Juback v. Michaels Stores, Inc.
Filing
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ORDER granting in part and denying in part 8 motion to dismiss and to strike. Signed by Judge James D. Whittemore on 7/22/2014. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TIMOTHY R. JUBACK,
Plaintiff,
Case No. 8:14-cv-00913-T-27EAJ
vs.
MICHAELS STORES, INC.,
Defendant.
ORDER
BEFORE THE COURT is Defendant's Motion to Dismiss and to Strike (Dkt. 8), which
Plaintiff opposes (Dkt. 10). Upon consideration, the motion (Dkt. 8) is GRANTED in part and
DENIED in part.
I.
INTRODUCTION
While employed by Defendant Michaels Stores, Inc., Plaintiff Timothy Juback twice
"severly" injured himself on the job (Dkt. 1
~~
6, 8, 11, 12). After the first injury, Juback's
supervisor instructed him not to file a workers' compensation claim because it would impact the
company's finances, a warning Juback heeded (id.
~ 9).
Immediately after the second injury, Juback
was provided a workers' compensation provider list, and he visited a physician the following day
(id.~~
12, 13). Despite his supervisor's knowledge of the doctor's appointment, Juback received an
email requiring him to be available for a discussion of "performance issues" the day after his second
injury (id.
~
14). Juback eventually spoke with his supervisor later that day. The supervisor, John
Roberts, emailed Juback a document to be discussed on the call, which Roberts characterized as a
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"final warning" for Juback's violations of Michaels policy (id.
ii 15). On the call, Roberts insisted
that Juback quickly read and sign the "Final Warning" document, or he would be fired (id.
iii! 16,
17).
The next week, on September 12, 2013, a physician informed Juback the he may have
cervical spine damage and insisted that Juback schedule an appointment with a spinal surgeon (id.
ii
18). The physician then completed a workers' compensation report and cleared Juback to return to
work as long as (1) he did not travel by plane, and (2) he did not travel by car for more than fifty
miles without extended breaks (id.
ii 19). After Juback conveyed the limitations to Roberts, he was
"berated" for not being able to travel on a previously arranged work trip (id.
ii 20). On September
30, twenty-five days after suffering the second injury, Roberts terminated Juback "without cause,
reason, or notice" (id.
ii 21 ). After he was terminated, Juback provided his final mileage and expense
report to Roberts, but Michaels has not fully reimbursed him (id.
iii! 24, 25).
Juback filed this lawsuit, alleging four main claims and two in the alternative. Count I alleges
"Coercion" in violation of§ 440.205, Florida Statutes. Count II alleges retaliatory discharge in
violation of§ 440.205, Florida Statutes. Count III alleges "Interference With, Restraint, and Denial
of Family Medical Leave Act Rights," in violation of 29 U.S.C. § 2615. And Count IV is titled a
"Violation of Chapter 448 of the Florida Statutes." In the alternative, Juback alleges unjust
enrichment (Count V) and breach of implied contract (Count VI). Michaels moves to dismiss the
Complaint as a shotgun pleading. It also moves to dismiss Counts I, III, IV, V, and VI on individual
grounds for failure to state a claim. Finally, Michaels moves to strike the claims for attorneys' fees
in Counts I and II, and the claims for pain and suffering, mental distress, and punitive damages in
Count III.
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II.
STANDARD
A complaint should contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This Rule does not require detailed factual
allegations, but it demands more than an unadorned, conclusory accusation of harm. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). "The complaint must contain enough facts to make a claim for
relief plausible on its face." Resnick v. AvMed, Inc., 693 F.3d 1317, 1324-25 (11th Cir. 2012).
"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556
U.S. at 679 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550
U.S. at 556).
Although it is axiomatic that the Court must accept as true all of the allegations contained
in the complaint, this tenet is "inapplicable to legal conclusions." Id. "While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. All
reasonable inferences must be drawn in the plaintiffs favor. St. George v. Pinellas Cnty., 285 F.3d
1334, 1337 (I Ith Cir. 2002).
III.
DISCUSSION
A.
The Complaint Is Not a Shotgun Pleading.
