Suarez v. The School Board of Hillsborough County, Florida and its employees et al

Filing 80

ORDER granting in part and denying in part 47 motion to dismiss as setout in this order. Plaintiff may file an amended complaint on or before May 29th, 2014. If an amended complaint is not filed by this date, the claims dismissed without prejudic e will be dismissed with prejudice, leaving only the discrimination claims stemming from Plaintiffs interactions with Young Creative Science Center (Counts II and VII), Famell Middle School(Count III), Robinson High School (Count VI), Riverview High School (Count VIII),Strawberry Crest High School (Count IX), and the School Board regarding the Supervisor/Elementary Generalist position opening (Count I). Under this Order, Plaintiff would not be prohibited from bringing claims stemming from the em ployment decisions alluded to in Count X if and when Plaintiff received notice(s) of intent to sue from the EEOC for any of discriminatory acts alleged therein. The Plaintiff is cautioned to not include in an amendedcomplaint any counts or claims that have been dismissed with prejudice by this Order, for example, claims for defamation. Signed by Judge Elizabeth A. Kovachevich on 5/14/2014. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ENRIQUE R. SUAREZ,
Plaintiff,

vs.

CASE NO. 8:13-cv-01238-EAK-MAP

THE SCHOOL BOARD OF
HILLSBOROUGH COUNTY,
FLORIDA, Et al.,
Defendants.

/
ORDER

THIS CAUSE is before the Court on Defendants’, The School Board of Hillsborough
County, Florida (“School Board”), Matthew Romano, Nadine Johnson, Dr. James Goode, Dr.
Olaniyio Popoola, Mary Frances Luysterburg, Johan von Ancken, John Cobb, David Brown,
and Robert Heilmann (collectively, “Defendants”), Motion to Dismiss Plaintiffs “Second
Amendment to Complaint” (Doc. 47) and pro se Plaintiffs, Enrique Suarez, Response (Doc.
49). For the reasons set forth below, Defendants’ Motion to Dismiss is GRANTED IN PART
and DENIED IN PART, and Plaintiffs Second Amendment to Complaint is DISMISSED IN
PART WITH PREJUDICE and DISMISSED IN PART WITHOUT PREJUDICE.

I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff alleges that, through a pattern of discrimination, the School Board of

Hillsborough County has illegally denied him multiple opportunities for employment within
the school system by not hiring him for positions for which he interviewed and denying him the
opportunity to interview for other positions for which he applied. Additionally, the Plaintiff
alleges that various School Board employees have defamed him through communications made
during the period of the discrimination.
Plaintiff filed his original complaint (Doc. 1) on May 9,2013, and an amended
complaint (Doc. 7) on May 21,2013, alleging that the Defendants engaged in race and national
origin discrimination in violation of Title VII and age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”). The complaints also included allegations of
defamation against multiple Defendants. Upon receipt of Plaintiff’s Amendment to Complaint
(Doc. 7), Defendants’ Motion to Dismiss (Doc. 24), and Plaintiff s Response (Doc. 26), this
Court dismissed the amended complaint with leave to amend in an Order dated October 16,
2013 (Doc. 40).

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” However, in order to
withstand a motion to dismiss, “a complaint must contain sufficient factual material, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Twombly’s
plausibility standard requires that the allegations be more than merely conceivable. Id. A
factually sufficient complaint “allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Application of this
standard follows two analytical principles. First, the court will not presume the truth of a
complaint’s legal conclusions. Second, a complaint’s well-pleaded factual allegations must
allow the court to infer the plausibility, rather than the mere possibility, that the plaintiff is
entitled to the relief sought. Id. at 678-79.
The court will evaluate a pro se litigant’s pleadings more leniently than those of an
attorney. Nunnelee v. Morgan, 550 F. App’x 716, 716 (11th Cir. 2013). However, even under
this more liberal standard of construction, such pleadings must still conform to the applicable
procedural rules. Loren v. Sasser, 309 F.3d 1296,1304 (11th Cir. 2002).

III. DISCUSSION
In their motion to dismiss, Defendants argue that the Plaintiffs defamation claims and a
number of the discrimination claims fail to meet the Twombly plausibility standard, that Florida
law provides no cause of action for perjury, that the employee Defendants should be dismissed,
and that Count X should be dismissed for failure to exhaust administrative remedies.
Additionally, Defendants request dismissal of the entire second amended complaint based on
the Plaintiff’s failure to comply with the pleading requirements.
This Court finds that the conclusory allegations of defamation that plagued Plaintiffs
first amended complaint have not been substantiated in any meaningful way and that the
Plaintiff has failed to follow the Equal Employment Opportunity Commission’s (“EEOC”)
procedural prerequisites related to the discrimination claims in Count X. Claims for race and/or
age discrimination related to Plaintiffs interviews and/or applications for employment at Leto

