Mecca v. Florida Health Sciences Center, Inc.
Filing
15
ORDER granting 8 Defendant's Motion to Dismiss. Count II and Count V are dismissed with prejudice. Count I, Count III, Count IV, and Count VI are dismissed without prejudice. Plaintiff Mecca may replead his Complaint (with the exception of Count II and Count V) within 14 days of the date of this Order. Signed by Judge James S. Moody, Jr on 1/10/2013. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DANIEL MECCA
Plaintiff,
v.
Case No. 8:12-cv-2561-T-30TBM
FLORIDA HEALTH SCIENCES
CENTER INC.,
d/b/a TAMPA GENERAL HOSPITAL
Defendant.
_______________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendant Florida Health
Sciences Center, Inc.’s Motion to Dismiss. (Dkt. 8). The Court, having reviewed
Plaintiff’s Complaint (Dkt. 2), Defendant’s Motion (Dkt. 8), Plaintiff’s Response
to Defendant’s Motion to Dismiss (Dkt. 14), and being otherwise advised of the
premises, concludes that the Motion to Dismiss should be granted.
BACKGROUND
For purposes of deciding this motion, the court accepts as true the factual
allegations in Mecca’s complaint. See Hill v. White, 321 F.3d 1334, 1335 (11th
Cir.2003). Plaintiff, Daniel Mecca (“Mecca”) was hired by Defendant Tampa
General Hospital (“Tampa General”) in May 2004 as an RN in the Vascular
Access Unit. Mecca’s supervisor was RN Sandra Mehner. (Dkt. 2, ¶ 15).
Beginning in 2009, Mecca and another employee observed Supervisor
Mehner straying from the Tampa General’s strict policy regarding the placement
of PICC (Peripherally Inserted Central Catheter) lines into the veins of patients.
(Dkt. 2, ¶ 19). After Mecca witnessed Supervisor Mehner continue to stray from
Tampa General’s policy, he approached her about it. (Dkt. 2, ¶ 22).
Supervisor Mehner was unwilling to talk to Mecca about his concerns.
(Dkt. 2, ¶ 23). Mecca then contacted Human Resources and upper management.
(Dkt. 2, ¶ 24). Over the next few months, Mecca was the subject of multiple
complaints made by Supervisor Mehner and other unidentified nurses. (Dkt. 2 ¶
27). The complaints all alleged anger issues and threatening behavior by Mecca.
(Dkt. 2 ¶ 29). The complaints were meritless and were created in retaliation for
Mecca’s vocal opposition regarding the improper PICC procedures being taught
by Supervisor Mehner. (Dkt. 2, ¶ 28, 30).
During a closed door meeting with HR representatives, hospital
administrators, and hospital security, Mecca was interrogated about his mental
state and coerced into talking about past personal and medical issues from his
youth. (Dkt. 2, ¶ 33). After this meeting, Mecca was subjected to a psychiatric
evaluation against his will, based on the belief that be posed a threat to his coworkers. (Dkt. 2, ¶ 35). Tampa General, in reliance on Mecca’s past medical and
emotional issues, presented Mecca with an ultimatum that he could resign or go
out on medical leave. (Dkt. 2, ¶ 36).
Mecca chose to go on medical leave. (Dkt. 2, ¶ 37). Upon Mecca’s first day
back on May 7, 2010, he began to feel ill. (Dkt. 2, ¶ 40). Mecca obtained
permission from Supervisor Mehner to leave. Later that day, Mecca received a text
message from his manager telling him not to return to work until he was asked to
do so. (Dkt. 2, ¶ 41). Mecca was subsequently never asked to return to work, and
was told his employment with Tampa General was being terminated. (Dkt. 2, ¶
43).
STANDARD OF REVIEW
When reviewing a motion to dismiss, a court must accept all factual
allegations contained in the complaint as true, and view the facts in a light most
favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007).
However, unlike factual allegations, conclusions in a pleading “are not entitled to
the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). On the
contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed,
“conclusory allegations, unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir.2003). In order to survive a motion to dismiss, the
complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
DISCUSSION
I.
TAMPA GENERAL’S ARGUMENT THAT MECCA FAILS TO
ALLEGE SUFFICIENT FACTS TO STATE A CLAIM FOR RELIEF
AS REQUIRED BY TWOMBLY.
a. Tampa General argues Counts I and IV must be dismissed for failure to
state a claim.
