Sampson et al v. Stickbay, Inc. et al

Filing 48

ORDER: The Wyndham Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. # 44 ) is DENIED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/15/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GWENDOLYN MILLER, HENRIETTA
DEVINE, LATOYA D. MINGO,
TERRANCE D. HAYES, RASHAD D.
GORDON, CHARLENA S. WILLIAMS,
SONIA S. CARGILE, MELESA D.
THOMPSON, CHARLES D. WILLIAMS,
BETTY STEWART, and HENRY J.
SMITH,
Plaintiffs,
v.

Case No.: 8:15-cv-2040-T-33TBM

STICKBAY, INC. d/b/a DAYS INN,
MITCH & MURRAY HOTELS, INC.
d/b/a DAYS INN/MPR, LLC, JAMIL
KASSAM, DAYS INNS WORLDWIDE,
INC., and WYNDHAM WORLDWIDE
OPERATIONS, INC.,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Defendants
Days Inns Worldwide, Inc. and Wyndham Worldwide Operations,
Inc.’s

(collectively

referred

to

herein

as

the

“Wyndham

Defendants”) Motion to Dismiss Second Amended Complaint (Doc.
# 44), filed on March 28, 2016. Plaintiffs Gwendolyn Miller,
Henrietta Devine, Latoya  D. Mingo, Terrance D. Hayes, Rashad
D. Gordon, Charlena S. Williams, Sonia S. Cargile, Melesa D.
Thompson, Charles D. Williams, Betty Stewart, and Henry J.
Smith filed a Response in Opposition to the Motion on April

18, 2016. (Doc. # 47). For the reasons that follow, the Motion
is denied.
I.

Background
The following factual discussion, taken from Plaintiffs’

Second Amended Complaint (Doc. # 31) is accepted as true for
the purpose of addressing the Motion. Defendants Stickbay,
Inc. and Mitch & Murray Hotels, Inc. are Franchisees of the
Wyndham Defendants. (Id. at ¶ 12). Franchisees operate a Days
Inn located in Tampa. Id. Defendant Jamil Kassam is the
President of Stickbay, Inc. and Mitch and Murray Hotels, Inc.
Id. at ¶ 12.  Kassam employed Plaintiffs as housekeeping and
maintenance employees. (Id. at ¶ 13). 
Plaintiffs claim that they endured, on a frequent basis,
racially discriminatory and harassing treatment during their
employment.

This

treatment

included

racially

derogatory

comments, disparate treatment in allowing only non-AfricanAmerican

employees

to

use

cell

phones

while

working,

significantly reduced work hours, and more menial and laborintensive work than non-African-American employees. (Id.).
Twyla

Sampson,

(a

Plaintiff

who,

at

this

point

in

the

litigation, has settled out of the case), as Housekeeping
Supervisor and on behalf of herself and all Plaintiffs,
complained to Defendants about the treatment. (Id. at ¶ 16).

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Several Plaintiffs then filed charges of discrimination with
the U.S. Equal Employment Opportunity Commission and the
Florida Commission on Human Relations, complaining of racial
discrimination and unfair treatment in the workplace. (Id. at
¶ 17). Additionally, Plaintiff Charlena Williams complained
to the Occupational Safety and Health Administration about
health and safety violations at the hotel. (Id. at ¶ 18).
Plaintiffs claim that they were “discriminated against
and subsequently terminated on the basis of their race,
African-American, retaliated against for forging complaints
of unlawful activity, and replaced by non-African-American
employees.” (Id. at ¶ 11).

Accordingly, Plaintiffs filed a

state court action claiming violation of Title VII of the
Civil Rights Act of 1964 and other statutes on July 30, 2015.
Plaintiffs filed an Amended Complaint on August 15, 2016,
which

Defendants

removed

to

this

Court

based

on

the

presentation of a federal question. (Doc. ## 1, 2).
With leave of the Court, Plaintiffs filed their Second
Amended Complaint on February 15, 2016. (Doc. # 31). In counts
one, two, and three, Plaintiffs allege disparate treatment,
retaliation, and a hostile work environment in violation of
the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq.,
(“FCRA”). In counts four, five, and six, Plaintiffs allege