High School and King High School still lack sufficient factual bases. The previous Order
dismissing Plaintiffs first amended complaint made clear that there is no cause of action for
perjury. Though Plaintiffs second amended complaint fails to comport with the Federal Rules
of Civil Procedure, this Court’s decision rests on substantive shortcomings rather than technical
inconsistencies.
A. Defamation
To successfully assert a claim for defamation under Florida law, a plaintiff must
establish five elements: (1) the defendant published the statement; (2) the statement was false;
(3) the statement was defamatory; (4) the defendant acted negligently; and (5) the plaintiff
suffered damages as a result of defendant’s publication. Brown v. Suncoast Beverage Sales,
LLP, 2010 WL 555675, at *2 (M.D. Fla. Feb. 10,2010). “Under Florida law, words are
defamatory when they charge a person with an infamous crime, or tend to subject one to hatred,
distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.”
Seropian v. Forman, 652 So. 2d 490,495 (Fla. 4th DCA 1995) (citing Adams v. News-Journal
Corp., 84 So. 2d 549, 551 (Fla. 1955)). Defamation claims against employees or agents of the
School Board individually must include sufficient allegations of statutorily defined culpability
on the part of the individual actors:
[n]o officer, employee, or agent of the state or of any of its
subdivisions shall be held personally liable in tort or named as a
party defendant in any action for any injury or damage suffered
as a result of any act, event, or omission of action in the scope of
her or his employment or function, unless such officer,
employee, or agent acted in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human
rights, safety, or property.

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Fla. Stat. 768.28(9)(a) (2012).
Based on the organization of the second amended complaint, the clearest way to address
Plaintiffs defamation claims is by occurrence and parties involved, with references to the count
in which the allegations appear. Plaintiff clarifies in Count IV that he is not asserting a
defamation claim in relation to Dr. Popoola’s communications with the EEOC and Defendants’
counsel (Doc. 42 at 3-4), leaving all relevant allegations concerning defamation in Counts V
and VI.
Counts V and VI reference communications made by Mr. Romano and Mr. Von Ancken
to the EEOC and Defendants’ counsel. Both individuals were employed by the School Board.
The second amended complaint alleges that Mr. Romano shared information regarding
Plaintiffs interview for the King High School position with Mr. Von Ancken prior to Plaintiffs
interview for the Robinson High School position. (Doc. 42 at 4, Count V) Whereas Plaintiff’s
response to the motion to dismiss alleges that it was Mr. Von Ancken who shared such
information with Mr. Romano prior to the King High School interview. (Doc. 49 at 5)
Regardless of the actual order of the communications, Plaintiff has made insufficient
allegations of the requisite bad faith, malicious purpose, or wanton and willful disregard needed
to sustain the imposition of individual liability. Furthermore, Florida public employees “enjoy
absolute immunity from suit for defamation for statements made as part of their duties.”
Boggess v. School Bd. O f Sarasota Cnty., 2008 WL 564641, at *6 (M.D. Fla. Feb. 29,2008)
(citing City o f Miami v. Wardlow, 403 So. 2d 414,416 (Fla. 1981)). Accordingly, the
defamation claims asserted against the individual Defendants are DISMISSED with prejudice.
In Counts V and VI, Plaintiff alleges communications by the School Board to the EEOC

and Defendants’ counsel concerning Plaintiff’s interview performance constitute defamation.
Defendants assert that the EEOC investigation should be considered a quasi-judicial
proceeding, making the statements absolutely privileged. (Doc. 47 at 12) “Florida recognizes
that defamatory words published during the course of a judicial or quasi-judicial proceeding are
absolutely privileged if they are connected with, or relevant or material to, the cause at hand or
subject of inquiry.” Gandy v. Trans World Computer Tech. Group, 787 So. 2d 116,119 (Fla. 2d
DCA 2001) (“An EEOC investigation is a quasi-judicial proceeding.”); Foster v. Select
Medical Corp., Inc., 2013 WL 764780, at *7 (M.D. Fla. Feb. 28, 2013) (“Absolute immunity
applies i n . . . EEOC investigations.”); Kidwell v. General Motors Corp., 975 So. 2d 503, 504
(Fla. 2d DCA 2007) (holding that absolute immunity applies to defamatory statements made
during the course of a quasi-judicial proceeding as long as the statement bears some relation to
the proceeding). Even if defamatory, the alleged statements of the School Board made in the
course of the EEOC investigation are afforded absolute immunity. Accordingly, any claims for
defamation related to comments made by the School Board in relation to the EEOC
investigation are DISMISSED with prejudice.
Plaintiffs other claims for defamation concern statements made, in effect, by the
School Board to the School Board and statements made by the School Board to the Plaintiff. In
Bush v. Raytheon Co., the Eleventh Circuit held that distribution of allegedly false performance
reviews among a company’s managers “[did] not constitute publication to a third party under
Florida law and thus [was] not actionable.” 373 F. App’x 936, 941 (11th Cir. 2010) (citing
American Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007)). Likewise, making
defamatory statements to the party alleging defamation does not qualify as publication. Geddes,