Under either count, Mecca must plead that he “(1) had, or was perceived to
have a ‘disability’; (2) was a ‘qualified’ individual; and (3) was discriminated
against because of his disability.” Carruthers v. BSA Adver., Inc., 357 F.3d 1213,
1215, (11th Cir. 2004). To survive a motion to dismiss, Mecca’s complaint must
include sufficient facts as to each element to support a “reasonable inference” that
he is entitled to relief under the ADA. D’Angelo v. ConAgra Foods, Inc., 422 F.3d
1220, 1227 (11th Cir. 2005).
Here, Mecca’s complaint fails to meet the pleading requirements. Mecca
asserts he suffers from a recognized disability of which Tampa General was well
aware, however Mecca fails to state what this disability is and how Tampa General
knew about it.
Since the alleged discriminatory conduct in this case took place after
January 1, 2009, the American with Disabilities Act Amendments Act of 2008
(“ADAAA”) applies. 42 U.S.C. § 12112. The ADAAA amended the ADA to,
among other things, promulgate a more liberal standard of the term “disabled,”
making it significantly easier for a plaintiff to show disability. Indeed, the new
regulations state that:
The primary purpose of the ADAAA is to make it easier for people
with disabilities to obtain protection under the ADA. Consistent with
the Amendments Act's purpose of reinstating a broad scope of
protection under the ADA, the definition of ‘disability’ in this part
shall be construed broadly in favor of expansive coverage to the
maximum extent permitted by the terms of the ADA.
29 C.F.R. § 1630.1(c)(4).
Under the ADAAA, a disability is defined as a “physical or mental
impairment that substantially limits one or more of the major life activities of such
individual.” 29 C.F.R. § 1630.2(g)(1)(I). An impairment qualifies as a disability if
it substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population. An impairment need not
prevent, or significantly or severely restrict, the individual from performing a
major life activity in order to be considered substantially limiting. 29 C.F.R. §
1630.2(j)(1)(ii).§
The new regulations go on to explain that the term “substantially limits” is
to be broadly construed “in favor of expansive coverage, to the maximum extent
permitted by the terms of the ADA.” 29 C.F.R. § 1630.2(j)(1)(I). Major life
activities are defined as, among other things, “performing manual tasks ...
walking, standing, sitting, reaching, lifting, bending, ... working ... [and the]
operation of a major bodily function, including ... the ... musculoskeletal”
function. 29 C.F.R. § 1630.2(I) (emphasis added).
Since Mecca has failed to describe what his disability is, the Court is unable
to determine whether Mecca suffered from an impairment that meets ADA
requirements. Plaintiff’s complaint makes the assumption that his disability
qualifies under the ADA, but, unlike factual allegations, conclusions in a pleading
“are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1950 (2009). Legal conclusions “must be supported by factual allegations.” Id.
Mecca also fails to plead facts as to how he was discriminated against
because of his disability. Mecca draws the legal conclusion that he was terminated
based on his disability without supporting facts. The Court cannot accept the legal
conclusion Mecca was terminated based on his disability without his pleading
supporting facts. Iqbal, 129 S.Ct., at 150.
This ground for dismissal should be granted.
b. Tampa General argues Counts III and VI for retaliation should be
dismissed for failure to state a claim.
In order to allege retaliation under the ADA and FCRA, Mecca must plead:
(1) he engaged in conduct protected by the ADA; (2) he suffered an adverse
employment action; and (3) the adverse employment action was causally related to
the protected conduct. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336
(11th Cir.1999). To establish a causal link between the protected activity and the
adverse employment action, “a plaintiff merely has to prove that the protected
activity and the negative employment action are not completely unrelated.” Meeks
v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir.1994). The Court
construes this causal link element broadly. Pennington v. City of Huntsville, 261
F.3d 1262, 1266 (11th Cir. 2001).
Mecca alleges he engaged in protected conduct by requesting FMLA leave.
(Dkt. 2, ¶ 40, 71). Mecca contends his decision to go on FMLA leave was the
reason for his employment being terminated. (Dkt. 2, ¶ 72). But in Counts II and
VI, Mecca state his claims are brought under the ADA. Going on FMLA leave is
not conduct protected under the ADA. Mecca provides no authority showing the
conduct in question is protected under the ADA.
This ground for dismissal should be granted.
II.
TAMPA GENERAL’S ARGUMENT THAT MECCA HAS FAILED
TO EXHAUST HIS ADMINISTRATIVE REMEDIES AS TO
COUNTS II, III, V, AND VI.
Tampa General contends Mecca has failed to exhaust his administrative
remedies as to Counts II, III, V, and VI. A plaintiff must exhaust his available
administrative remedies by first filing a charge with the EEOC. Anderson v.