Michaels first argues that the Complaint should be dismissed as a shotgun pleading. While
Juback may have inartfully pleaded his claims by incorporating all twenty-five introductory
paragraphs into each count, it cannot be said, as Michaels argues, that this pleading method
"obfuscates" the factual basis for each claim (Dkt. 8 at 2). Rather, it is possible to determine "which
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allegations of fact are intended to support which claim(s) for relief." Paylor v. Hartford Fire Ins.
Co., 748 F.3d 1117, 1126 (11th Cir. 20l4)(quotingAnderson v. Dist. Bd ofTrs. ofCent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996)). Juback therefore puts Michaels on fair notice of the claims
against it.
B.
Count I - "Coercion" in Violation of§ 440.205
Section 440.205, Fla. Stat., prohibits employers from "discharg[ing], threaten[ing] to
discharge, intimidat[ing], or coerc[ing] any employee by reason of such employee's valid claim for
compensation or attempt to claim compensation under the Workers' Compensation Law." Michaels
argues that this claim rests on "naked assertions devoid of further factual enhancement" and
therefore should be dismissed. To the contrary, the Complaint contains sufficient factual allegations,
when taken in the light most favorable to Juback, to plausibly state a claim that Juback was
"coerce[d]" by Michaels with regard to his claim for workers' compensation (see Dkt. 1 ~~ 9, 12,
15-17, 19-21).
C.
Count III - FMLA Interference
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 under the FMLA; and
retaliation claims, in which an employee asserts that his employee discriminated against him because
he engaged in activity protected by the FMLA. Pereda v. Brookdale Senior Living Cmtys., Inc., 666
F.3d 1269, 1272 (I Ith Cir. 20l2);Sheltonv. Price Waterhouse Coopers, LLP,No. 8:12-cv-02757-T27TBM, 2014 WL2581348, at *1 (M.D. Fla. May 2, 2014) (Whittemore, J.);see 29 U.S.C. 2615(a).
Juback asserts only an interference claim.
Employers are prohibited from "interfering with, restraining, or denying the exercise of (or
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attempts to exercise) any rights" protected by the FMLA. 29 C.F.R. § 825.220(a)(l). Interference
includes refusing to authorize FMLA leave, discouraging the use of FMLA leave, manipulation to
avoid responsibilities under the FMLA, and changing the essential functions of the job in order to
preclude the taking ofleave. Id. § 825.220(b). To state a primafacie interference claim, Juback must
allege that he was denied a benefit to which he was entitled under the FMLA. Pereda, 666 F.3d at
1274. He has not done so. Although Juback alleges that Michaels interfered with his FMLA rights
by not informing his of those rights, he has not alleged that Michaels' failure to provide him with
such information prejudiced him in any way. See Ridings v. Riverside Med. Ctr., 53 7 F .3d 755, 764
(7th Cir. 2008) (employer entitled to summary judgment on interference claim where employee did
not allege that employer's initial failure to provide FMLA information resulted in prejudice) (citing
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90-91 (2002)).
Juback contends that he has sufficiently alleged prejudice by alleging that "Michaels
interfered with Juback's right to take FMLA leave by verbally abusing him for the injury and
terminating him in violation of29 U.S.C. § 2615" (Dkt.
1~44).
There is nothing in the Complaint,
however, alleging that Michaels' failure to provide Juback with FMLA information resulted in
verbal abuse or termination. Indeed, such an inference is implausible.
In addition, Juback does not allege a "serious health condition that makes the employee
unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(l)(D). A
"serious health condition" is an injury that involves "continuing treatment by a health care provider."
29 U.S.C. § 2611(1 l)(B). Juback argues that he alleges a serious health condition requiring
"continuing treatment" because he saw a physician twice in one week. Under the regulations
enforcing the FMLA, however, "continuing treatment" includes (a) a "period of incapacity of more
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than three consecutive, full calendar days," (b) a period of incapacity due to pregnancy or prenatal
care, (c) a period of incapacity or treatment due to a chronic serious health condition, (d) a period
of incapacity which is permanent or long-term due to a condition for which treatment may not be
effective, or (e) a period of absence to receive multiple treatments. 29 C.F.R. § 825.115. Juback's
allegations do not fit into any of the categories.
