonable for the employer not to investigate or
take corrective action such as discharge or reassignment." Garcia. 492 So. 2d at 441.

As Harrington and Plaintiff were employees of Defendant, the existence of a relationship
giving rise to a legal duly is not at issue here. Whether the Defendant had actual or constructive

notice of problems with Harrington's fitness, whether it was unreasonable for the employer not
to investigate or lake corrective action if it had this notice, and whether Defendant's failure if it
had notice and the lack of an investigation and subsequent action was the proximate cause of the
Plaintiffs injury must be alleged lo survive a motion to dismiss.

As lo whether the Defendant had actual or constructive notice of Harrington's fitness.

Plaintiffclaims that the Head Manager had actual knowledge of previous instances of

Harrington's behavior. PL's Compl. ^ 32. However, while it may be unreasonable for an
employer not to investigate or take corrective action if the employer had this knowledge, there
are no facts alleged to support that the Defendant did not investigate previously, or take
corrective action. In fact, Plaintiffs own complaint slates that Harrington was scheduled for

reassignment previous to this incident taking place which may be a fact that corrective action
was taking place in regards to prior incidents. Id at ^ 32. Additionally, Defendant's failure lo
investigate or take corrective action in regards to Plaintiffs complaint of sexual harassment fails
to meet this burden because this supposed breach could not be the proximate cause to the injury
Plaintiff suffered, as the breach would have occurred after the actual injury.

This Court finds that Plaintiff has not pleaded facts sufficient lo satisfy the Iqbal standard
for a claim of negligent supervision or retention. There are no facts which support that Defendant
failed to investigate or take remedial action for previous misconduct, nor can Defendant's failure
to investigate Plaintiffs Complaint satisfy this burden as the lack of remedial action, if any.
could not have been the proximate cause of Plaintiff s injury. As to Count VI, Defendant's
Motion to Dismiss is GRANTED.

F.

Defamation

To survive a motion to dismiss, the elements of defamation, "(1) publication; (2) falsity;

(3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a
public official, or at least negligently on a mailer concerning a private person; (4) actual
damages: and (5) statement must be defamatory" must be plead to the Iqbal standard. Jews For
Jesus. Inc. v. Rapp. 997 So. 2d 1098. 1106 (Fla. 2008).

In the present case. Plaintiff pleads that Harrington sent the pictures to himself, other
employees, and patrons, that Harrington claimed to be having sexual relations with Plaintiff, and
that he took the photo of Plaintiff satisfying the publication requirement. PL's Compl. t 22-23.
Plaintiff claims that Harrington's statements were false, his attentions were unrequited, and that
he look the claimed photos from Plaintiffs phone which would satisfy the requirement of both
falsity, that the actor had actual knowledge of the falsity of his claims, and that such claims were
defamatory towards Plaintiffs character. Wat 14, 24, 65-66. Finally, Plaintiffclaims that
because of these statements, she was unable to work and suffered actual damages because of it.

Thus, because facts which support the elementsof defamation are plead to satisfy the
Iqbal standard, the Defendant's Motion to Dismiss is DENIED as to Count VIE
G. Federal Rule of Civil Procedure 15(a)(2)

Under Rule 15(a)(2) the court shall freely give leave to amend as justice requires, fhis

Court I'lnda that despite the complaint being deficient as regards to Count VI in the interest of
justice Plaintiff is granted leave lo amend the Complaint as to Count VI. However, based on the

facts of this case "no amending" could rectify the complaint as lo Count III, the Court docs not
grant leave to amend in regards lo thai count. Accordingly, it is:

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ORDERED that Defendant's, CASUAL RESTAURANT CONCEPTS INC., Motion to

Dismiss be granted in part and denied in part. Count III of Plaintiff s complaint is GRANTED
with prejudice. Count VI is GRANTED with leave lo amend. Counts II, IV, V, and VII are
DENIED. The Plaintiff has fourteen days from this date to file an amended complaint as to

Count VI. if she opts to amend. Defendant shall answer the amended complaint, ifany. within
fourieen days of the filing of the amended complaint. If no amended complaint is filed within
fourteen days of this dale. Count VI is dismissed with prejudice and the Defendant shall answer

the remaining counts oflhe initial complaint on or before August 8, 2011.

DONE AND ORDERED in Chambers at Tampa. Florida thi^2?day of June. 2011.

Copies to: All parlies and counsel of record

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