960 So. 2d at 833. Consequently, Plaintiffs remaining claims for defamation are DISMISSED
with prejudice.
B. Discrimination
Title VII prohibits discriminatory employment practices based upon employees’ or
applicants’ race or national origin. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973). The ADEA prohibits employment practices that discriminate based on age. Trans
World Airlines, Inc. v. Thurston, 469 U.S. I l l , 120 (1985).
As previously addressed by this Court in its order dismissing the first amended
complaint (Doc. 40 at 4-5) and as acknowledged by the Plaintiff in his second amended
complaint (Doc. 42 at 2), the race and/or age discrimination claims against the individual
Defendants have been dismissed and are not under consideration in this order. What remains
are claims for race and/or age discrimination against the School Board, spread across Counts I
through X.
Defendants argue that the Plaintiffs second amended complaint fails “to plead
sufficient factual matter to support a reasonable inference of discrimination” in Counts II, IV,
V, VII, and X. (Doc. 47 at 16-17) Defendants’ motion to dismiss also asserts that Count X must
be dismissed because Plaintiff failed to exhaust his administrative remedies with respect to any
discrimination claims contained therein. (Doc. 47 at 19-20)
Count IV concerns Plaintiffs interview for a part-time position at Leto High School.
(Doc. 42 at 3-4) Though Plaintiff contends that the allegations in Count IV “are solid and
grounded on Title VII Laws” (Doc. 42 at 4), the complaint contains no allegations that race or
age played a role in the employment decision. Therefore, any claims for discrimination related

to the part-time position at Leto High School are DISMISSED without prejudice.
Similarly, Count V—discussing Plaintiffs unsuccessful interview for a social studies
teaching position at King High School—includes a reference to “a pattern of unlawful racial
behavior to justify [the School Board’s] illegitimate employment practices” but provides no
factual allegations regarding race or age discrimination. (Doc. 42 at 4) Therefore, claims for
discrimination related to the social studies teaching position at King High School are
DISMISSED without prejudice.
Count II states no claim for retaliation but instead provides background factual
information pertaining to Plaintiffs interaction with Dr. Goode as an introduction to the
allegations in Count VII. (Doc. 42 at 3, 5) In Count VII, Plaintiff describes how he missed an
opportunity to interview for a social studies teaching position at the Young Creative Science
Center because the email inviting him to interview was sent to an “alternative email address.”
(Doc. 42 at 5) Plaintiff alleges that Dr. Goode instructed the school to use this alternative email
address as “retaliation” against him for contacting the School Board’s Human Resources
department. (Doc. 42 at 5) In order to establish a prima facie case of retaliation, a plaintiff must
allege sufficient facts to satisfy three elements: (1) plaintiff engaged in statutorily protected
activity; (2) plaintiff then suffered a materially adverse employment action; and (3) there exists
a causal connection between the statutorily protected activity and the adverse employment
action. Parker v. Bd. O f Educ., 403 F. App’x 477,478 (11th Cir. 2010). The Plaintiff has not
alleged that he engaged in any protected activity, as his complaint to Human Resources was
based only on Dr. Goode’s alleged failure to timely respond to Plaintiffs employment
inquiries. However, in Plaintiffs response he alleges that the School Board hired both “a 23

year old White female” for the same social studies teaching position for which he had
unsuccessfully applied and “a 31 year old female” for a Spanish teaching position for which he
had also applied. (Doc. 49 at 4) Therefore, Defendants’ motion to dismiss discrimination claims
related to Plaintiffs unsuccessful attempts at employment at the Young Creative Science
Center is DENIED.
Count X contains nothing more than a listing of seventeen schools with school
representatives’ contact information, a description of the teaching position(s) Plaintiff applied
for at each, and requests for records of communications between each school and Dr. Goode. As
Plaintiff acknowledges in his response, he has not brought charges of discrimination with the
EEOC nor received notices of right to sue from the EEOC for any of the instances of
discrimination alleged in Count X. Therefore, all claims for discrimination contained in Count
X are DISMISSED without prejudice. Accordingly, it is

ORDERED that Defendants’ Motion to Dismiss is GRANTED IN PART and
DENIED IN PART and Plaintiffs Second Amendment to Complaint is DISMISSED IN
PART WITH PREJUDICE and DISMISSED IN PART WITHOUT PREJUDICE as set
out in this order. Plaintiff may file an amended complaint on or before May 29th, 2014. If an
amended complaint is not filed by this date, the claims dismissed without prejudice will be
dismissed with prejudice, leaving only the discrimination claims stemming from Plaintiffs
interactions with Young Creative Science Center (Counts II and VII), Famell Middle School
(Count III), Robinson High School (Count VI), Riverview High School (Count VIII),
Strawberry Crest High School (Count IX), and the School Board regarding the

Supervisor/Elementary Generalist position opening (Count I). Under this Order, Plaintiff would
not be prohibited from bringing claims stemming from the employment decisions alluded to in
Count X if and when Plaintiff received notice(s) of intent to sue from the EEOC for any of
discriminatory acts alleged therein. The Plaintiff is cautioned to not include in an amended
complaint any counts or claims that have been dismissed with prejudice by this Order, for
example, claims for defamation.

DONE and ORDERED in Chambers, in Tampa, Florida., this / ^ c f a y of May,
2014.

r

Assigned Magistrate Judge

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