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violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., (“Title VII”). In counts seven, eight,
and nine, Plaintiffs allege violations of 42 U.S.C. § 1981.
In count ten, Plaintiffs allege Defendants engaged in illegal
retaliatory action in violation of Florida’s Private Sector
Whistle-Blower’s Act, Fla. Stat. § 448.102.
At this juncture, the Wyndham Defendants seek an order
dismissing them from the case arguing that (1) Plaintiffs
failed to comply with Fed. R. Civ. P. 8(a)(2) and 12(b)(6);
(2) Plaintiffs did not exhaust their administrative remedies
by specifically naming the Wyndham Defendants in the EEOC
charges; and (3) the claims against the Wyndham Defendants
asserted in the Second Amended Complaint do not relate back
to filing of the Amended Complaint and are accordingly timebarred.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th

4

Cir. 1990) (“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s 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. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
III. Analysis
A.

Rules 8(a)(2) and 12(b)(6), Fed. R. Civ. Pro.

The Wyndham Defendants first move to dismiss under Rules
8(a)(2)

and

12(b)(6).

They

allege

the

Second

Amended

Complaint has no facial plausibility because it lacks factual
content. The Wyndham Defendants contend that instead the
Second Amended Complaint contains mere legal conclusions and
should be dismissed.
Having reviewed the Second Amended Complaint, the Court
determines that Plaintiffs have provided sufficient factual

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allegations to meet the pleading standards articulated in
Twombly. The Complaint gives the Wyndham Defendants notice of
what Plaintiffs’ claims are and the grounds on which the
claims rest. Plaintiffs state that Defendants do business as
Days Inn. (Doc. # 31 at ¶ 12). The Wyndham Defendants submit
Plaintiffs failed to allege facts demonstrating they were
Plaintiffs’ employers. Because Plaintiffs are not seeking to
impose

liability

on

the

Wyndham

Defendants

as

joint

employers, there is no need to allege such facts. Instead,
Plaintiffs seek to prove the Wyndham Defendants are liable
through vicarious liability.
The Second Amended Complaint includes allegations that
are specifically aimed at demonstrating vicarious liability.
For instance, Plaintiffs allege:
Defendants are liable for treatment and hostility
towards Plaintiffs because it controlled the
actions and inactions of the persons making
decisions affecting Plaintiffs or it knew of should
have known of these actions and inactions, or
participated in same, and failed to take prompt and
adequate remedial action or took no action at all
to prevent the abuses to Plaintiffs.
(Id. at ¶¶ 36, 77).

Plaintiffs also contend: “the actions of

agents of Defendants, which were each condoned and ratified
by Defendants, were of a race-based nature and in violation
of the laws set forth herein.” (Id. at ¶ 57).

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Plaintiffs

further

submit:

Defendants,

“In

which

essence,

were

each

the

actions

condoned

and

of

agents

of

ratified

by

Defendant, were of a race-based nature and in violation of
the laws set forth herein.” (Id. at ¶¶ 37, 57, 78).
At this stage of the case, the Court accepts Plaintiffs’
factual allegations and determines that they are sufficient
to withstand Defendants’ Rule 8(a)(2) and 12(b)(6) Motion to
Dismiss.
B. Exhaustion of Administrative Remedies
The Wyndham Defendants next argue that Plaintiffs failed
to exhaust their administrative remedies based on Plaintiffs’
failure to identify the Wyndham Defendants in their EEOC
charges of discrimination. Generally, “a person who wants to
file a lawsuit under Title VII must first file a charge with
the Equal Employment Opportunity Commission alleging a Title
VII violation and exhaust all remedies provided by the EEOC.”
Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358 (11th
Cir. 1994). “Ordinarily, a party not named in the EEOC charge
cannot be sued in a subsequent civil action.” Id.

However,

these requirements are relaxed in certain situations, as
explained in Virgo.
There, the manager of a Sheraton Ocean Inn hotel sexually
harassed Virgo, an employee, on multiple occasions. Id. at

7

1354.