Embarq / Sprint, 379 F. App'x 924, 926 (11th Cir.2010). “The starting point of
ascertaining the permissible scope of a judicial complaint alleging employment
discrimination is the administrative charge and investigation.” Id. The Eleventh
Circuit has stated that a plaintiff's complaint is “limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.” Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th
Cir.2000). Tampa General asserts Mecca exceeded the scope of the Charge as to
Counts II, III, V, and VI and therefore has failed to exhaust his administrative
remedies as to those Counts.
a. Counts III and VI alleging retaliation.
Tampa General asserts not only did Mecca not allege retaliation in the
factual allegations of his Charge, he also did not check the retaliation box on his
Charge.
The proper inquiry is whether Counts III and VI of Mecca’s complaint
alleging retaliation were like or related to, or grew out of, the allegations contained
in the EEOC charge. “[A] plaintiff's judicial complaint is limited by the scope of
the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination.” Gregory v. Department of Human Resources, 355 F.3d
1277, 1280 (11th Cir.2004). “This Court need not bar any claims simply because
the Plaintiff did not check all of the proper boxes on the EEOC charge.” Id.
Mecca filed the EEOC charge after he was terminated. The ultimate act
Mecca complained about in the Charge was that he was terminated due to his
disability resulting in discrimination. The Court is unable to discern whether
retaliation could reasonably be expected to grow out of Mecca’s claim of disability
without knowing more of the facts supporting the alleged disability. Therefore, the
Court will not rule on the issue at this time.
b. Count V alleging Hostile Work Environment.
Tampa General asserts that a hostile work environment claim is outside the
scope of Mecca’s charge. Tampa General contends the Charge does not refer to
any acts that could form the basis for a hostile environment claim, and the Charge
specifically states the discrimination started and ended on the date of termination,
May 18, 2010.
The Court agrees. Mecca’s Charge only asserts one act of discrimination:
the termination of employment due to disability. (Dkt. 8-1, p. 2). Mecca’s hostile
work environment claim fails to show how Mecca being subject to a hostile work
environment was like or related to, or grew out of, the termination of his
employment. Therefore, because Mecca has failed to exhaust his administrative
remedies as to Count V, Count V should be dismissed.
c. Count II alleging Impermissible Medical Inquiries.
Tampa General asserts Count II exceeds the scope of the Charge and
therefore Mecca has failed to exhaust his administrative remedies.
In his complaint, Mecca contends Tampa General required medical
examinations and made medical inquiries as to Mecca’s past medical history
without showing the examination was job-related. (Dkt. 2, ¶ 53). Mecca asserts
that, in front of personnel who had the authority to make employment decisions,
Mecca was coerced into revealing past personal and medical issues. (Dkt. 2, ¶
33).
Mecca fails to make a claim for impermissible medical inquiries in his
Charge. “A plaintiff’s judicial complaint is limited by the scope of the EEOC
investigation which can be reasonably expected to grow out of the charge of
discrimination.” A.M. Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1332
(11th Cir.2000). It was unforeseeable for the EEOC investigation to have grown to
include the medical inquiry claim. A claim that Tampa General made an
impermissible medical inquiry is a distinct claim from the allegation that Mecca’s
employment was terminated due to his disability.
This ground for dismissal should be granted.
III.
TAMPA GENERAL’S ARGUMENT THAT COUNTS I AND IV
EACH CONTAIN TWO DISTINCT CLAIMS AND THEREFORE
DO NOT COMPLY WITH RULE 10(B).
Tampa General contends that by Mecca combining the claim he was
discriminated against due to a disability, with the claim he was discriminated
against due to a perceived disability, he creates confusion. Tampa General asserts
that separating these two distinct claims into two counts would promote clarity as
the claims have separate elements of proof.
As a practical matter, Mecca has pled in the alternative. Tampa General has
acknowledged as much. (Dkt. 8, p. 11). Mecca has pled related claims that require
similar elements of proof. The Court sees no reason to require Mecca to separate
the claims.
For the foregoing reasons it is ORDERED and ADJUDGED as follows:
1.
DEFENDANT’S MOTION TO DISMISS (Dkt. 8) is GRANTED.
2.
Count II and Count V are dismissed with prejudice.
3.
Count I, Count III, Count IV, and Count VI are dismissed without
prejudice.
4.
Plaintiff Mecca may replead his Complaint (with the exception of
Count II and Count V) within 14 days of the date of this Order.
DONE AND ORDERED this 10th day of January, 2013, at Tampa, Florida.
Copies furnished to:
Counsel/Parties of Record
S:\Odd\2012\12‐cv‐2561 mtd 8.docx
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?