Because Juback has not alleged prejudice resulting from Michaels' alleged interference or
a "serious health condition" requiring "continuing treatment," Count III is due to be dismissed.
D.
Count IV - "Violation of Chapter 448 of the Florida Statutes"
This Count is impermissibly vague. Juback appears to argue that§ 448.08 creates a cause of
action for unpaid wages, but that argument is not supported by the plain text of the statute. Section
448.08 states, in full, "The court may award to the prevailing party in an action for unpaid wages
costs of the action and a reasonable attorney's fee."§ 448.08, Fla. Stat. The statute does not appear
to create a cause of action for unpaid wages, and such an interpretation is not supported by Florida
law. See Joseph v. Commonwealth Land Title Ins. Co., 707 So. 2d 376, 377 (Fla. 5th DCA 1998)
("[S]ection 448.08 ... allows a court to award attorney's fees to the prevailing party in an action for
unpaid wages."). The cases cited by Juback indicate that there exists a Florida common law claim
for "unpaid wages," but Juback's pleading of Count IV renders it unclear whether this is the claim
he asserts. See, e.g., Elder v. Islam, 869 So. 2d 600, 601-02 (Fla. 5th DCA 2004) (defining "wages"
forthe purposes of an unpaid wages claim); McRae v. Douglas, 644 So. 2d 1368, 1371 n.l (Fla. 5th
DCA 1994) (characterizing claim as "a common law action for recovery of unpaid wages "). 1
1It is likewise unclear whether unpaid reimbursement for mileage and other expenses constitute "unpaid wages"
for the purposes of§ 448.08. See Elder, 869 So. 2d at 601-02 (defining "wages" as all compensation paid by an employer
for the performance of service by an employee, including periodic salary, sales commissions, bonuses, severance pay,
vacation pay, dismissal wages, reasonable value of board, tips, stock options, royalties, and any other similar advantage
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Accordingly, Count IV must be dismissed because it fails to put Michaels on fair notice of
the claim asserted. If Juback intends for Count IV to be a common law action for unpaid wages, he
must plead it as such.
E.
Counts V & VI - Unjust Enrichment and Implied Contract
Michaels argues that Counts V and VI should be dismissed because they are equitable claims
and Juback has failed to plead that there is no available legal remedy. These claims are adequately
pleaded in the alternative, however. Fed. R. Civ. P. 8(a)(3), 18(a); Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 508 (1959).
F.
Motion to Strike
Michaels moves to strike the demands for attorneys' fees in Counts I and II, and the claim
for "emotional" and punitive damages in Count III. Juback did not respond to the motion to strike,
and it is therefore deemed unopposed. Because attorneys' fees are not available under§ 440.205, and
emotional and punitive damages are not available under the FMLA, the motion is due to be granted.
See Flores v. RoofTile Admin., Inc., 887 So. 2d 360, 361 (Fla. 3d DCA 2004) (Chapter 440 does not
provide for attorneys' fees); Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir.
1999) (FMLA does not allow recovery for emotional distress); Farrell v. Tri-Cnty. Metro. Transp.
Dist. of Or., 530 F.3d 1023, 1025 (9th Cir. 2008) ("well-settled" that the FMLA does not provide
for recovery of punitive damages).
received from the individual's employer or directly with respect to work for him); Black's Law Dictionary 1416 (5th ed.
1979) ("Term [wages] should be broadly defined and includes not only periodic monetary earnings but all compensation
for services rendered without regard to manner in which such compensation is computed."); Black's Law Dictionary 767
(3d pocket ed. 2006) (defining "wage" as "[p]ayment for labor or services, [usually] based on time worked or quantity
produced").
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Accordingly,
1) Defendant's Motion to Dismiss and to Strike (Dkt. 8) is GRANTED in part an4
DENIED in part.
2) Counts III and IV are DISMISSED without prejudice.
3) The references to attorneys' fees in Counts I and II, and the reference to punitive damages
in Count III, are STRICKEN.
4) In all other respects, the motion is DENIED.
5) Plaintiff is GRANTED leave to file an amended complaint on or before August 8, 2014.
DONE AND ORDERED this .2.:2-iay of July, 2014.
Copies to: Counsel of Record
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