Riviera

Beach

Associates,

owned

the

hotel

and

contracted with Sterling Group, Inc. to manage the hotel. Id.
at 1353. One of Sterling’s employee was the individual that
perpetrated the sexual harassment against Virgo. Id. When
Virgo filed a charge of discrimination with the EEOC and the
FCHR, she named Sheraton Ocean Inn and Sterling Group, but
failed to include Riviera Beach Associates, as a responsible
party. Id. at 1354. Virgo then brought an action for violation
of Title VII and included Riviera Beach as a defendant. Id.
The court did not penalize Virgo for her failure to
include Riviera Beach in the EEOC charge, reasoning that
“Riviera Beach knew of the pending EEOC charges and had an
opportunity to participate in the conciliation process, thus
satisfying the purposes of Title VII.” Id. at 1359.
The court elaborated that the purpose behind the EEOC’s
requirement to name the person charged is to provide notice
and to provide an opportunity for conciliation to the parties.
Id. at 1358. Thus, instead of using a rigid test, the court
should look at several factors to see if the requirement’s
purpose is met. Id. at 1359. The factors include
(1) the similarity of interest between the named
party and the unnamed party, (2) whether the
plaintiff could have ascertained the identity of
the unnamed party at the time the EEOC charge was
filed, (3) whether the unnamed parties received

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adequate notice of the charges, (4) whether the
unnamed parties had an adequate opportunity to
participate in the reconciliation process, and (5)
whether the unnamed party actually was prejudiced
by its exclusion from the EEOC proceedings.
Id.
Here, Plaintiffs were not represented by counsel at the
time

the

similarity

EEOC
in

discrimination
names

between

charges

were

Defendants

filed.

would

make

The
it

difficult for Plaintiffs to legally identify the correct
party

without

counsel.

Additionally,

according

to

the

Franchise Agreement (Doc. # 30), Franchisees were required to
inform Franchisors of all potential and pending litigation.
Accordingly, the Court determines that the purpose behind the
EEOC

requirements

has

been

satisfied,

and

the

Wyndham

Defendants’ inclusion in the suit should not have come as a
surprise.

There

is

no

unfair

prejudice

to

the

Wyndham

Defendants as a result of their exclusion from the EEOC
proceedings. The Court accordingly declines to dismiss the
Wyndham Defendants from this case under the circumstances
presented here.
C. Relation Back to the Original Complaint 
Lastly, the Wyndham Defendants argue that the filing of
the Second Amended Complaint does not relate back to the
filing of the initial complaint, and as such the claims now

9

asserted against the Wyndham Defendant are time-barred.
Under 42 U.S.C. § 2000e-5(f)(1), a plaintiff must file
suit within 90 days of receiving the right to sue letter.
Norris v. Fla. Dep’t of Health & Rehab. Servs., 730 F.2d 682,
683 (11th Cir. 1984). Here, if the filing of the Second
Amended Complaint does not relate back to the filing of the
initial Complaint, some of the newly filed claims against the
Wyndham Defendants would be time-barred. Pursuant to Rule
15(c)(1)(C)(ii), Plaintiffs argue that the Wyndham Defendants
should have had, at a minimum, constructive notice within the
time limit for service under Rule 4(m). The Court accepts
this representation at the Motion to Dismiss stage. The Court
preliminarily finds that the Wyndham Defendants should have
been on notice regarding this suit based on the Franchise
Agreement and that the Wyndham Defendants were initially not
named solely based on Plaintiffs’ mistaken identification of
the proper corporate party. See Krupski v. Costa Crociere
S.P.A., 560 U.S. 538, 541 (2010)(“Rule 15(c) of the Federal
Rules of Civil Procedure governs when an amended pleading
relates back to the date of a timely filed original pleading
and is thus timely even though it was filed outside an
applicable statute of limitations.”). As stated in Krupski,
“Where an amended pleading changes a party or a party’s name,

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the Rule requires, among other things, that ‘the party to be
brought in by amendment

. . . knew or should have known that

the action would have been brought against it, but for a
mistake concerning the proper party’s identity.” Id. at 542.
The Court accordingly denies the Motion to Dismiss.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
The Wyndham Defendants’ Motion to Dismiss Plaintiffs’
Second Amended Complaint (Doc. # 44) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of June, 2016.

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