Chiles v. Symon Says Enterprises, Inc.
Filing
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ORDER: Defendant's Motion to Dismiss Counts IV and V of the complaint (Dkt. #5) is GRANTED. Counts IV and V of the complaint are dismissed without prejudice. Plaintiff may file an Amended Complaint to more sufficiently state a claim under Counts IV and V of the Complaint within fourteen (14) days of the date of this Order. Signed by Judge James S. Moody, Jr on 1/17/2014. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DANIEL K. CHILES,
Plaintiff,
v.
Case No: 8:13-cv-2827-T-30TBM
SYMON SAYS ENTERPRISES, INC.,
Defendant.
ORDER
THIS CAUSE comes before the Court upon the Defendant's Motion to Dismiss
Counts IV and V of the Complaint (Dkt. #5) and Plaintiff's Response in Opposition to the
Motion (Dkt. #7). Upon review and consideration, it is the Court’s conclusion that the
Motion should be granted.
Plaintiff is a former employee of Defendant and alleges violations of the Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et. seq. (“ADA”), the
Florida Civil Rights Act, § 760 et seq. ("FCRA"), the Family Medical and Leave Act, 29
U.S.C. § 2601 et seq. ("FMLA"), and also alleges the tort of intentional infliction of
emotional distress (“IIED”). Plaintiff is infected with the HIV virus. Plaintiff’s allegations
are that his supervisors commented that they did not want other employees exposed to an
incurable disease, that they dramatically reduced his hours once they learned of his
condition, and that he was ultimately fired after one medical absence on the basis of his
HIV status.
I.
Motion to Dismiss Standard
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, 556 U.S. 662, 679 (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).
While a “heightened fact pleading of specifics” is not required, “enough facts to
state a claim to relief that is plausible on its face” is necessary. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). Federal Rule of Civil Procedure 12(b)(6) allows a complaint
to be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6).
II.
Intentional Infliction of Emotional Distress (Count IV)
In Count IV, Plaintiff attempts to state a claim for intentional infliction of
emotional distress (“IIED”). In support, Plaintiff states that:
Defendant’s conduct toward Plaintiff Daniel K. Chiles was intentional
or reckless. Defendant’s agents intended its behavior when they knew or
should have known that emotional distress would likely result … [t]he
conduct in fact caused emotional distress and the emotional distress was
severe.
Florida recognizes an independent cause of action for IIED. See Metropolitan Life
Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985). In order to state a cause of action
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for IIED, the plaintiff must demonstrate that: 1) the defendant acted recklessly or
intentionally; 2) the defendant's conduct was extreme and outrageous; 3) the defendant's
conduct caused the plaintiff's emotional distress; and 4) plaintiff's emotional distress was
severe. Johnson v. Thigpen, 788 So. 2d 410, 412 (Fla. 1st DCA 2001). Florida courts have
defined “outrageous” to mean “conduct … so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized community.” Id. at 412-413.
Whether the actor's conduct is outrageous and utterly intolerable in a civilized
community, and thus may form the basis for a claim for intentional infliction of emotional
distress, is a matter of law for the court. Id. Plaintiff has failed to allege that Defendant’s
conduct was outrageous, and further, has failed to identify any conduct of the Defendant’s
that could be considered outrageous or beyond bounds of decency or utterly intolerable.
Even when read in the light most favorable to Plaintiff, the conduct alleged is not
sufficient to state a cause of action for IIED. Florida courts have consistently dismissed
cases alleging discriminatory and offensive behavior and language against individuals,
particularly in the workplace. See e.g. Ponton v. Scarfone, 468 So. 2d 1009 (Fla. 2nd DCA
1985) (utterances designed to induce employee to join in a sexual liaison did not meet the
threshold required to establish intentional infliction of emotional distress). See also Hare
v. Citrus World, Inc., 39 F. Supp. 2d 1365, 1369 (M.D. Fla. 1999) (“precedent on the tort
of intentional infliction of emotional distress, especially within the employment context,
reveals an unwillingness by Florida courts to allow a plaintiff to proceed on this theory”);
Lay v. Roux Laboratories, Inc., 379 So. 2d 451, 452 (Fla. 1st DCA 1980) (affirming
dismissal of the plaintiff’s complaint alleging that plaintiff’s supervisor threatened the
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plaintiff with her job, used humiliating language and verbal attacks, and called the plaintiff
a “n**ger”); Ball v. Heilig-Meyers Furniture Co., 35 F. Supp. 2d 1371, 1373 (M.D. Fla.
1999) (dismissing IIED claim when plaintiff alleged her employment was conditioned
upon her submission and acquiescence to the manager’s sexual advances, vulgar language
and comments, and physical contact with breasts and between manager’s genitalia and
plaintiff’s posterior).
In cases where Florida courts have permitted a plaintiff to move forward with an
IIED claim, they often involve threats of death, rape, or severe bodily harm to the plaintiff
or family members. See Johnson v. Thigpen, 788 So. 2d at 413; Nims v. Harrison, 768 So.
2d 1198 (Fla. 1st DCA 2000) (finding sufficient outrageousness to state an IIED claim
where the allegations involved death threats and threats to rape the plaintiff’s children and
other family relatives). Therefore, the Court concludes that Plaintiff fails to state a cause
of action for IIED.
III.
Violation of the FMLA (Count V)
In regard to his claim of Defendant’s violation of the FMLA in Count V, Plaintiff
states the following:
[…]Plaintiff Daniel K. Chiles alleges that Defendant unlawfully and
discriminatorily terminated Plaintiff’s employment on account of his
disability or disabilities; and said actions violate the provisions of the Family
and Medical Leave Act of 1993 […]
Plaintiff did not allege that he was entitled to any benefit under the FMLA as an
eligible employee, that he requested FMLA benefits or that the benefit was denied. It
appears that Plaintiff is attempting to assert a claim for FMLA interference or retaliation.
Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th
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Cir. 2001) (“the FMLA creates two types of claims: interference claims, in which an
employee asserts that his employer denied or otherwise interfered with his substantive
rights … and retaliation claims, in which an employee asserts that his employer
discriminated against him because he engaged in activity protected by the Act”). To the
extent that Plaintiff is attempting to allege any claim under the FMLA, he has failed to
allege sufficient facts to support such a claim. Therefore, the Court concludes that this
count should be dismissed.
It is therefore ORDERED AND ADJUDGED that:
1.
Defendant's Motion to Dismiss Counts IV and V of the complaint (Dkt. #5)
is GRANTED.
2.
Counts IV and V of the complaint are dismissed without prejudice.
3.
Plaintiff may file an Amended Complaint to more sufficiently state a claim
under Counts IV and V of the Complaint within fourteen (14) days of the
date of this Order.
DONE and ORDERED in Tampa, Florida, this 17th day of January, 2014.
Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-2827 mtd 5.docx
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